Section 75 statute of limitations for initiating administrative disciplinary action does not apply when the charges would otherwise constitute a crime

Section 75 statute of limitations for initiating administrative disciplinary action does not apply when the charges would otherwise constitute a crime
El Bey v New York City Dept. of Corrections, 294 A.D.2d 164

In the El Bey case, the exception to the statute of limitations for filing disciplinary action pursuant to Section 75 of the Civil Service Law where the charge would otherwise constitute a crime was applied by the Appellate Division in sustaining disciplinary action taken against Yashua Amen Shekhem El Bey.

El Bey was served with disciplinary charges pursuant to Section 75 of the Civil Service Law alleging, among other misconduct, that he falsely claimed exemption from Federal income taxation. El Bey's defense to this particular charge: it was barred by the 18-month Statute of Limitations in Civil Service Law Section 75(4) as it was filed more than 18 months after the alleged act.

The Appellate Division rejected El Bey's claim that the charge was untimely, ruling that the alleged misconduct constituted a crime under 26 USC 7205 (fraudulent withholding exemption certificate or failure to supply information) and under New York State's Penal Law Section 175.30 (offering a false instrument for filing in the second degree). Accordingly, said the court, the filing of such a charge is expressly excluded from time limitations for filing administrative disciplinary charges set out in Section 75(4) as the allegation "described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

The Appellate Division then sustained El Bey's being found guilty of charges of submitting false information on a Certificate of Exemption and Withholding in Lieu of IRS Form W-4; and violating Department rules concerning excessive absences and by his (1) leaving his residence without authorization while on sick leave; (2) failing to log in and out with the Health Management Division; (3) failing to comply with an instruction to present his firearms to the Health Maintenance Division; and (4) attending an administrative hearing in another matter without authorization while on sick leave.

El Bey also challenged the penalty imposed -- termination -- as a result of his being found guilty of these charges. The court said that it found no basis to disturb the imposition of such a penalty as "[t]he penalty of dismissal does not shock our sense of fairness," citing the Pell Doctrine [Pell v Board of Education, 34 NY2d 222].

Claiming damages for alleged unlawful discrimination

Claiming damages for alleged unlawful discrimination
DiLauria v Town of Harrison, 32 AD3d 490

A police officer brought two lawsuits against the Town of Harrison in an effort to recover damages for alleged unlawful discrimination based upon disability.

The first was an Article 78 action for “economic benefits derivable from his status as a police officer” that DiLauria claimed he had lost.

DiLauria’s second action sought damages resulting from the termination of his employment as a police officer for alleged unlawful discrimination under the New York State Human Rights Law (Executive Law Article 15). The Town argued that DiLauria’s second lawsuit was barred by the doctrine of Collateral Estoppel.

The Appellate Division said that because the issues concerning the damages recoverable under the Human Rights Law -- economic loss and emotional distress -- were not actually litigated in the prior Article 78 proceeding, DeLauria could not be collaterally estopped from litigating these claims in his second action.

The court noted that restoration of any economic benefits he lost in connection with his employment as a police officer was the only monetary relief that was available in his prior CPLR article 78 proceeding, citing Civil Service Law §77.

In contrast, in his second lawsuit, DiLauria was seeking damages for economic loss and emotional distress available under the State’s Human Rights Law he claimed he suffered because of the Town’s alleged discriminatory action.

Termination of an employee serving in an acting capacity

Termination of an employee serving in an acting capacity

Appeal of Johnston and the Board of Education of the Hempstead Union Free School District, Commissioner of Education Decision No. 15,443,

Education Law §1711(3) provides that a board of education of a union free school district may appoint a superintendent of schools and enter into a contract of employment with that individual for a period of not less than three and not more than five years.

After the school board unilaterally terminated its then Superintendent, Nathaniel Clay, in October 2004, the board appointed Johnston to the position of Superintendent and she and the board signed a five-year contract of employment.

However, the board’s action with respect to its termination of Clay was determined to constitute an unlawful breach of his contract with the district. As a result, Clay was reinstated to his former position by the board’s adopting resolutions providing for his reinstatement to his former position. The board then adopted a resolution suspending Clay from the position pending “a hearing.” It next appointed Johnston to serve as acting superintendent. Ultimately, the board approved a resolution terminating Johnston from her position of acting superintendent effective July 12, 2005.

The Commissioner ruled that the board’s action reinstating Clay to his former position nullified Johnston’s appointment as superintendent as well as the five-year contract of employment the board and she had signed. Finding that there was never any subsequent resolution by the board appointing Johnston as superintendent, nor any corresponding new employment agreement, the Commissioner ruled that Johnston served as acting superintendent without a contract until her termination and thus was not entitled to “contractual due process prior to termination.”

In addition, the Commissioner concluded that based on the record before him, Johnston failed to demonstrate that she had a clearly implied promise of continued employment.

The Commissioner noted that the board had appointed Johnston to serve as the school district’s acting superintendent by resolution. This resolution specifically indicated that she was to serve as acting superintendent “pending the rendition of a decision by the Board of Education on the charges [brought against Clay], or the expiration of the period of [Clay’s] Employment Agreement on February 28, 2005, whichever shall occur earlier.”

In view of this, the Commissioner concluded that the resolution appointing Johnston to the position as “acting superintendent” did not provide her with any assurance of continued employment once either one of conditions set out in the resolution was satisfied.

Johnston continued to serve as the district’s acting superintendent for a period of time beyond the terminal dates or events set out in the resolution appointing her to the position. Her continuing to serve as acting superintendent, in the words of the Commissioner, “does not clearly evince an expectation of continued employment that would invoke the fundamental principles of due process prior to termination.”

The application of the doctrine of governmental immunity in the context of acts of terrorism

The application of the doctrine of governmental immunity in the context of acts of terrorism

Matter of World Trade Ctr. Bombing Litigation, 2011 NY Slip Op 06501, Court of Appeals

In this appeal addressing litigation arising from the 1993 terrorist bombing incident in the parking garage of the World Trade Center complex, the Court of Appeals held that the New York-New Jersey Port Authority is entitled to the protection of "governmental immunity."

The court explained that “…….our precedent dictates that the provision of security for the benefit of a greater populace involving the allocation of police resources constitutes the performance of a governmental function [and] the governmental immunity doctrine requires [the court] to find the Port Authority insulated from tortious liability.”

The court’s rationale: “Our courts simply cannot ignore that this policy-based doctrine is intended to afford deference to the exercise of discretion by the officials of municipalities and governmental entities, especially with respect to security measures and the deployment of limited police resources. Governmental entities cannot be expected to be absolute, infallible guarantors of public safety, but in order to encourage them to engage in the affirmative conduct of diligently investigating security vulnerabilities and implementing appropriate safeguards, they must be provided with the latitude to render those critical decisions without threat of legal repercussion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06501.htm

Subpoena Duces Tecum

Subpoena Duces Tecum
Bd. of Educ. v Hankins, 294 A.D.2d 360

From time to time one reads about a case involving the serving of a subpoena duces tecum.

The purpose of a subpoena duces tecum is to compel the production of documents that are relevant and material to facts at issue in a pending judicial or administrative proceeding.

On occasion a hearing officer may be asked to issue a subpoena duces tecum in the course of a disciplinary action. Sometimes an attorney will attempt to obtain such information by serving an "attorney's subpoena" on the employer.

To obtain state documents, however, a judicial subpoena duces tecum -- i.e., a subpoena issued by a court having jurisdiction -- is required if the State entity holding the documents sought by the employee declines to provide them when requested to do so.

Alfred Hankins, a New York City schoolteacher, was served with disciplinary charges pursuant to Section 3020-a of the Education Law. In the course of the disciplinary hearing, Hankins served a subpoena duces tecum on the New York City Board of Education requiring it to produce the names and addresses of certain students. The Board asked Supreme Court to quash the subpoena duces tecum served upon it by Hankins, The court granted the motion to quash.

The Appellate Division affirmed the Supreme Court's decision quashing Hankins' subpoena. The problem here, said the Appellate Division, is that Hankin attempted to use the subpoena duces tecum improperly. Such a subpoena, said the court, "may not be used for purposes of discovery or to ascertain the existence of evidence."

In this instance, said the court, Hankins wanted the subpoena in order "to discover the names, addresses, and telephone numbers of the students in the class on the day or days when his misconduct allegedly occurred." Accordingly, concluded the court, the subpoena was properly quashed by Supreme Court.