A long career as an administrator and the absence of any prior disciplinary action found insufficient to mitigate the disciplinary penalty imposed, dismissal

Petitioner was the administrator of the County's Adult Care Center [ACC], a nursing home. Following a disciplinary hearing, a Hearing Officer found Petitioner guilty of eight of the numerous charges filed against him pursuant to §75 of the Civil Service Law and recommended that he be dismissed from service. The ACC's appointing authority sustained the Hearing Officer's findings with respect to seven of the charges and terminated Petitioner's employment. Petitioner then commenced this CPLR Article 78 proceeding challenging the determination.

Central to evaluating the penalty imposed, dismissal, the Appellate Division noted "Petitioner either suggested to or directed a subordinate to share her login credentials for a database maintained by the Centers for Disease Control and Prevention [CDC] with another employee to enable that employee to fulfill ACC's COVID-19 reporting requirements while the subordinate was on vacation. The ACC contended that such behavior constituted misconduct in violation of ACC's rules and ethics policy,* and, also, displayed incompetence insofar as Petitioner failed to recognize that his behavior could have resulted in ACC incurring penalties.

Petitioner had been invited to register with CDC's partner portal to begin the process of obtaining access to the database which, if approved, would grant him privileges to input data into the database. Petitioner never logged on to the partner portal and was relying on another employee to do the COVID-19 reports when required. 

The Appellate Division's decision notes that when an employee "refused to share her login information - fearing that doing so would violate [ACC's] rules and amount to a crime - [Petitioner]" became angry and purportedly stated, "I don't know why everything is such a big deal here". When told it was unlawful to ask the employee to share login information permitting "... reporting under someone else's credentials...", Petitioner allegedly replied, "why is everyone so uptight here."

The Appellate Division found that "substantial evidence exists" to support the Hearing Officer's determinations with respect to charges Nos. 3, 8, 9, 10 and 16, and said it was "unpersuaded by [Petitioner's] contention that the penalty of termination shocks the conscience and should be annulled."

Conceding that Petitioner had no prior disciplinary record and a long career as a health care administrator, the Appellate Division explained "when considering [Petitioner's]  position as the administrator of a nursing home during the COVID-19 pandemic, which required the highest degree of integrity, diligence and competence in light of the vulnerability of ACC's clients and staff," it could not conclude that the penalty of termination was "so disproportionate to the charged offenses as to shock one's sense of fairness". 

Citing Matter of Scuderi-Hunter v County of Delaware, 202 AD3d at 1317, quoting Matter of Young v Village of Gouverneur, 145 AD3d 1285, the court declined to disturb the penalty imposed, Petitioner's dismissal from his position.

* The record contains a copy of ACC's written code of conduct and a certification by Petitioner acknowledging its receipt. The code of conduct provided, in relevant part, that "[t]he County is committed to complying with the laws and regulations that govern the Federal and State programs that it administers .... [Employees] must abide by the policies and procedures and the standards set by the County." ACC's ethics policy provided: "It is the policy of the County to observe all laws and regulations applicable to its business and to conduct business with the highest degree of integrity. To accomplish this, all [employees] must obey the laws and regulations that govern their work and always act in the best interest of the ... County."

Click HERE to access the decision of the Appellate Division posted on the Internet.

Making public records available for public inspection and copying

In this CPLR Article 78, the Suffern Education Association sought to compel "complete disclosure" of certain "redacted documents" supplied to it by the Suffern Central School District pursuant to the Association's Freedom of Information Law [FOIL] request. The  School District had responded to the Association's FOIL request, in part, by including copies of several emails that had been "heavily redacted".

Supreme Court, after its in camera review of the redacted emails, directed the School District to provide the Association with unredacted documents. Supreme Court also awarded the Association its attorneys' fees and other costs associated with its Article 78 action. School District appealed the Supreme Court's rulings.

The Appellate Division affirmed the Supreme Court's decisions, explaining:

1. "FOIL requires that public agencies 'make available for public inspection and copying all records' except where they fall within one of the statute's enumerated exemptions." Courts "typically construe exemptions narrowly, and an agency has the burden of demonstrating that an exemption applies 'by articulating a particularized and specific justification for denying access'"; and

2. Public Officers Law §87(2)(g)(i) provides that an agency may deny access to records or portions thereof that "are inter-agency or intra-agency materials which are not," among other things, "statistical or factual tabulations or data."**

The Appellate Division, after its in camera inspection of the email communications at issue, concluded that the Supreme Court had properly determined that the redacted information constitutes factual data that is not exempt from disclosure and that the School District did not meet its burden to show that the redacted portions of the emails at issue were, in fact, exempt from disclosure.

Further, opined the Appellate Division, "Supreme Court providently exercised its discretion in awarding the [Association] attorneys' fees and other costs," noting that the Legislature had provided for the assessment of an attorney's fee and other litigation costs in FOIL proceedings "[in] order to create a clear deterrent to unreasonable delays and denials of access and thereby encourage every unit of government to make a good faith effort to comply with the requirements of FOIL."

Sustaining the Supreme Courts award of attorney's fee and other litigation costs, the Appellate Division observed that "it is undisputed that the [School District], in effect, denied the [Association] access to nonexempt documents, as no [such] documents were provided [to the Association] by the [School District's] self-imposed response date."

* Public Officers Law Article 6.

** The Appellate Division described factual data "as objective information, rather than 'opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making.'"

Click HERE to access the Appellate Division's decision posted on the Internet.

School district charged with negligent supervision, hiring, and retention of an employee and with breaching its duty in loco parentis

In this action to recover damages for negligent supervision, hiring, and retention, the Plaintiff, a former student of the defendant school district [School District] appealed Supreme Court's decision dismissing his complaint insofar as it alleged that an employee of the School District physically and sexually assaulted him while he was attending a party at the employee's home.

The Appellate Division affirmed the lower court's ruling, explaining that in determining a motion to dismiss such a CPLR 3211(a)(7) motion:

1. The pleadings are afforded a liberal construction;

2. The facts as alleged in the complaint are accepted as true; and

3. The plaintiff is accorded the benefit of every possible favorable inference.

However, citing Simkin v Blank, 19 NY3d 46, the Appellate Division explained that "allegations consisting of bare legal conclusions ... are not entitled to any such consideration." 

Here, said the court, Plaintiff has alleged a cause of action against the School District to recover damages for breach of a duty in loco parentis, and this is not a cognizable cause of action under New York law.

To the extent that the Plaintiff alleged a negligent supervision cause of action against the School District based on allegations that it failed to adequately supervise Plaintiff and, or,  its employee, the Appellate Division observed that "such cause of action was legally insufficient" because Plaintiff's allegations in the complaint, if accepted as true, demonstrated that the subject incident took place when the district had no custody or control of the Plaintiff and no duty to monitor or supervise its employee's conduct.

The Appellate Division's decision also observed that Plaintiff's complaint does not include factual allegations regarding any improper interactions between him and the School District's employee "that took place on school grounds during school hours prior to the subject incident."

Addressing Plaintiff's allegation with respect to negligent hiring and, or, retention causes of action against School District, the Appellate Division opined that Supreme Court "properly directed dismissal of such causes of action, since the [Plaintiff] failed to sufficiently plead that the [School District] knew or should have known of [its employee's] propensity for the type of conduct at issue." In addition, the court noted that although such causes of action need not be pleaded with specificity, here the complaint contained "little more than bare legal conclusions" as to the employee's propensity for improper conduct that were entirely unsupported by the alleged facts.

Finally, the Appellate Division said that even assuming that the complaint sufficiently pleaded notice of the School District's employee's "propensity for the type of conduct at issue, the [Plaintiff's] own allegations in the complaint, if accepted as true, demonstrated that there was no nexus between [the employee's] employment with the district and the subject incident, which were separated by time, place, and the intervening independent acts of [the employee]".

The bottom line: The Appellate Division held that the Supreme Court properly granted the School District's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it for failure to state a cause of action.

Click HERE to access the Appellate Divisions decision posted on the Internet.

Arbitrating an issue that was not an alleged violation of the relevant collective bargaining agreement

Are tenured public school teachers [Petitioners] bound by the results of an arbitration initiated by their union, the United Federation of Teachers [UFT], pursuant to Civil Service Law §209 to resolve an impasse over the implementation of the COVID-19 vaccine mandate? The relevant abitration "Impact Award", which Petitioners, employees of the New York City Department of Education [DOE], challenged in this hybrid Article 75/Article 78 proceeding, established a procedure for handling requests for religious and medical exemptions from a COVID-19 vaccine mandate.*

UFT had sought to negotiate the mandate's implementation with the DOE pursuant to their "mutual obligation" to "confer in good faith with respect to wages, hours, and other terms and conditions of employment," since the mandate was not part of the collective bargaining agreement [CBA] then in force. Ultimately UFT submitted a declaration of impasse to the State Public Employee Relations Board [PERB] due to several unresolved issues, including placement of unvaccinated employees on leave without pay.

The Appellate Division held that:

1. The Article 75 claims were properly dismissed by Supreme Court as Petitioners (a) lacked standing to challenge the Impact Award and (b) failed to join UFT as a necessary party;

2. The Article 75 claims failed on the merits; and

3. The Article 78 claims failed as Petitioners were unable to show that DOE made an error of law or acted irrationally.

The Appellate Division held that Supreme Court, in each proceeding, properly found the requirement that every DOE employee be vaccinated against COVID-19 - imposed by the vaccine mandate underlying these proceedings, the validity of which petitioners do not challenge here - is a "qualification of employment unrelated to job performance, misconduct, or competency" [citations omitted].

Although PERB appointed a mediator, UFT and DOE continued to disagree on many issues. The parties agreed to arbitrate those issues before their former mediator. The arbitrator issued the Impact Award, noting that the mandate "did not expressly provide for exceptions or modifications for those with any medical counterindications to vaccination or sincerely-held religious objections to inoculation."

Under the Impact Award, an employee granted an exemption or accommodation would be permitted to remain on the payroll, but would not be allowed "to enter a school building while unvaccinated, as long as the vaccine mandate is in effect," and "may be assigned to work outside of a school building ... to perform academic or administrative functions ...." Employees placed on leave without pay continued to be eligible for health insurance, but were prohibited from engaging in gainful employment during the leave period. If they became vaccinated during the leave period and provided proof by November 30, 2021, they would have a right of return to the same school within one week of submitting proof. 

Petitioners are similarly situated teachers employed by DOE. All received notification by email that they were being placed on Leave Without Pay (LWOP) status because they were not in compliance with DOE's COVID-19 Vaccine Mandate.

As a threshold matter, the Appellate Division rejected the dissent's assertion that only the legislature has the authority to impose a vaccine mandate as a condition of employment.

As to Petitioners' claims under CPLR Article 75, that the arbitrator acted in excess of jurisdiction and in violation of public policy, the Appellate Division opined that such claims failed not only on the merits but also due to Petitioners' lack of standing. When a union represents employees during arbitration, only that union - not individual employees - may seek to vacate the resulting award.

In addition, the Appellate Division found that Petitioners also failed to join UFT as a party and because the limitations period for Article 75 proceedings had expired, any action brought now against UFT would be untimely.

Further, said the court, as the arbitrator's authority did not arise from the terms of the existing CBA or from provisions of the Education Law governing disciplinary proceedings but was instead based on the Civil Service Law, Petitioners, who were not parties to the arbitration, cannot challenge the Impact Award because they cannot show that the arbitrator "exceeded his power".

The Appellate Division concluded that placing Petitioners' on leave for failure to prove vaccination, a condition of employment, is "unrelated to job performance, misconduct or competency" and does not constitute "teacher discipline".

Noting that "All concur except for Friedman, J. who dissents in part in a memorandum," the majority of the court held "Because [Petitioners] were given the opportunity to submit proof of vaccination, request religious or medical exemptions and accommodations if immunocompromised, or opt for extended benefits and severance on more favorable terms, their due process rights were not violated" and, in addition, Petitioners "were ably represented by their union in the mediation and arbitration that arose from the vaccine mandate." 

* The mandate was originally issued on August 24, 2021 by the Commissioner of the New York City Department of Health and Mental Hygiene.

Click HERE to access this decision by the Appellate Division posted on the Internet.

See, also, Matter of Athena Clarke, Petitioner-Appellant, et al.,
https://www.nycourts.gov/reporter/3dseries/2023/2023_00945.htm 

 

Summarily terminating an individual serving a "disciplinary probation period"

In Ryan v City of New York, 2023 NY Slip Op 00966, decided on February 21, 2023, the Appellate Division's decision states that an individual in "dismissal probation" status may be terminated without a hearing for any reason, or no reason at all, absent a showing that the individual was dismissed in bad faith or for an improper or impermissible reason. At the time the charges resulting in Ryan's termination were brought, Ryan was on "dismissal probation" pursuant to a negotiated discipline settlement agreement which resolved earlier disciplinary charges brought against him.

Other decisions addressing summarily dismissing an individual serving a period of "disciplinary probation" include:

Taylor v Cass, 122 A.D.2d 885: A County employee won reinstatement with full back salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s disciplinary probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours”; and

Wright v City of New York, 192 A.D.2d 411: The Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents. In other words, under the terms of relevant disciplinary probation the individual was to be treated as a "new employee" and he could be summarily terminated for any lawful reason.

In York v McGuire, 63 NY2d 760, New York State's Court of Appeals set out the basic rule concerning the dismissal of probationary employees upon their appointment to a position in the Classified Service as follows: 

After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.  

This reflects the view that the individual should be provided with a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. Should the appointing authority elect to dismiss such a probationary employee before he or she has completed the individual's required minimum period of probation, the individual is entitled to "notice and hearing" otherwise accorded a "tenured employee." 

Another element to consider: New York State's Military Law §243(9) provides, in pertinent part, in the event a probationary employee deployed on military duty before the expiration of his or her maximum period of the individual's probationary, the time he or she is absent on such military duty is to be credited as satisfactory service during such probationary period.

Click HERE to access the Ryan decision posted on the Internet.