Regulating partisan political activities of certain employees of a federal, state, municipal, educational or research entity

The Hatch Act, 5 U.S.C. §§7321-7326, regulates partisan political activities of most federal executive branch employees.

The Hatch Act [Act] also applies to officers and employees in the executive branch of state and local government whose principal employment involves an activity financed in whole or in part by federal loans or grants. 

However, certain state public officers such as the governor, the mayor of a city, and the elected head of an executive department are exempted from the Act, as are individuals employed by educational or research institutions which are supported in whole or in part by the State or a political subdivision of the State.

The Hatch Act permits public officers and employees to be members of a political party and even serve as officers in that party, but prohibits the use of their official authority or influence for the purpose of interfering with or affecting the results of elections or the nominations of candidates for those elective offices. The Act also bars direct or indirect coercion of public workers to make a loan or to contribute anything of value to an individual or a party or other organization for political purposes.

In Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], the Appellate Division opined that an individual otherwise entitled to an "administrative due process disciplinary hearing” such as one provided by a Taylor Law collective bargaining agreement [CBA] or by state law may be summarily removed from his or her position under certain conditions.

Blackburne had taken a leave of absence from his employment with a state department [Agency] to seek election to a seat on the City Council even though he had been warned, in writing, by the Agency that in so doing he would be in violation of the Hatch Act and his employment would be in jeopardy. Blackburne's was unsuccessful in his efforts to be elected to the City Council and he returned to his position with the Agency.

The United States Special Counsel subsequently filed a complaint with the Merit Systems Protection Board [Board] charging Blackburne with violating the Act. Following a hearing, the Administrative Law Judge [ALJ] issued a decision sustaining the charge and recommending that Blackburne be removed from his position with the Agency. Blackburne filed exceptions to the ALJ's rulings with the Board. 

Ultimately the Board adopted the ALJ's findings and recommendation and ordered the Agency to remove Blackburne from his position or be faced with the loss of Federal funds equal to two years of Blackburne's annual salary. The Agency summarily terminated Blackburne under color of the Board's determination.

Blackburne challenged the Agency's action, contending he could not be removed or be subjected to any disciplinary penalty absent his being accorded administrative due process mandated by the disciplinary grievance procedure set out the relevant Taylor Law CBA and demanded that the matter be submitted to arbitration as mandated by the CBA.

The Appellant Division disagreed, noting that although Blackburne's violation of the Act had not occurred during the performance of his job-related duties, such misconduct could be considered to be within the ambit of Article 33 of the CBA "since a public employee may be disciplined for off-duty misconduct." 

The court then opined that it need not decide that issue since, in its view, Blackburne's grievance was precluded by the CBA's exclusionary clause set forth in §34.1 of the CBA which bars arbitration of matters where "other means of resolution are provided ... by statute ... applicable to the State".

Finding that the Hatch Act accords a full evidentiary hearing to an accused violator and further provides for judicial review of Board orders through a proceeding in federal district court, the Appellate Division concluded that the parties to the CBA had not expressly, directly and unequivocally agree to submit the subject grievance to arbitration.

Further, said the court, "the arbitration of this grievance would offend public policy," citing Matter of Board of Education [Ramapo] 41 NY2d 527. The Appellate Division explaining that the only penalties for violating the Act are either [1] removal from office or employment, or [2] the subsequent loss of Federal funds otherwise available to the employer. In contrast, observed the court, under the CBA an arbitrator has a range of disciplinary options that may be imposed on the wrongdoer that are much less severe than termination of employment.

Consequently, the Appellate Division held that "to permit this matter to proceed to arbitration would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

The Blackburne decision is posted on the Internet at https://www.leagle.com/decision/1995224211ad2d131221. 

 

Determining if an employee's injury sustained "in the line of duty" was an accident for the purposes of eligibility for accidental disability retirement benefits

The NYC Administrative Code §13-252 requires providing Accident Disability Retirement (ADR) benefits to an injured police officer when a medical examination shows that the officer is "physically or mentally incapacitated for the performance of city-service as a natural and proximate result of  [1] an accidental injury received in such city-service while a member" of the Pension Fund and [2] the "disability was not the result of willful negligence" on the part of the officer and [3] the officer "should be retired."

If the Medical Board so finds, the Police Pension Fund Board of Trustees [Board] then makes the final determination regarding the officer's entitlement to ADR and if it finds that ADR should be approved, it becomes effective after the last day a member is on the active NYPD payroll.

Responding to a family disturbance call, Petitioner [Police Officer] was exiting "the passenger side of his patrol van in haste" when his service firearm got caught on the seatbelt, and Police Officer fell to the ground, suffering spine and shoulder injuries. Police Officer's application for ADR benefits was rejected by the Board and Police Officer appealed the Board's determination. Supreme Court granted Police Officer's CPLR Article 78 petition and remanded the matter to the Board "for an award of [ADR] benefits." The Board appealed.

The Appellate Division unanimously reversed the Supreme Court's decision "on the law," denied Police Officer's petition and dismissed Police Office's CPLR Article 78 action.

The Appellate Division explained that Supreme Court erred in granting the Police Officer's petition and in annulling the Board's determination that Police Officer's injury did not arise from an unexpected accident or from a risk inherent in the job of being a police officer. Rather, said the court, "[t]he board correctly determined that [Police Officer's] injury was not caused by an accident as defined in the New York City Administrative Code and applicable case law.

Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Department of City of New York, 57 NY2d 1010, the Appellate Division observed that "not every line-of-duty injury will support an award of accidental disability retirement [and] an injury which occurs without an unexpected event as the result of activity undertaken in the [police officer's] performance of ordinary employment duties ... is not an accidental injury," sustaining the Board's conclusion that Police Officer's injury was not the result of "a sudden, unexpected event".

Quoting from Pratt v Regan, 68 NY2d 746, the Appellate Division observed that "the catching one's heel on a running board [of a motor vehicle] and thus losing balance may be a risk of the work performed [by an employee], but coming down hard upon the other foot in a pothole is not."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05136.htm

 

Former employee's application seeking the removal of a "problem code" from his personnel file rejected

Supreme Court dismissed an Article 78 petition filed by a former employee [Plaintiff] of the New York City Department of Education [DOE] challenging its placement of a "problem code" in Plaintiff's employment file and its refusal of his request to begin an "employment investigation" to remove the code. 

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's petition.

Citing  Matter of Pepin v New York City Dept. of Educ., 148 AD3d 443, the Appellate Division held that DOE:

1. Was not prohibited from considering the Petitioner's service during his earlier probationary period in assessing his eligibility for employment; and

2. The assignment of a "problem code"* based upon the discontinuance of Plaintiff's earlier probationary employment was neither arbitrary nor capricious.

Further, opined the Appellate Division, absent a nomination for employment Plaintiff "lacks entitlement to an employment investigation to remove the code."

* In Pepin v New York City Dept. of Education, 45 Misc 3d 1221(A), DOE contended that it did not maintain "any list of persons ineligible for employment" with DOE and told Supreme Court it used "internal codes based on a past employee's employment record to reflect the reason the employee left [DOE's] service." 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05139.htm

 

October 2020 AELE case notes, publications, and seminar alert

Americans for Effective Law Enforcement, Inc. [AELE] case notes, publications, and seminar alerts for October 2020 are set out below.

Click on the text highlighted in color to access the full alert.

Courts Address COVID-19 Issues in Prisons and Jails. New October AELE Law Journal article posted at http://www.aele.org/law/2020all10/2020-10MLJ301.pdf 

Public Safety Discipline and Internal Investigations Seminar --- Attend Virtually On Demand.  A 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations." A first: You can virtually attend the seminar on demand! The seminar became available on Monday, September 28, 2020 and will remain open for 60 days. You can register during the month of October and still have plenty of time to successfully complete this important AELE seminar. Another first is online registration and payment.  ON-DEMAND attendance at the seminar enables you 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. After completing the seminar, you can print out a customized attendance certificate, or take a short assessment and upon its passing, print out a customized certificate that counts as a program credit toward the exclusive AELE Certified Litigation Specialist designation. For registration and more information, click on http://www.aele.org/public-safety-discipline-and-internal-investigations.html

October 2020 Law Enforcement Liability Reporter: This issue has cases on assault and battery: physical, electronic control weapons: dart and stun modes, false arrest: no warrant, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, First Amendment, and medical care. http://www.aele.org/law/2020all10/LR2020OCT.pdf

October 2020 Fire, Police & Corrections Personnel Reporter: This issue has cases on arbitration procedures, Bill of Rights laws, First Amendment, homosexual employees, political discrimination, retaliatory personnel actions, retirement benefits, sex discrimination, whistleblower protection, and workers’ compensation. http://www.aele.org/law/2020all10/FP2020OCT.pdf

October 2020 Jail and Prisoner Law Bulletin: This issue has cases on medical care, medical care: vision, prisoner assault: by inmate, prisoner death/injury, prisoner suicide, retaliation, search and seizure: body cavity, and strip searches: prisoners. http://www.aele.org/law/2020all10/JB2020OCT.pdf

 

School district audits released during the week ending October 2, 2020

On October 2, 2020, New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued. 

Click on the text highlighted in color to access the full report.

Northern Adirondack Central School District – Financial Condition (Clinton County and Franklin County) Auditors found expenditures have exceeded appropriations by a total $626,000 in 2017-18 and 2018-19. Additionally, the budgets are not structurally balanced and have used $1.5 million in appropriated fund balance to fund operations. Because of the district’s ongoing reliance on fund balance to finance expenditures, the total fund balance has declined from about $2.5 million at the beginning of 2017-18 to about $1 million at the end of 2018-19. In addition, the board has not adopted a multiyear financial plan or a plan to address the declining fund balance. 

Northern Adirondack Central School District – Leave Accruals (Clinton County and Franklin County) Auditors determined that employees are allowed to earn vacation leave accruals that exceed the amount allowed in board-approved contracts. Errors occurred in the leave records maintained for 24 of the 33 (73 percent) employees tested. The district overpaid seven employees $29,686 for unused leave accruals. 

Owego-Apalachin Central School District – Special Education Services and Medicaid Reimbursements (Tioga County)  District officials did not ensure that students received all services in accordance with their individual education programs (IEP). Auditors reviewed IEPs for 28 students who received services in 2018-19. They found that these students did not receive 1,057 (39 percent) required physical therapy, speech therapy, occupational therapy and counseling sessions. Five students did not receive any required therapy and counseling services. In addition, officials did not have procedures in place to reschedule missed sessions. The district was not reimbursed for 427 of 729 eligible services (59 percent) totaling $12,170.  

Red Creek Central School District – Financial Management (Wayne County and Cayuga County)   Auditors determined that actions taken by the board and district officials to manage financial condition were not transparent and more taxes were levied than necessary to sustain operations. Approximately $1.5 million (72 percent) of appropriated fund balance from 2016-17 through 2018-19 was not used as planned. In addition, the board did not adopt multiyear financial and capital plans.

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