First Amendment free speech rights of employees depends on the nature of the employee's speech

The plaintiffs [Plaintiffs] in the action appealed the dismissed their First Amendment retaliation claim under 42 U.S.C. §1983 against the County of Rockland and additional named defendants [Defendants]. Plaintiffs alleged that Defendants terminated them in retaliation for allegations made concerning the Defendants. The federal district court concluded that Plaintiffs did not engage in speech as a private citizen and thus their First Amendment retaliation claim failed as a matter of law. The United States Circuit Court of Appeals for the Second Circuit agreed. 

Citing Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, the Circuit Court opined in order to prevail, a government employee or contractor must establish that "(1) his speech was protected by the First Amendment; (2) he suffered an adverse employment action by the [employer]; and (3) there was a causal connection between the adverse action and his speech." 

Further, said the Circuit Court, to determine whether a public employee speaks as a citizen for purposes of a First Amendment retaliation claim, courts ask whether (1) “the speech falls outside of the employee’s official responsibilities,” and (2) “a civilian analogue exists.” 

Such a determination requires an examination of “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two”. The speech at issue can be pursuant to "a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer.”* 

Here, opined the Circuit Court of Appeals, "the uncontroverted evidence in the record demonstrates that [Plaintiff] engaged in speech as an employee, rather than as a [private] citizen." Accordingly, the Circuit Court held "the district court properly granted summary judgment for [Defendants] on the [Plaintiffs'] First Amendment retaliation claim." 

* The Circuit Court noted that in Lane v. Franks, 573 U.S. 228, the Supreme Court had emphasized that “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee -- rather than citizen -- speech .... the critical question ... is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” 

Click HEREto access the Second Circuit's decision.

 

Summaries of recent personnel disciplinary decisions posted by the New York City Office of Administrative Trials and Hearings [OATH]

Use of excessive force - OATH Administrative Law Judge Julia H. Lee recommended termination of employment for a correction officer who used excessive force when he struck a restrained inmate in the face and submitted a false and misleading use of force report. While the inmate had thrown food at the officer through an open slot of his cell and later alluded to there being feces in the food, Judge Lee found that neither the inmate’s verbal abuse and threatening language nor the food-throwing justified the officer’s strike to his face. ALJ Lee also found that the officer’s statement in his use of force report that the inmate was trying escape from escort officers was inaccurate as video evidence demonstrated that the inmate was physically compliant throughout the extraction and escort. Click HERE to access Judge Lee's decision. 

Excessive absenteeism - OATH Administrative Law Judge Kara J. Miller recommended termination of employment for a non-competitive class employee charged with excessive absenteeism under section 75 of the Civil Service Law, finding that the employee was continuously absent for more than 295 days following a workplace injury when a bathroom stall door fell on her. In her report and recommendation, Judge Miller rejected the employee’s argument that the proceeding should be converted to a Civil Service Law section 71 proceeding involving a determination of permanent incapacitation due to disability ALJ Miller found that the Court of Appeals has acknowledged that the applicability of section 71 to non-competitive class employees remains an open question for the state legislature to resolve and that even if section 71 were applicable to non-competitive class employees, it does not provide for a hearing prior to termination. Click HERE to access Judge Miller's decision. 

Off-duty misconduct - OATH Administrative Law Judge Michael D. Turilli recommended dismissing an off-duty misconduct charge against a correction officer who was arrested for assaulting his wife. The criminal charges against the correction officer had been dismissed prior to the trial before OATH and the officer’s wife declined to testify. ALJ Turilli found that the testimony of the arresting police officer, who recounted hearsay statements made by the wife at the scene over three years ago, was not sufficiently reliable to sustain the charge. Click HERE to access Judge Turilli's decision. 

Leaving work early - OATH Administrative Law Judge Kevin F. Casey recommended a 45-day suspension for a hospital service aide for leaving work early and moving supplies, including personal protective equipment, from a nurses’ station to a closet during the COVID-19 pandemic without documenting his actions. ALJ Casey found that the hospital had failed to prove that the service aide stole hospital property, stored alcohol on the hospital premises, refused to surrender his keys, violated the Conflicts of Interest Law, or intimidated co-workers into signing a petition. Click HERE to access Judge Casey's decision. 

Submitted misleading report - OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that a correction officer’s use of force during an escort of an inmate was appropriate but that the officer had submitted a false or misleading report about the incident. The Department of Correction had charged the officer with using excessive force against an inmate while he was being removed from a cell. Judge McGeachy-Kuls found that the officer’s force was not excessive because the inmate was not compliant. However, ALJ McGeachy-Kuls found that the officer submitted a false or misleading report about the incident and recommended a 30-day suspension. Click HERE to access Judge McGeachy-Kuls' decision. 

False "use of force" report - OATH Administrative Law Judge Christine Stecura recommended that a correction officer be suspended for 60 days for using excessive force and submitting a false and misleading use of force report about an incident in which he struck an inmate in the face. ALJ Stecura rejected the officer’s argument that force was appropriate because the inmate had a cane and had made a threatening gesture. Click HERE to access Judge Stecura's decision. 

Sleeping while on duty - OATH Administrative Law Judge Julia Davis recommended that a Special Officer in the Department of Citywide Administrative Services be suspended for 20 days for making false statements and sleeping while on duty, both of which the Special Officer admitted during trial. ALJ Davis found that DCAS had failed to prove that the Special Officer slapped a commuter on her buttocks because the complainant’s identification of the Special Officer as the perpetrator was not sufficiently reliable. Click HERE to access Judge Davis' decision.

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE or click to Read a FREE excerpt (requires Adobe Reader). 

CPLR Article 78 petition alleging Public Advocate improperly criticized and interfered with Union leadership dismissed for failure to join necessary parties

The text of the decision is posted below:

City Empls. Union Local 237, Intl. Bhd. of Teamsters

v

New York City Bd. of Collective Bargaining
2022 NY Slip Op 33263(U)

This opinion is uncorrected and not selected for publication in the Official Reports.

The Court was unable to hear oral argument as scheduled; however, the parties have agreed to waive argument and mark the matter submitted.

Accordingly, upon consideration of the foregoing documents, the Court issues the below Decision and Order.

Plaintiff (hereinafter “Union”) claims that Jumaane Williams, as Public Advocate, improperly criticized Union leadership and otherwise interfered with Union leadership’s relationship with its members by making pronouncements/statements that while school security agents would be phased  out of schools these agents would retain their pay and benefits in new roles.

 Petitioner brought these claims before the NYC Bd. of Collective Bargaining (hereinafter “Board”), which found that the Public Advocate’s pronouncements/statements were not direct dealings with the Union’s members and did not improperly interfere with the Union’s relationship with its members. Petitioner seeks to have that determination annulled under Art. 78 of the CPLR. Respondent opposes, contending the Board’s determination was properly supported and seeks dismissal of the petition.

As an initial matter, the instant petition fails to join necessary parties, including Public Advocate Williams and the NYPD, the employer of the Union’s members. CPLR § 1001 directs that necessary parties are those “who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action”. Likewise, where a proceeding is brought pursuant to Article 78 of the CPLR, the government entity that performed the challenged action must be a named party (CPLR § 7801).

Here, the petition challenges, inter alia, the Public Advocate’s actions.

Any relief accorded in this matter will affect the rights of the NYPD, as employer of the petitioner’s members. Accordingly, the Public Advocate and NYPD are necessary parties (see e.g. Mahinda v. Bd. of Collective Bargaining, 91 AD3d 564 [1st Dept 2012]). Notwithstanding, petitioner has failed to name the Public Advocate or the NYPD.

Consequently, the petition must be dismissed for failure to join necessary parties. Granting amendment to name these necessary parties would be improper, as the statute of limitations to bring claims against these parties has passed (Watkins v. New York City Dep’t of Educ., 48 AD3d 339 [1st Dept 2008]; see also Matter of Brancato v. New York State Bd. of Real Prop. Services, 7 AD3d 865 [3d Dept 2004]). 

Alternatively, and assuming, arguendo, that the Court were to reach the merits of the petition, the standard of review by this Court is well established – the Court must determine whether there is a rational basis for the Board’s determination or whether the determination is arbitrary and capricious, contrary to law, or otherwise an abuse of discretion (Matter of Gilman v. New York State Div. of Housing and Community Renewal, 99 NY2d 144 [2002]; Uniformed Firefighters Assn. of Greater N.Y., Local 94 IAFF, ADL-CIO v. City of New York, 106 AD3d 564 [1st Dept 2012]). “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” (Peckham v. Calogero, 12 NY3d 424 [2009]; see also Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]). When the determination is supported by a rational basis, this Court must sustain the determination, notwithstanding that the Court would reach a different result (Peckham v. Calogero, 12 NY2d at 431). Stated differently, the Court does not perform a de novo review of the facts or merits (Matter of City of Watertown v. State of N. Y. Pub. Empl. Relations Bd., 95 NY2d 73 [2000]).

Here, the Board found that the Public Advocate was acting within his legislative duties when he issued the pronouncements at issue and was not, therefore, improperly interfering with the Union or the Union leadership’s relationship with its members. It is beyond cavil that the Public Advocate is an elected official and a non-voting member of the City Council, with the right to introduce and co-sponsor legislation. Notably, the Public Advocate, inter alia, testified before the Council in support of legislation implementing those ideas contained in the Public Advocate’s pronouncements/statements. Accordingly, the Board’s determination that the pronouncements at issue were related to the Public Advocate’s legislative duties, and were not improper, is soundly based within reason and the facts.

Likewise, the Board’s findings that the Public Advocate’s pronouncements/statements did not attempt to negotiate the Union member’s terms and conditions of employment and the statements did not interfere with or coerce the Union’s members, is supported by a rational basis. The Public Advocate has no negotiating relationship with the Union’s membership and is not involved in the Union’s collective bargaining negotiations. Furthermore, the Public Advocate’s statements cannot reasonably be interpreted as an attempt to discourage employees from engaging with the Union.

Consequently, vacating or annulling the Board’s determination, as sought by
petitioner, is inappropriate.

Accordingly, it is

ORDERED that the petition is denied for failure to join necessary parties;
and it is further

ORDERED that, as an alternative holding, the petition is denied on the
merits as the Board’s determination is supported by a rational basis, not
contrary to law, and not an abuse of discretion; and it is further

ORDERED that the petition is dismissed in its entirety and the matter
shall be marked disposed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

FILED: NEW YORK COUNTY CLERK 09/28/2022 03:22 PM  INDEX NO. 160061/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/28/2022

Click HEREto access the Supreme Court decision posted on the Internet.

 

Evaluating applications for workers' compensation benefit "reclassification" pursuant to Workers' Compensation Law §35(3)

Workers' Compensation Law §35(3) provides for "extreme hardship re-determinations" in cases where the loss of wage-earning capacity is greater than seventy-five percent. In such situations a claimant may request, within the year prior to the scheduled exhaustion of indemnity benefits, that the Workers' Compensation Board reclassify the claimant to "permanent total disability". 

Considering an appeal from a decision of the Workers' Compensation Board [Board] which ruled that Claimant met the requirements for extreme hardship reclassification pursuant to Workers' Compensation Law §35(3), the Appellate Division observed that the Claimant for workers' compensation benefits had established a workers' compensation claim for injuries to his right shoulder and low back.

Shortly before the expiration of those indemnity benefits, however, Claimant filed a timely "extreme hardship re-determination request (C-35 form)" pursuant to Workers' Compensation Law §35(3). A Workers' Compensation Law Judge granted Claimant's application and reclassified Claimant as permanent total disability due to factors reflecting extreme hardship. The Board affirmed the Judge's decision and the Claimant's employer and its workers' compensation carrier appealed the Board's ruling.

The Appellate Division sustained the Board's determination that Claimant had demonstrated extreme hardship entitling him to reclassification, noting that the Board had considered Claimant's [1] monthly income, which included Social Security disability benefits and other imputed income derived from public assistance programs, [2] his detailed monthly expenses, [3] the fact Claimant's monthly expenses exceed his monthly income did not mandate a finding of extreme hardship, and [4] considered other relevant factors, such as claimant's education and employment perspectives.

Finding that substantial evidence supported the Board's finding that, given the notable shortfall of Claimant's financial ability to meet his monthly obligations once his workers' compensation indemnity benefits were discontinued, and considering Claimant's inability to obtain new employment in order to produce additional income, the Appellate Division opined that Claimant "demonstrated extreme hardship warranting  reclassification pursuant to Workers' Compensation Law §35(3)" by the Board.

Click HEREto access the Appellate Division's decision.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." 

For more information about this e-book click HERE.  

Click HERE to Read a FREE excerpt(requires Adobe Reader).

Government Technology Webinars scheduled for the week beginning October 10, 2022

 Webinars to be held during the week ending October 14, 2022:

Tuesday, October 11 | 1:00pm Eastern

How To Get Bots Right: Understanding and Developing Effective Chatbots

Chatbots are often deployed without fully understanding where automation will be helpful to constituents and where it will not. Using data analytics to map the constituent journey and create bots with consideration to the constituent's and agency's perspectives helps prevent bots from leading users to a dead end with no valuable alternative. Join us for a webinar on the problem with and promise of chatbots. 

Click here to Register to attend 

 

Thursday, October 13 | 1:00pm Eastern

Three's a Cloud: Why a Multicloud Solution is Better for Government

As the demands on state and local governments continue to grow in number and complexity, agencies are adopting cloud technology to lower costs, bolster their cybersecurity posture and improve service delivery. And cloud service providers have leveraged their experience to develop scalable tools that can solve a wide range of system challenges. The question is no longer which cloud to use but which combination of cloud services can best help organizations achieve their missions. Each cloud service was initially designed to solve a different problem, so they have matured with different strengths and capabilities. Multicloud is much more than using services in each cloud independently. Multicloud is about connecting the best services and capabilities of each cloud.  

Click here to Register to attend 

 

Sneak Peek at Next Week’s Webinars: 

 

Tuesday, October 18 | 1:00pm Eastern

Managing Cyber Risks: Exploring Cybersecurity as a Managed Service

Cybersecurity challenges are getting tougher by the day. Most state and local governments don’t have the in-house staff or resources to keep up. That’s why many of them are turning to a managed services model for security. We’ve lined up three public sector cyber experts to discuss this approach, and when it makes sense – and when it doesn’t – for different types of agencies. Join us to hear new cyber strategies and approaches for state and local governments. You won’t want to miss it!

Click here to Register to attend 

 

Wednesday, October 19 | 1:00pm Eastern

Centering Constituent Concerns with an Environmental, Social and Governance Framework

Environmental, Social, and Governance (ESG) frameworks have emerged in the private sector as a way to incorporate social good into the other work an organization is engaged in. It’s a lens that can enhance and inform the way a company thinks about risks, opportunities, and outcomes. But when people think about improving their communities and addressing the major issues that impact daily life, they look to governments – not corporations or individuals – as the institutions responsible for meeting that mission. While many ESG initiatives are intrinsic to the mission of government agencies, thinking about them as interrelated pieces under a common framework helps set goals, measure success, and ensure accountability. Join us for a webinar on how adopting an ESG framework can be a powerful way to help broaden governments’ mission to address issues that matter to the communities they serve.

Click here to Register to attend 

 

Friday, October 21 | 2:00pm Eastern

Accelerating Improvements in the Constituent Experience with APIs

While making the leap to digital modernization may feel almost impossible, an Application Programming Interface (API) can help governments quickly improve service delivery without overhauling legacy systems. Learn how governments can use APIs to give residents a consumer-grade experience while maintaining their back-office systems during this webinar with Government Technology on October 21!

Click here to Register to attend

To view upcoming and on-demand webinars, visit webinars.govtech.com.

For assistance with registration, contact:
Jeremy Smith, jsmith@erepublic.com (916) 932-1402 direct