A candidate improperly disqualified for appointment from the eligible list does not have a right to be appointed to the title in the event he or she successfully challenges the disqualification

A candidate improperly disqualified for appointment from the eligible list does not have a right to be appointed to the title in the event he or she successfully challenges the disqualification

2013 NY Slip Op 07250, Appellate Division, First Department

 
An individual seeking an appointment as a New York City Correction Officer [Candidate] filed an administrative appeal challenging the removal of his name from the eligible list. He successfully argued that he had been improperly disqualified for the appointment and his name was again placed on the eligible list for appointment.

However, Candidate’s claim that his winning the administrative appeal “entitled him to an appointment as a correction officer” was rejected by Supreme Court.

The Appellate Division agreed.

Restoring the name of a candidate to an eligible list, even one improperly earlier removed from the list, does not obviate the application of the so-called Rule of Three, Civil Service Law §61(1). The Rule of Three authorizes the appointing authority to select of any one of three persons with the highest rankings on an eligible list willing to accept the appointment or promotion.

In the event there are more that three eligibles certified for appointment because of “tied-scores,” the appointing authority may select any one of the eligibles certified to it.

For example, in the event one candidate had a score of 95, a second candidate had a score of 90 and 20 candidates had a score of 85, the names of all 22 eligibles would be certified for appointment and the appointing authority could select any one of the 22 individuals so certified for the appointment.

In contrast, had there been 20 eligibles with a score of 95, one eligible with a score of 90 and one eligible with a score of 85, the appointing authority could select any on of the 20 candidates certified have a score of 95 but could not “reach” either the candidate with a score of 90 or with a score of 85 unless there were 18 or 19 "declinations" of the offer of appointment, as the case may be, among those eligibles attaining a score of 95..

In some instances, a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14] may require the appointing authority to observe the “Rule of the List” or “The Rule of One,”* and appoint the person whose name is listed first on the certification.

As the Court of Appeals held in Cassidy v Municipal Civil Service Commission of City of New Rochelle, 37 N.Y.2d 526, Civil Service Law §61(1) grants the appointing authority broad discretion in the selection of candidates, including that of appointing a lower-scoring candidate over a higher-scoring one.

However, should the appointing authority be faced with a mandatory eligible list, it must either select one of those certified to it as standing highest on the eligible list within the meaning of the Rule of Three or elect to keep the position vacant.

Another issue considered by the Appellate Division in Candidate’s appeal focused on the refusal of DOC to have the circumstances underlying Candidate’s not being appointed to the position expunged from the record before DOC as well as expunging that portion of  DOC’s  record that indicated that that it did not to appoint him notwithstanding his name being restored to the eligible list and considering him, along with other eligibles, for appointment on three occasions.

The Appellate Division ruled that DOC’s rejection of Candidate’s request to expunge the material to which he objected from his record was neither arbitrary nor capricious and dismissed his appeal.

* Preferred and special military lists are subject to the “Rule of One” by operation of law. In this instance the appointing authority must either appoint the persons whose name is certified as "first" on the preferred or special military list or elect to keep the position vacant.

The DOC decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07250.htm

Employee's request for a laptop computer to use at home after surgery ruled not an accommodation request within the meaning of the ADA

Employee's request for a laptop computer to use at home after surgery ruled not an accommodation request within the meaning of the ADA

Source: Employment Law Daily - a Wolters Kluwer publication

Decision summarized by Kathleen Kapusta, J.D.

"An employee’s request for a laptop so he could work from home while recovering from surgery was a “far cry from a ‘sufficiently direct and specific’ request for an accommodation” that would put his employer on notice that he wanted assistance for his disability, the Tenth Circuit ruled in an unpublished decision.

"Accordingly, the appeals court affirmed summary judgment in favor of the employer on his ADA failure to accommodate claim.(Dinse v Carlisle Foodservice Products, Inc, November 6, 2013, Holmes, J)."

The full text of Ms. Kapusta’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/request-for-laptop-after-surgery-not-ada-accommodation-request/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 9, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 9, 2013

Click on text highlighted in color  to access the full report

Comptroller DiNapoli noted that onMonday, November 11, we will celebrate Veterans Day across the country, remembering and honoring the individuals of all ages and backgrounds who have served in the United States armed forces since our nation was born. November 11th marks the end of World War I, then known as the Great War, in 1918, a conflict intended to make the world safe for democracy in which some 4 million Americans served, 200,000 were wounded and 100,000 gave their lives. After World War II, Armistice Day was renamed Veterans Day and reconceived as a day to celebrate the dedication, patriotism and fighting spirit of all U.S. military veterans.

At local parades and other gatherings, and in our homes, Veterans Day is an opportunity for us to come together to thank the men and women who have served for their sacrifice and bravery, and to reflect upon the principles they upheld in defending the United States of America.

Comptroller DiNapoli & A.G. Schneiderman Announce Arrests of Former Monroe County Public Officials and Business Executives in Elaborate Bid–Rigging Scheme

On November 6, 2013 Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the indictment of four individuals for an elaborate scheme to rig the bidding process for several multimillion–dollar contracts. Nelson Rivera and Robert Wiesner, both former Monroe County public officials, along with John Maggio and Daniel Lynch, two local business executives, have been charged with a total of 43 felony counts, including Money Laundering, Conspiracy, Falsifying Business Records, Offering a False Instrument for Filing, and Combination in Restraint of Trade and Competition.

DiNapoli: Immigrants Continue to Play Key Role in New York City Economy

Immigrants in New York City accounted for $210 billion in economic activity in 2011, or about 31 percent of New York City’s gross city product, according to a reportreleased Thursday by New York State Comptroller Thomas P. DiNapoli. While immigrants were hit hard by the recession, their wages rebounded strongly and exceeded pre–recession levels two years later.

DiNapoli: Former Clerk Admits to Stealing Village Funds

The former clerk–treasurer in the Steuben County village of Riverside was arrested Friday and charged with stealing more than $40,000 in village funds, State Comptroller Thomas P. DiNapoli announced.

DiNapoli: $4 Million Availabile for Veterans to Expand Their Businesses

With Veterans Day coming, New York State Comptroller Thomas P. DiNapoli Wednesday spotlighted the availability of $4 million in competitive fixed–rate small business loans for military veterans through the New York Business Development Corp.

DiNapoli Announces $500 Million Investment in Opportunistic Portfolio Asset Class

New York State Comptroller Thomas P. DiNapoli announced on November  8, 2013 that the $160.7 billion New York State Common Retirement Fund has made the first investment in its opportunistic asset class with a $500 million separate account commitment to Blackstone Tactical Opportunities Fund.

DiNapoli Releases Quick Start State Budget Analysis for 2014–15

State Comptroller Thomas P. DiNapoli projects the state’s tax revenues will grow by 2.5 percent to $90.1 billion in state fiscal year 2014–15, according to the Comptroller's annual Quick Start reportreleased Tuesday in accordance with the Budget Reform Act of 2007.

DiNapoli’s Office to Audit SUNY Upstate Medical University’s Contracts with MedBest

New York State Comptroller Thomas P. DiNapoli announced Friday that his office has scheduled an audit of the State University of New York Upstate Medical University’s contracts with MedBest Medical Management Inc.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of::

the Caton Volunteer Fire Company;

the Town of Deerpark;

the Town of East Hampton; and

the Ethelbert B. Crawford Public Library.
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What's in a name? that which we call a rose

What's in a name? that which we call a rose…*

Source: Professor Michael Froomkin, Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law, University of Miami School of Law

Professor Michael Froomkin, Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law, University of Miami School of Law, referring to a response to a motion submitted to the court by an assistant attorney general for the State of Tennessee, states “I’ve seen half-a-dozen links to this unique and amazing pleading but the world will be a better place with one more.”

Here is yet another link to the pleading. 

Professor Froomkin summaries the situation as follows:

“The setup is that the prosecutor wanted the Judge to order the defense ‘not to refer to the Assistant District Attorney General as “the Government” during trial.'" Seems they thought being called “the government” was prejudicial or derogatory or hurt their feelings or something. Defense hits it out of the park. The really good stuff starts at the bottom of page two.” 

* William Shakespeare, Romeo and Juliet

The defendant’s attorney’s Response To Government's Motion In Limine II is posted on the Internet at:

http://www.scribd.com/doc/180035586/Response-to-Government-Moving-to-Ban-the-Word-Government
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State sued for alleged defamation after publishing information depicting the plaintiff as a “sexual offender/predator”

State sued for defamation after publication of information depicting the plaintiff as a “sexual offender/predator”

2013 NY Slip Op 51814(U), Court of Claims, Judge Judith A. Hard [Not selected for publication in the Official Reports.]

In this action filed in the Court of Claims, the plaintiff [Anonymous] sought damages for alleged defamation arising out of “the State’s implementation, organization, publication, portrayal and dissemination of photographs and materials” which depicted Anonymous to third persons as a sexual offender/predator even though Anonymous was never charged with a sexual offense or convicted as a sexual offender/predator.

In her decision Judge Hard found that Anonymous proved liability by a preponderance of the credible evidence and explained the relevant law with respect to the issue before her, i.e.,  Did the publication of those statements constituted defamation? 

Defamation, said the court, "is defined as the making of a false statement which tends to ‘expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.' [while] [d]efamation is the injury to one's reputation, either by written expression (libel) or oral expression (slander)."

In the words of Judge Hard “The elements of defamation are: (1) a false statement; (2) the publication of said statement without privilege or authorization to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the statement causes special harm or constitutes defamation per se. Publication of a photograph constitutes dissemination of information.”

In this case, the Court concluded that a State law enforcement agency's employee’s speech to the press, a press release, a media advisory and “the display of the [Anonymous’] mug shot on the wall of shame,” all of which wrongly imply that Anonymous was a sexual predator, constitute false statements. In addition, the court concluded that “the publication of said statements was not authorized.”

The issue for the court to determine: “Whether the statements were privileged, whether the fault amounts at least to negligence on the part of defendant, and whether the statements caused special harm or constitute defamation per se.”

As to “privilege,” a public official being sued for alleged slander or liable may claim an “absolute privilege” or a “qualified privilege.”

Absolute privilege protects "communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings" but only extends to comments "made in the context of official communications by a principal executive of State or local government [or] those entrusted by law with considerable administrative or executive policy making responsibilities.” 

Further, Judge Hard said that “Absolute privilege attaches to actions performed by delegation on behalf of a department head of an agency, but not to those actions undertaken by an employee on their own behalf in the discharge of their own official duties.”

As to “qualified privilege,” Judge Hard said that “Press statements made by governmental representatives concerning governmental affairs are covered by such a qualified privilege. To establish such a [qualified] privilege, defendant needs to submit proof establishing that it was objectively reasonable for the defendant to believe that its conduct was appropriate under the circumstances. A [qualified] privilege will attach to statements in which the communicating party possesses a legal duty to communicate information about another, if the communicator has a good-faith belief that the information is true.”

In this action, the State did not claim an absolute privilege.

As to any “qualified privilege,” Judge Hard indicated that although a qualified privilege may apply to press statements made by governmental representatives concerning governmental affairs, the State defendant cannot avail itself of the qualified privilege defense here  because the State defendant did not submit any proof that its behavior was even remotely reasonable under the circumstances or that it had a good-faith belief that Anonymous was an online sexual predator. To the contrary, Judge Hard said that it was clear that State, through the actions of it employees, was aware that Anonymous was charged with a crime - criminal possession of a controlled substance. However, noted the court, Anonymous had not been charged with any of the internet crimes that was the subject of the press conference or press release.

Judge Hard found that “no privilege attaches to any of the alleged defamatory statements,” and then commented “… even if a qualified privilege did exist, it would be overcome by malice as [the State] recklessly disregarded the truth (i.e. that [Anonymous] was charged with criminal possession of a controlled substance) when affixing [Anonymous’] photo to the wall of shame designed to highlight online predators.”

The Court’s conclusion:

1. The State’s “fault rises at least to negligence, and further that the defamatory statements constitute defamation per sebecause they would naturally import a criminal or disgraceful charge to the mind of an intelligent person.”

2. Anonymous has proved [the] case by a preponderance of the credible evidence.

Holding that the State “is 100% liable for the defamation,” Judge Hard said that a trial on damages “shall be scheduled as soon as practicable.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51814.htm
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