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Redacting the name of the accused employee from the decision following a disciplinary hearing

Redacting the name of the accused employee from the decision following a disciplinary hearing

OATH Index #1536/14

In the course of a disciplinary hearing the employee placed certain of his personal medical information in the hearing record. He then submitted a post-hearing request in which he asked OATH Administrative Law Judge Alessandra F. Zorgniotti “to remove his name from the [disciplinary] report and recommendation because it discusses his medical history.”

Judge Zorgniotti denied the employee’s request explaining that “Requests for redaction are generally denied where, as here, respondent placed private health matters in issue by way of a defense and the request was made after respondent placed medical documents in the record and testified about them at a hearing.”

The ALJ said that the employee’s medical information in the record concerned a medical condition, high blood pressure, which condition “did not carry much or any stigma,” and the employee had shared information about his medical condition with a number of his co-workers prior to the incident that resulted in disciplinary charges being filed against him.

Sometimes the request for “redaction” takes the form of a request for anonymity by substituting “Anonymous” for the name of the employee. Such a request was considered in connection with a §3020-a decision by the Commissioner of Education in Decisions of the Commissioner of Education #12993, an disciplinary appeal dealing with an alleged sexual relationship between a teacher and a student. The teacher asked that the Commissioner refer to her as Anonymous "to prevent public dissemination of her name and potentially injurious information the record."

The Commissioner said that there was no requirement in law that confidentiality be maintained in an appeal from a determination of a §3020-a hearing panel nor does the potential for publicity require that he substitute “Anonymous” for the teacher’s name. He said that "the large amount of publicity following the hearing does not require that [he] take any additional steps to prevent public dissemination of the teacher's name. Also denied was the request to prevent public dissemination of material in the record "to the extent that such information is subject to disclosure under the Freedom of Information Law."

In Anonymous v Mexico CSD, 162 Misc 2d 300, the issue concerned disclosure the name of an educator involved in a disciplinary action.In this instance disciplinary charges filed against a teacher were settled before a "formal final decision" was issued. In the settlement document the teacher admitted guilt to certain of the charges.

When the District indicated that it was about to disclose the terms of the settlement agreement in response to a Freedom of Information Law [FOIL] request, the teacher asked Supreme Court to restrain the District from releasing this information. Supreme Court ruled that the settlement agreement was not exempt from disclosure under FOIL and must be provided to those seeking a copy of the agreement.

However, there may be some aspects or statements set out in a disciplinary settlement agreement that could be suppressed or redacted without offending the Freedom of Information Law.

In LaRocca v Jericho UFSD, 220 AD2d 424, the settlement agreement contained references to charges that the accused individual denied or were not admitted, together with the names of certain teachers. The Appellate Division ruled that disclosure of those parts of the settlement agreement setting out charges that were denied or not admitted and, presumably, the names of "certain teachers" would constitute an unwarranted invasion of privacy within the meaning of FOIL.

Significantly, the Appellate Division said that "as a matter of public policy, the Board of Education cannot bargain away the public's right to access to public records." The court ruled that the settlement agreement or any part of it providing for confidentiality or purporting to deny the public access to the document "is unenforceable as against the pubic interest."

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Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.

Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.

2014 NY Slip Op 05719, Appellate Division, Fourth Department

A code enforcement officer [Officer] terminated from his position sued the Town alleging that his "termination was in retaliation for his refusal to perform" unauthorized functions and for his "act[ing] as a whistle-blower in reporting" those unauthorized directives "to the Town's outside attorney and others" in violation of Civil Service Law §75-b, the public employees' whistle blower statute.* Officer contended that he was terminated after he refused to issue a stop work order when directed to do so by the Supervisor because of his belief that he "could not legally" issue a stop work order to a developer working on a project because "the developer had all of the necessary permits."

One of the issues considered by the Appellate Division was the Town’s contention that Supreme Court incorrectly denied its motion to dismiss Officer’s retaliation claim “for failure to state a cause of action.”

The Appellate Division rejected the Town’s argument concerning the alleged retaliation, explaining that Civil Service Law §75-b “prevents a public employer from … terminating a public employee because the employee discloses to a governmental body information . . . which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action."

As to the meaning of "improper governmental action," the court said that the refers to "any action by a public employer or employee, or an agent" thereof, "which is undertaken in the performance of [his or her] official duties . . . and which is in violation of any federal, state, or local law, rule or regulation," citing § 75-b [2] [a]. In this action, said the court, the governmental bodies to which disclosure may be made included “a member of a town's legislature.”

Other requirements include that an employee, prior to disclosing the information, must have "made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and . . . provide[d] the appointing authority or designee a reasonable time to take appropriate action."

Significantly, the Appellate Division noted that Officer had adequately alleged that he reasonably believed that he had been directed to perform an unlawful act and Civil Service Law §75-b does not require an actual violation of the law for an employee to subsequently allege that he or she had been terminated because he or she acted as a “whistle blower.” In such a situation the employee need have had only "a reasonable belief of a possible violation" of the law.

Construing Officer’s complaint liberally, and accepting his factual allegations and all possible favorable inferences as true, the Appellate Division concluded that Officer had “adequately alleged that he believed that he had been ordered to commit an unlawful act and that his belief was reasonable.”

* Labor Law Article 20-c, Retaliatory Action By Employers, provides similar protections to employees in the private sector.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_05719.htm
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Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed

Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed

OATH Index #1804/14

The employee had been charged with (1) violating department rules, (2) negligently operated his employer’s vehicle and (3) displaying "vulgar decals" in the department’s truck. Finding that the evidence did not support charges (1) and (2), OATH Administrative Law Judge recommended the department dismiss those charges filed against the employee.

However, Judge Addison sustained the charge filed against the employee that alleged that he had pinned vulgar decals to the interior of the truck and recommended that he be suspended for 15 days without pay. Noting that the employee had served a 30-day pre-hearing suspension without pay, the ALJ then recommended that [1] the employee be credited with "time served" and [2] that he be reimbursed 15-days pay of the 30-days of his pre-hearing suspension without pay.

Civil Service Law §75.3 provides, in pertinent part, that “that the time during which an officer or employee is suspended without pay may be considered as part of the penalty.”

In Bollin v City of Kingston, 89 A.D.2d 658, the penalty imposed, two months suspension without pay, in addition to the 30-day suspension when the charges were preferred, and a fine of $100, was held neither harsh nor excessive. Bollin had been charged with, and found guilty of, [1] incompetence by allowing his bus to run out of gas on five separate occasions and [2] misconduct for smoking while operating a bus.

In general, Courts have viewed the penalties authorized by Civil Service Law §75 as mutually exclusive. In Bollin, in addition to the 30-day suspension without pay during the pendency of charges, which is not viewed as a "penalty," the employee was both suspended without pay and fined. It may be that this reflects two different penalties for the two different charges filed against him, incompetence and misconduct, which were consolidated for purposes of appeal.

Further, in Figueroa v NYS Thruway Authority, 251 A.D.2d 773, the court held that multiple §75 thirty-day suspensions without pay were permitted where additional disciplinary charges were subsequently filed against the employee
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A Reasonable Disciplinary Penalty Under the Circumstances - A 442+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

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An individual’s domicile and residence distinguished

An individual’s domicile and residence distinguished
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department*

A person may have only one domicile at a time but he or she may have many residences simultaneously.

From time to time, however, the term “residence” is used as a substitute for the term “domicile.” This was demonstrated in Weiss v Teachout.

Seeking to invalidate the petition designating Zephyr R. Teachout as a candidate for the office of governor, Harris Weiss alleged that Teachout did not meet the constitutional residency requirements for the office of governor.

Article IV, §2 of the State Constitution, in pertinent part, requires that an individual seeking election to the office of governor “shall have been five years next preceding the election a resident of this state” while Election Law §1-104.22 states that the term residence “shall be deemed to mean that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return."

The Appellate Division explained that as used in the Election Law, and presumably in the State Constitution, the term ‘residence' is being used to denote an individual's legal status that is more accurately described as his or her “domicile."

Crucial to the determination as to whether an individual satisfies the constitutional “residency” requirement, said the court, is that the individual manifests an intent [to reside there], coupled with physical presence without any aura of sham [see People v. O'Hara, 96 NY2d 378].**

The Appellate Division sustained Supreme Court's determination that the Weiss failed demonstrate that Teachout did not meet the constitutional residency requirements for the office of governor is warranted by the facts.

The Appellate Division held that although both the Constitution and the Election Law use the “residence,” it was five years as a “domiciliary” of New York State that was required to satisfy such “residence” requirements and the fact that Teachout had has resided in several different residences within the City of New York during the relevant time period, while maintaining close connections to her childhood domicile of Vermont, constituted “nothing more than an ambiguity in the residency calculus.”

* See, also, Jones v Blake, 2014 NY Slip Op 05919, Appellate Division, First Department, an appeal arising “out of a special proceeding in which petitioner sought to establish that respondent did not satisfy the residency requirements for the public office of Member of the Assembly.”

** In Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), [Not selected for publication in the Official Reports], Supreme Court Judge Dennis M. Kehoe held the where the record revealed that the individual elected to public office [1] rented the upstairs apartment from his wife four days before the election, for an annual rental of $1.00, for a period which extends through December 31, 2012, the date his term as Mayor expires; [2] that the furnishings of the apartment consist of one bed with a crate used as a night table, had no appliances such as a refrigerator, stove, or microwave - and no television or computer; [3] that he did not move his personal belongings to the apartment; and [4] that he regularly ate dinner with his wife and children at the residence in the Town of Sodus; and spent the majority of his nights there, he must conclude that the Allen’s attempt to establish a residence in the Village of Sodus was contrived for the purpose of making him eligible to run for the office of Mayor.” Judge Kehoe noted that he was aware of the fact that “his decision will result in an immediate vacancy in the office of the Mayor of Sodus Village, but this outcome is mandated by the Public Officers Law §30(1)(d), unless otherwise stayed by a higher court.”

The Weiss decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_05888.htm

The Village of Sodus decision is posted on the Internet at:

http://www.nycourts.gov/reporter/pdfs/2011/2011_31035.pdf

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