September 2020 AELE case notes, publications, and seminar announcements

The Americans for Effective Law Enforcement [AELE] has announce the following:

Public Safety Discipline and Internal Investigations Seminar---Attend Virtually On Demand. 

A 3½ day updated seminar on "Public Safety Discipline and Internal Investigations" begins September 28, 2020 and ends at Noon on October 1, 2020. This is an ON-DEMAND presentation, enabling those registered to attend, review, and complete "the entire seminar at your convenience, in comfortable surroundings, and gives you the opportunity to replay presentations to make sure you hear the important points of the many presenters." For registration and additional information click on http://www.aele.org/public-safety-discipline-and-internal-investigations.html

September Law Enforcement Liability Reporter: 

This issue has cases on assault and battery: physical, electronic control weapons: dart mode, failure to disclose evidence, false arrest/imprisonment: no warrant, false arrest/imprisonment: warrant, firearms related: accidental use, firearms related: intentional use, immigrants and immigration issues, and search and seizure: body cavity. http://www.aele.org/law/2020all09/LR2020SEP.pdf

September Fire, Police & Corrections Personnel Reporter: 

This issue has cases on age discrimination, collective bargaining, disciplinary interviews & compelled reports, disciplinary punishment, handicap/abilities discrimination: reasonable accommodation, pensions, religious discrimination, retaliatory personnel action, and wrongful discharge.  http://www.aele.org/law/2020all09/FP2020SEP.pdf

September Jail and Prisoner Law Bulletin: 

This issue has cases on First Amendment, gang activity, inmate funds, Prison Litigation Reform Act: exhaustion of remedies, Prison Litigation Reform Act: “three strikes” rule, prisoner assault: by inmates, prisoner discipline, prisoner suicide, and religion. http://www.aele.org/law/2020all09/JB2020SEP.pdf

New York State's Governor directs the State's Division Of Human Rights to investigate reports of a fire truck in a parade displaying a Confederate flag

Learning of a fire truck in a parade displayed a Confederate flag, New York State Governor Andrew M. Cuomo said "I'm appalled by reports that a Confederate flag was flown on a Brookhaven Fire Department truck at a Patchogue parade. We have zero tolerance for symbols of racism or division, and I have directed the New York State Division of Human Rights to investigate the incident immediately."

On August 31, 2020, a newspaper, Newsday, published an article concerning the incident. The article is posted on the Internet at:

https://www.newsday.com/long-island/suffolk/confederate-flag-brookhaven-patchogue-firetruck-1.48765917.

The Arizona State Supreme Court adopts The New Civil Liberties Alliance's proposed changes to court rules

The New Civil Liberties Alliance [NCLA], a nonpartisan, nonprofit civil rights group, announced that the Arizona Supreme Court "adopted verbatim" an NCLA-drafted amendment to the court's Judicial Review of Administrative Decisions Rules making it easier for litigants to obtain Superior Court stays of administrative decisions.

The new rule goes into effect starting January 1, 2021 and affects all appeals from the final decisions of all Arizona state agencies that are required to go to the  Arizona Superior Court.

The text of the amendment is posted on the Internet at https://nclalegal.org/wp-content/uploads/2020/08/Order-R200008.pdf.

For information about NCLA click on https://nclalegal.org/about/.

Basics of federal law regulating federal, state, municipal and certain other officers and employees engaging in partisan political activities

5 U.S.C. §7321, et seq, An Act to Prevent Pernicious Political Activities and typically referred to as the Hatch Act, was enacted by Congress to express its policy that "employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation." Recently significant attention has been focused on provisions set out in law prohibiting partisan political activities by most officers and employees serving in executive branch of the federal government. 

On April 20, 2020, the Congressional Research Service (CRS), a nonpartisan shared staff to congressional committees and Members of Congress, posted a publication, The Hatch Act: A Primer, on the Internet at A Guide to the Hatch Act for Federal Employees - OSC.gov .

The Hatch Act, however, also applies to state officers and employees and officers and employees of political subdivisions of a state whose principal employment is in connection with an activity which is financed, in whole or in part, by the federal government. This prohibition, however, does not apply to individuals employed by educational or research institutions that a state supports and certain religious, philanthropic and cultural organizations. For example, the  members of a public school board of education and school officers and teachers employed by a public school are not within the ambit of the Act.

The New York State Bar Association posted an article by Sung Mo Kim, Esq. on the Internet addressing the applicability of the Hatch Act to New York State municipal officers and employees at https://nysba.org/app/uploads/2020/03/HatchActKimMunicipalFall06.pdf.

In addition, public employers in New York State may prohibit its officers and employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test. See https://publicpersonnellaw.blogspot.com/2018/09/public-employers-may-prohibit-its.html.

Removal of an individual's name from an eligible list or from his position by action of the State Department of Civil Service or by a municipal commission

§50.4 of the Civil Service Law provides for removing the name of an individual for appointment to a position in the competitive class from an eligible list or from the position if the individual was appointed from the eligible list. The New York State Department of Civil Service or a municipal civil service commission, as the case may be, on its own initiative or upon the request of an appointing authority, determine if an individual whose name appears on an eligible list, or who has been appointed from an eligible list, should be disqualified for appointment to the position.

For example, §50.4 provides that the State Department of Civil Service may refuse to examine an applicant, or after examination to certify an eligible for appointment to the position for a number of reasons, including, but not limited to:

1. The individual's lack any of the established requirements for admission to the examination or for appointment to the position; or

2. An individual who has been dismissed from a permanent appointment to position in the public service upon stated written charges of incompetency or misconduct; or

3. An individual who has intentionally made a false statement of any material fact in his application; or

4. An individual who has been dismissed from private employments because of habitually poor performance.

No person, however, may be disqualified pursuant to §50.4 unless he has been given a written statement of the reasons for such action and given an opportunity to offer an explanation and to submit facts in opposition to such disqualification.

Further, no person may be removed from his position based on findings made after an investigation of his qualifications and background more than three years after he has been appointed from the list because of finding of facts which if known prior to appointment, would have warranted his disqualification or upon a finding of "illegality, irregularity or fraud of a substantial nature" in his application, examination or appointment, except in the case of fraud.

For example, an employee removed from his position pursuant to §50.4 by the Personnel Officer and Director of Wayne County Civil Service Commission after a making a finding that the employee had “intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application” based on its finding that the employee had falsified his application with respect to his experience as a police officer and concealed facts related to his separation from a previous employment.

Although the employee sued, contending he could not be removed from his position without first being given an administrative due process hearing, the Appellate Division disagreed.*

The Appellate Division opined that "petitioner was accorded his full right to explain his conduct," and that he was not entitled to a hearing, citing Matter of Shraeder v Kern, 287 N.Y. 13. In the words of the Appellate Division, §50.4 “requires no more than that the person be given a written statement of the reasons therefore and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification.”

* 78 A.D.2d 984, affirmed 55 NY2d 1019.