Termination of a public employee based on conduct that, if proven in a court of law, would have constituted a felony.

Supreme Court denied the petition to annul an arbitration award that sustained the employee's [Petitioner] termination from employment and dismissed the proceeding brought pursuant to CPLR Article 75. The Appellate Division sustained the lower court's determination.

The termination of the Petitioner was based on conduct that, if proven in court, would have constituted a felony but was not against public policy. The Appellate Division explained that although Correction Law Article 23-A provides that "no employment . . . held by an individual . . . shall be . . . acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses. here observed the court, the conviction at issue occurred during Petitioner's employment and was not within the ambit of Article 23-A of the Correction Law.

Further, said the court, New York City's Human Rights Law (NYCHRL)* provides that it an unlawful discriminatory practice to "take adverse action against any employee by reason of such ... employee having been convicted of one or more criminal offenses" as that provision only applies in situations were the adverse employment actions based on arrests or criminal accusations are "in violation of subdivision 16 of section 296 [of the Correction Law]. Nor should an individual suffer adverse consequences "merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law." Significantly, the Appellate Division noted that the Petitioner had pled guilty to the offending acts and thus they were more than accusations.

Citing Peckham v Calogero, 12 NY3d 424, the Appellate Division concluding that the denial of Petitioner's request for reinstatement to his employment was not arbitrary and capricious as under the governing regulations** the appointing authority "may consider such application but is not required to do so, and any approval thereof is discretionary."

The court then opined "It was not irrational for [the appointing authority] to conclude that in seeking reinstatement [P]etitioner merely sought to relitigate issues presented approximately six weeks before his reinstatement request, and decided three weeks beforehand by a neutral arbitrator in the grievance proceeding pursuant to a collective bargaining agreement, which resulted in his termination."

* See Administrative Code of City of NY §8-107[10][a].

** Personnel Rules and Regulations of City of NY [55 RCNY Appendix A] §6.2.6[a]-[b].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01008.htm

The Steel Bar: Pittsburgh Lawyers and the Making of America

Author Ron Schuler accurately characterizes his book, The Steel Bar: Pittsburgh Lawyers and the Making of America, as sounding like modern America. Indeed, each of the issues addressed in this work explore the historical drama of a developing United States "[f]rom the Whiskey Rebellion through the bloody Homestead Strike, to the Johnstown Flood, the creation of the world’s largest corporation, the witch hunts against anarchists in the 1910s and Communists in the 1950s, to a seminal constitutional battle over the rights of workers, a 20-year long federal antitrust prosecution, and the suspicious suicide of a district attorney accused of graft.

"The Steel Bar is the epic story of the rise and fall and rebirth of the Pittsburgh lawyer, from the earliest days of the Pittsburgh bar to the modern era, against the backdrop of American history." 

More at https://www.steelbarpittsburgh.com/book.

Among the reviews of this book posted on the Internet are the following: 

https://www.booktopia.com.au/the-steel-bar-ron-schuler/book/9781733184113.html

https://triblive.com/local/pittsburgh-allegheny/book-details-history-of-allegheny-countys-legal-community/

An employee suffering an injury on his way to work is not in service for the purposes of qualifying for accidental or performance of duty disability retirement benefits

The New York State and Local Police and Fire Retirement System [LPRFS] denied a state park police officer's [Officer] application for performance of duty disability retirement benefits. Officer had alleged that he was permanently incapacitated from the performance of his duties as a result of a slip and fall on his employer's premises. 

Officer requested and was granted a hearing. The Hearing Officer sustained the LPRFS denial, find that Officer was not in service at the time he suffered his injuries. The State Comptroller accepted the findings and conclusions of the Hearing Officer, and Officer filed a CPLR Article 78 challenging the Comptrollers decision.

The Appellate Division, noting that the claimant bears the burden of proving that he was [1] "[p]hysically or mentally incapacitated [from] performance of duty as the natural and proximate result of a disability . . . sustained in such service"; and [2] whether he actually "was in service turns on whether he . . . was performing job duties at the time of the injury," said that the Comptroller is vested with the exclusive authority to determine all applications for retirement benefits, including whether an injury was sustained while in service, and that determination will be upheld if supported by substantial evidence.

Officer's testimony at the hearing, said the court, made it apparent that he was actually on his way into work at the time he suffered his injury rather than being "on duty and at work" as he stated in his application for benefits. Further, citing a number of decisions, the Appellate Division pointed out that it had upheld findings that an employee who is injured before reporting for work and commencing his duties is not "in service" when the injuries were sustained within the meaning of the Retirement and Social Security Law.

Opining that the Comptroller's determination that Officer was not in service at the time he sustained his injury was "supported by substantial evidence," the Appellate Division said it declined to disturb it.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_09079.htm

Retired police officer seeking a special pistol carrying permit denied “retiree service letter”

Petitioner in this CPLR Article 78 action had asked his former employer [Respondent] for a “retiree service letter” that would assist Petitioner in obtaining a special pistol carrying permit. His former employer denied Petitioner’s request.

Supreme Court found that Respondent’s denial of Petitioner’s request for a retiree service letter was neither arbitrary or capricious, which ruling was unanimously  affirmed by the Appellate Division, which noted that Petitioner “had no right to issuance of" the retiree service letter "since his authority to carry firearms had been revoked … and had not been restored at the time he retired."*

Petitioner concedes that he was not authorized to carry a firearm under Respondent's policy at the time of his separation from employment, as he surrendered his firearm beforehand due to an injury and he failed to seek  reinstatement of such authorization. 

Further, opined the Appellate Division, Petitioner cannot demonstrate a violation of the Americans with Disabilities Act based on Defendant's refusal to issue the retiree service letter as Petitioner concedes that his injury rendered him unable to perform his duties as a law enforcement officer and there is no factual basis to conclude that Defendant’s decision was made in bad faith rather than as part of an across-the-board policy.

Nor, said the court, did Respondent’s denial of Petitioner’s request violate Petitioner's Second Amendment rights as such denial did not preclude him from applying for a permit under normal legal procedures.

* The Appellate Division’s decision notes that even assuming Petitioner had a private right of action under the Law Enforcement Officers Safety Act of 2004, Public Law 108-277, Petitioner cannot demonstrate that he met the qualification standards within one year of Petitioner’s retirement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01240.htm

Procedures concerning serving a second probationary period as an alternative to termination from the position

A Teaching and Research Center Nurse [Plaintiff] was permanently appointed to his position subject to the satisfactory completion of a one year probationary period. Plaintiff's initial period of probationary "was extended for six months" but he was ultimately terminated from his employment. 

Plaintiff brought a proceeding pursuant to CPLR Article 78 challenging this action by the appointing authority contending: 

[a] the six-month extension of his initial probationary term was not authorized under 4 NYCRR 4.5(b)(5)(ii) and thus he had attained tenure in his position and thus 

[b] he was entitled to certain protections pursuant to §75 of the Civil Service Law which were not provided to him.

Supreme Court denied Plaintiff's petition and dismissed the proceeding whereupon Plaintiff appealed the Supreme Court's ruling to the Appellate Division.  The Appellate Division affirmed the lower court's ruling, explaining, as relevant in this action:

1. The appointing authority was authorized to impose an initial probationary period of no more than 52 weeks, citing 4 NYCRR 4.5[b][2]).

2. 4 NYCRR 4.5[b][5][ii] provides that "[i]f the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of service" but the he appointing officer may, as a matter of discretion, offer the probationer an opportunity "to serve a second probationary term . . . in a different assignment," which second probationary term may not be "less than 12 nor more than 26 weeks."

The Appellate Division then noted that the Court of Appeals in its decision in Palmer v Merges, 37 NY2d 177, observed that the rule authorizing a second probationary term, "if properly executed, is largely beneficial to the employee" and "[i]n determining whether another probationary term is necessary as the only alternative to dismissal, the administrator should be given latitude in defining a different assignment for purposes of fresh evaluation."

In this action, said the Appellate Division, the record demonstrates that the Plaintiff's initial probationary period was extended by "a second probationary term . . . in a different assignment" and Plaintiff failed to demonstrate that he did not actually serve the second probationary term in a "different assignment" or that the appointing authority's definition of that term was contrary to law.

Thus, opined the Appellate Division, Plaintiff's termination occurred while he was "still a probationary employee" and a probation employee who has completed the minimum period of probation may terminated "without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

As  Plaintiff failed to demonstrate that he was terminated in bad faith, for a constitutionally impermissible or illegal purpose, or in violation of statutory or decisional law, the Appellate Division said that "we agree with the Supreme Court's determination denying the petition and dismissing the proceeding."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01059.htm