Class actions challenging administrative decisions
Holcomb v Westchester County, 255 AD2d 383
“Class action” relief is rare in the public sector because courts have traditionally viewed expanding the “plaintiff class” to all members of a certain group unnecessary due to the legal principle called stare decisis (to abide by past decisions).
Stare decisis is the judicial doctrine that once a court has laid down a principle of law applicable to a certain set of facts, that principle will be applied in future cases involving the same facts. For example, if a public employee wins the right to overtime as a result of a court’s interpretation the Civil Service Law, all similar situated public employees would have an identical right to overtime under stare decisis.*
However, there can be exceptions to this general rule about the inappropriateness of class actions by public employees. The Appellate Division’s consolidated decision in Holcomb and Hetherington cases illustrate such an exception.
Michael Holcomb and Helen E. Hetherington sued Westchester County, contending that their positions were improperly abolished by the county. They argued that because the County Board of Legislators had not amended the county’s budget to reflect the abolishment of their positions, their positions could not be abolished by “administrative action” taken by the County Executive.**
Holcomb and Hetherington also asked for “class certification” in order to include some 300 other Westchester County employees whom they claimed had also been unlawfully terminated when their positions were abolished by “administrative action.” A state Supreme Court justice granted their motion for class certification, and the county appealed.
The county argued that class certification was unnecessary under stare decisis; the final determination in a court proceeding involving a governmental operation would be controlling in future litigation involving the same issue.
The Appellate Division disagreed with county and upheld the Supreme Court’s determination. The Appellate panel said the Supreme Court did not abuse its discretion because consolidating claims into a class action was a less cumbersome way for the courts to handle these claims as the 300 potential litigants were only seeking “relative small sums of damages” and were clearly part of a “large, readily definable class.”
Further, court observed that the central issue -- whether the county legislature’s failure to amend the budget meant that positions were improperly abolished -- was appropriate for class-based consideration.
* Typically the doctrine of stare decisis is not applied in arbitrations. For example, City School District of Tonawanda v Tonawanda Education Association, 63 NY2d 846, involved a situation in which the same facts considered by two different arbitrators but involving two different employees produced different results. The school district had made layoff decisions that adversely impacted on two employees. Both individuals grieved. The grievances were considered by two different arbitrators. The first arbitration decision handed down ruled in favor of the employer while in the second case, heard by a different arbitrator and handed down after the first arbitrator had made a ruling, the employee prevailed. The school district claimed that the first arbitrator's decision should be adopted by the second arbitrator since the same facts were involved and thus the second arbitrator was bound by the first arbitrator's findings. The Court of Appeals rejected Tonawanda's theory, holding that both arbitration decisions were to stand.
N.B. Would Tonawanda have been disposed to argue that the second arbitrator was bound by the first arbitrator's award had it gone the other way? It is prudent to consider the future impact of an instant position under alternate circumstances in such situations.
** Holcomb and Hetherington appear to be arguing that the Doctrine of Legislative Equivalency, i.e., “a position created by a legislative act can only be abolished by a correlative legislative act,” controls in this action [see Matter of Torre v County of Nassau, 86 NY2d 421].
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED IN COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Nov 29, 2010
Discontinuing workers’ compensation benefits
Discontinuing workers’ compensation benefits
Waters v City of New York, 256 AD2d 680
Sometimes an individual who is receiving workers’ compensation benefits will seek damages from a third party alleged to have caused his or her injury while on the job.
However, an “unauthorized settlement” could jeopardize an employer’s right to recoup benefit payments for which it is, or may become, liable. Therefore, the employer or its insurer must consent to any third party settlement. The failure of the employee to obtain this consent generally results in his or her workers’ compensation benefits being discontinued. However, there may be exceptions to this general rule, as the Waters case demonstrates.
Mary Waters was injured in an automobile accident in the course of her employment. She applied for, and was granted, workers’ compensation benefits based on a finding that she had suffered “a 10% schedule loss of the use of her left leg.”
Waters subsequently “commenced a third party action” against the owner/driver of the automobile and obtained a $5,000 settlement. However, because Waters had not obtained the city’s consent [New York City self-insures itself for workers’ compensation] the Workers’ Compensation Board affirmed the discontinuation of her “scheduled loss award.”
The Appellate Division was troubled by this result, however, commenting that in deciding a nearly identical case, the board had applied an exception to this rule.
In UHS Home Attendants, WCB 08916873, the board held that a claimant who was granted a scheduled award of 30% permanent loss of the use of her left leg “was not precluded from continuing to receive benefits even though she failed to obtain the consent of [UHS Home Attendants’] compensation insurance carrier to her settlement of her third-party action in which she had received $6,010.”
The court ruled that “given the factual similarities in the current case” to those present in the UHS Home case, it was incumbent on the board to either (1) follow the precedent established by its decision in UHS Home Attendants or “provide an explanation for its failure to do so.” Accordingly, the Appellate Division remanded [returned] the case to the board for its further consideration.
NYPPL
Waters v City of New York, 256 AD2d 680
Sometimes an individual who is receiving workers’ compensation benefits will seek damages from a third party alleged to have caused his or her injury while on the job.
However, an “unauthorized settlement” could jeopardize an employer’s right to recoup benefit payments for which it is, or may become, liable. Therefore, the employer or its insurer must consent to any third party settlement. The failure of the employee to obtain this consent generally results in his or her workers’ compensation benefits being discontinued. However, there may be exceptions to this general rule, as the Waters case demonstrates.
Mary Waters was injured in an automobile accident in the course of her employment. She applied for, and was granted, workers’ compensation benefits based on a finding that she had suffered “a 10% schedule loss of the use of her left leg.”
Waters subsequently “commenced a third party action” against the owner/driver of the automobile and obtained a $5,000 settlement. However, because Waters had not obtained the city’s consent [New York City self-insures itself for workers’ compensation] the Workers’ Compensation Board affirmed the discontinuation of her “scheduled loss award.”
The Appellate Division was troubled by this result, however, commenting that in deciding a nearly identical case, the board had applied an exception to this rule.
In UHS Home Attendants, WCB 08916873, the board held that a claimant who was granted a scheduled award of 30% permanent loss of the use of her left leg “was not precluded from continuing to receive benefits even though she failed to obtain the consent of [UHS Home Attendants’] compensation insurance carrier to her settlement of her third-party action in which she had received $6,010.”
The court ruled that “given the factual similarities in the current case” to those present in the UHS Home case, it was incumbent on the board to either (1) follow the precedent established by its decision in UHS Home Attendants or “provide an explanation for its failure to do so.” Accordingly, the Appellate Division remanded [returned] the case to the board for its further consideration.
NYPPL
Two-year suspension without pay imposed on teacher found guilty of “immoral conduct”
Two-year suspension without pay imposed on teacher found guilty of “immoral conduct”
Decisions of the Commissioner of Education 14025
New York City School teacher Norman P. Kaminowitz was found guilty of charges that he had sexually abused students, having “engaged in a continuing pattern of making inappropriate remarks, and otherwise engaged in immoral conduct.”
Kaminowitz, among other things, was alleged to have sat next to a student and rubbed her leg with his “in a suggestive manner” and touched a student with his hand “at or near her genital area.”
Concluding that Kaminowitz’s conduct constituted “neglect of duty, incapacity to teach and immoral conduct,” the hearing panel unanimously recommended that he be suspended for two years without pay. The City Board of Education appealed, asking the Commissioner to substitute his judgment for that to the panel with respect to the penalty imposed and authorize it to dismiss Kaminowitz.
Kaminowitz also appealed, asking the Commissioner to overturn the panel’s determination on the grounds that the evidence at the hearing did not support such a finding. In the alternative, Kaminowitz asked the Commissioner to reduce the penalty imposed on the grounds that it was “disproportionate to the offense.”
The Commissioner said that Kaminowitz’s conduct “is disgraceful and cannot be condoned.” He declined, however, to change the penalty imposed by the panel “based on the record as a whole.”
Among the factors cited by the Commissioner in support of his determinations were the following:
(a) [T]he only “blemish” in Kaminowitz’s 25-year teaching career prior to these incidents “appears to be the warning given to him by his building principal ten years before” and no charges were filed at that time; and
(b) [T]here were no indications of any other warnings by his current supervisors, or any history of complaints in the record.
The Commissioner said that a two-year suspension without pay was proportionate to the offense and “sufficient to impress upon [Kaminowitz] that the behavior for which he was found guilty is completely unacceptable and must not be repeated.
NYPPL
Decisions of the Commissioner of Education 14025
New York City School teacher Norman P. Kaminowitz was found guilty of charges that he had sexually abused students, having “engaged in a continuing pattern of making inappropriate remarks, and otherwise engaged in immoral conduct.”
Kaminowitz, among other things, was alleged to have sat next to a student and rubbed her leg with his “in a suggestive manner” and touched a student with his hand “at or near her genital area.”
Concluding that Kaminowitz’s conduct constituted “neglect of duty, incapacity to teach and immoral conduct,” the hearing panel unanimously recommended that he be suspended for two years without pay. The City Board of Education appealed, asking the Commissioner to substitute his judgment for that to the panel with respect to the penalty imposed and authorize it to dismiss Kaminowitz.
Kaminowitz also appealed, asking the Commissioner to overturn the panel’s determination on the grounds that the evidence at the hearing did not support such a finding. In the alternative, Kaminowitz asked the Commissioner to reduce the penalty imposed on the grounds that it was “disproportionate to the offense.”
The Commissioner said that Kaminowitz’s conduct “is disgraceful and cannot be condoned.” He declined, however, to change the penalty imposed by the panel “based on the record as a whole.”
Among the factors cited by the Commissioner in support of his determinations were the following:
(a) [T]he only “blemish” in Kaminowitz’s 25-year teaching career prior to these incidents “appears to be the warning given to him by his building principal ten years before” and no charges were filed at that time; and
(b) [T]here were no indications of any other warnings by his current supervisors, or any history of complaints in the record.
The Commissioner said that a two-year suspension without pay was proportionate to the offense and “sufficient to impress upon [Kaminowitz] that the behavior for which he was found guilty is completely unacceptable and must not be repeated.
NYPPL
Nov 26, 2010
Social Media - its use by employers in pre-employment, employment and post-employment situations
Social Media - its use by employers in pre-employment, employment and post-employment situations
Source: Article by Eileen Morgan Johnson, Esq. of Whiteford, Taylor Preston [emjohnson@wtplaw.com ]. Copyright 2010 Eileen Morgan Johnson, All rights reserved.
Part I - Social Media and Pre-employment Situations
Part II - Social Media and the Workplace
.
Part I
The use of social media in pre-employment situations
Pre-employment screening
Employers are taking advantage of the free information on social media websites and communication tools to screen applicants or to perform pre-offer due diligence on successful applicants. It's not just people in their 20's and 30's who have online profiles and the use of social media by human resource professionals is not a passing fad.
There are a variety of resources that can be consulted such as LinkedIn®, MySpace™ and Facebook. Users of these three sites create an individual profile that can include information about their work history, extracurricular activities, and contacts. Other sites such as Twitter™ and YouTube can also yield information on applicants that might be valuable in making a decision to extend or withhold an offer of employment. For those employers who are unsure about using social media sites, a simple search using Google™ or some other search engine can also yield potentially interesting information.
What are employers looking for? Social media profiles can provide a lot of valuable information. While an employer should not rely solely on these sites to verify information on employment applications, they can be used to discredit applicants or to provide another view of the person behind the resume or online application. Online profiles can provide information on the person's:
Professional credentials
Career objectivesMaturity and judgment
Abuse of drugs or alcohol
Current employment status
Red flags
A June 2009 CareerBuilder survey of 2,600 hiring managers found that 45% of them use social media in the hiring process. That was double the number of hiring managers that reported such use in 2008. What's more, 11% planned to start using social media for prescreening. Eighteen percent or almost one in five hiring managers surveyed reported finding information online that encouraged them to hire candidates:
Profile - good feel for personality and "fit"- 50%
Profile supported professional qualifications - 39%
Candidate was creative - 38%
Solid communication skills - 35%
Candidate well rounded - 33%
Good references posted by others - 19%
Candidate received awards - 15%
However, twice as many (35%) hiring managers reported finding information that led them to not hire a candidate, including:
Inappropriate photos or postings
- 53%Postings on drinking or drug use
- 44%Bad-mouthing previous employer, co-workers or clients
- 35%Poor communication skills
- 29%Discriminatory comments
- 26%Lied about qualifications
- 24%Shared confidential information from previous employer - 20%
Potential pitfalls of screening
Screening with social media has some drawbacks. It can provide too much information about job applicants, including some information that cannot be considered in the employment decision. Some online content can be questionable in terms of its origin or truthfulness. Moreover, some employers are concerned about invading applicants' privacy.
Too much informationCertain information that can be found in an applicant's online profile cannot be used as the basis for an employment decision. These include information on the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation (some state and local jurisdictions), gender expression or identity (some state and local jurisdictions) and genetic information. While it is best to avoid obtaining or even seeing this information, it is often prominently displayed on social networking profiles.
A potential solution is to assign one person to review the social media sites who is not part of the decision making process. That person should filter out any information regarding membership in a protected class and only pass on information that may be considered in the hiring process. The most fundamental way to protect against discrimination claims in using information gleaned from social media sites in the employment decision process is consistency. Employers should keep records of information reviewed and used in any employment decision.
Quality of information
Online information is not always reliable. The first rule is to make sure that the person whose profile you are viewing is actually your job applicant. It is not unusual for people to have similar names or even the same name. If you have confirmed the identity of the applicant, keep in mind that there is a possibility that not all of the information in the profile is correct. Profile information might have been deliberately falsified by the applicant or a friend or significant other with access to the profile login information.
Employers should also recognize that any site provides a limited picture of the individual. Remember the intended audience. On sites like LinkedIn, the intended audience is other professionals. However, on Facebook and MySpace, profiles are often developed for close friends and family. And some people enjoy creating a new persona for their online life, one that has no relationship to who they are in real life.
Invasion of privacy
Employers have little risk that viewing applicants' profiles, blogs or other online postings will give rise to invasion of privacy claims. Users of social networking sites usually have the option to set privacy settings on their personal pages. Their personal pages can be available to any user of the network, or can be restricted to only individuals authorized by the user. A critical question to ask in evaluating an invasion of privacy claim is whether there was a reasonable expectation of privacy. To avoid the potential for liability, employers should avoid attempts at circumventing the privacy settings put in place by users. Only view information that is readily accessible and intended for public viewing.
Google™ and other search engines
In a recent Monster.com report, 77% of employers surveyed reported performing a "Google" search on job applicants. Google is popular for the amount of information that can be discovered and the ease of use. In addition to the concern noted above that a Google search might return too much information, there are additional concerns about the quality of the information retrieved. The breadth of information that a Google search can produce has its own drawbacks including difficulty in identifying sources of search results.
As of now, employers are unlikely to incur liability based on Google searches of job applicants. To further protect against liability, employers should be consistent in their search practices, recognize the limits of online searches, and be sure the information they find actually relates to their applicants.
Current law on reviewing social media sites
There are no court decisions yet imposing liability for an employer's review of a social networking site in the pre-employment context. This is not a guarantee that such liability will not be imposed in the future. For now, the potential for liability is minimal in the absence of misconduct or discrimination by the employer. The potential for liability can be further reduced by:
- Being consistent in prescreening all applicants for certain positions or only those already selected for interviews
- Having someone other than the decision maker filter out protected class information if possible
- Keeping records of the basis for each employment decision
- Not circumventing privacy settings established on applicants' networking sites
If employers have any questions about whether information found through pre-employment screening should be used in the decision making process, they should consult employment counsel before using that information.
Part II - Social Media in the Workplace
The use of social media in employment and post-employment situations.
Social media is changing communications between employers and employees and among co-workers.
Employee communications
The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.
The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.
Social media usage policies
Just as employers adopted Internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand-alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.
Distractions and productivity
Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments.
Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.
Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).
Monitoring
An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"
Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.
However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.
Other Worries
Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.
Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?
The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."
Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.
Internal investigations
In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:
Email - 43%
Blog or message board - 18%
Video - 18%Facebook and
LinkedIn - 17%Twitter or SMS texts - 13%
The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:
Email - 31% terminated
Blog or message board - 17% disciplined, 9% terminated
Video - 15% disciplined, 8% terminated
Social networks - 8% terminated
Twitter/SMS texts - no reported actions
Employer responses
Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their Internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.
To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.
Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.
Employer social media policies should prohibit:Disclosure of confidential employer information
Discrimination against or harassment of co-workersUsing the employer's trademarks Infringing the intellectual property rights of othersMaking statements adverse to the employer's business interests or reputationCriticism of customers or business partnersStatements supporting competitorsObscenity
Legal limitations
Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.
Off- duty conduct
Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.
Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.
Post-employment
Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.
Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.
Social media non-compete
Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company.
What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?
To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete.
They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.
Conclusion
The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.
Eileen Morgan JohnsonCounselWhiteford, Taylor & Preston, L.L.P.3190 Fairview Park Drive, Suite 300 Falls Church, VA 22042t: 703-280-9271 f: 703-280-8947 m: 202-615-0894 emjohnson@wtplaw.com Bio vCard http://www.wtplaw.com/
.
===========================
..
N.B. A relevant item, NY Ethics Committees Tackle Social Media Mining has been posted on Nicole Black's Law Blog Sui Generis--a New York law blog . It addresses the issue of the ethics of attorneys using social media and cites the New York City Bar’s opinion (Formal Opinion 2010-2) Ms. Black can be reached at nblack@nicoleblackesq.com .
NYPPL
Source: Article by Eileen Morgan Johnson, Esq. of Whiteford, Taylor Preston [emjohnson@wtplaw.com ]. Copyright 2010 Eileen Morgan Johnson, All rights reserved.
Part I - Social Media and Pre-employment Situations
Part II - Social Media and the Workplace
.
Part I
The use of social media in pre-employment situations
Pre-employment screening
Employers are taking advantage of the free information on social media websites and communication tools to screen applicants or to perform pre-offer due diligence on successful applicants. It's not just people in their 20's and 30's who have online profiles and the use of social media by human resource professionals is not a passing fad.
There are a variety of resources that can be consulted such as LinkedIn®, MySpace™ and Facebook. Users of these three sites create an individual profile that can include information about their work history, extracurricular activities, and contacts. Other sites such as Twitter™ and YouTube can also yield information on applicants that might be valuable in making a decision to extend or withhold an offer of employment. For those employers who are unsure about using social media sites, a simple search using Google™ or some other search engine can also yield potentially interesting information.
What are employers looking for? Social media profiles can provide a lot of valuable information. While an employer should not rely solely on these sites to verify information on employment applications, they can be used to discredit applicants or to provide another view of the person behind the resume or online application. Online profiles can provide information on the person's:
Professional credentials
Career objectivesMaturity and judgment
Abuse of drugs or alcohol
Current employment status
Red flags
A June 2009 CareerBuilder survey of 2,600 hiring managers found that 45% of them use social media in the hiring process. That was double the number of hiring managers that reported such use in 2008. What's more, 11% planned to start using social media for prescreening. Eighteen percent or almost one in five hiring managers surveyed reported finding information online that encouraged them to hire candidates:
Profile - good feel for personality and "fit"- 50%
Profile supported professional qualifications - 39%
Candidate was creative - 38%
Solid communication skills - 35%
Candidate well rounded - 33%
Good references posted by others - 19%
Candidate received awards - 15%
However, twice as many (35%) hiring managers reported finding information that led them to not hire a candidate, including:
Inappropriate photos or postings
- 53%Postings on drinking or drug use
- 44%Bad-mouthing previous employer, co-workers or clients
- 35%Poor communication skills
- 29%Discriminatory comments
- 26%Lied about qualifications
- 24%Shared confidential information from previous employer - 20%
Potential pitfalls of screening
Screening with social media has some drawbacks. It can provide too much information about job applicants, including some information that cannot be considered in the employment decision. Some online content can be questionable in terms of its origin or truthfulness. Moreover, some employers are concerned about invading applicants' privacy.
Too much informationCertain information that can be found in an applicant's online profile cannot be used as the basis for an employment decision. These include information on the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation (some state and local jurisdictions), gender expression or identity (some state and local jurisdictions) and genetic information. While it is best to avoid obtaining or even seeing this information, it is often prominently displayed on social networking profiles.
A potential solution is to assign one person to review the social media sites who is not part of the decision making process. That person should filter out any information regarding membership in a protected class and only pass on information that may be considered in the hiring process. The most fundamental way to protect against discrimination claims in using information gleaned from social media sites in the employment decision process is consistency. Employers should keep records of information reviewed and used in any employment decision.
Quality of information
Online information is not always reliable. The first rule is to make sure that the person whose profile you are viewing is actually your job applicant. It is not unusual for people to have similar names or even the same name. If you have confirmed the identity of the applicant, keep in mind that there is a possibility that not all of the information in the profile is correct. Profile information might have been deliberately falsified by the applicant or a friend or significant other with access to the profile login information.
Employers should also recognize that any site provides a limited picture of the individual. Remember the intended audience. On sites like LinkedIn, the intended audience is other professionals. However, on Facebook and MySpace, profiles are often developed for close friends and family. And some people enjoy creating a new persona for their online life, one that has no relationship to who they are in real life.
Invasion of privacy
Employers have little risk that viewing applicants' profiles, blogs or other online postings will give rise to invasion of privacy claims. Users of social networking sites usually have the option to set privacy settings on their personal pages. Their personal pages can be available to any user of the network, or can be restricted to only individuals authorized by the user. A critical question to ask in evaluating an invasion of privacy claim is whether there was a reasonable expectation of privacy. To avoid the potential for liability, employers should avoid attempts at circumventing the privacy settings put in place by users. Only view information that is readily accessible and intended for public viewing.
Google™ and other search engines
In a recent Monster.com report, 77% of employers surveyed reported performing a "Google" search on job applicants. Google is popular for the amount of information that can be discovered and the ease of use. In addition to the concern noted above that a Google search might return too much information, there are additional concerns about the quality of the information retrieved. The breadth of information that a Google search can produce has its own drawbacks including difficulty in identifying sources of search results.
As of now, employers are unlikely to incur liability based on Google searches of job applicants. To further protect against liability, employers should be consistent in their search practices, recognize the limits of online searches, and be sure the information they find actually relates to their applicants.
Current law on reviewing social media sites
There are no court decisions yet imposing liability for an employer's review of a social networking site in the pre-employment context. This is not a guarantee that such liability will not be imposed in the future. For now, the potential for liability is minimal in the absence of misconduct or discrimination by the employer. The potential for liability can be further reduced by:
- Being consistent in prescreening all applicants for certain positions or only those already selected for interviews
- Having someone other than the decision maker filter out protected class information if possible
- Keeping records of the basis for each employment decision
- Not circumventing privacy settings established on applicants' networking sites
If employers have any questions about whether information found through pre-employment screening should be used in the decision making process, they should consult employment counsel before using that information.
Part II - Social Media in the Workplace
The use of social media in employment and post-employment situations.
Social media is changing communications between employers and employees and among co-workers.
Employee communications
The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.
The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.
Social media usage policies
Just as employers adopted Internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand-alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.
Distractions and productivity
Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments.
Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.
Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).
Monitoring
An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"
Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.
However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.
Other Worries
Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.
Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?
The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."
Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.
Internal investigations
In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:
Email - 43%
Blog or message board - 18%
Video - 18%Facebook and
LinkedIn - 17%Twitter or SMS texts - 13%
The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:
Email - 31% terminated
Blog or message board - 17% disciplined, 9% terminated
Video - 15% disciplined, 8% terminated
Social networks - 8% terminated
Twitter/SMS texts - no reported actions
Employer responses
Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their Internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.
To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.
Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.
Employer social media policies should prohibit:Disclosure of confidential employer information
Discrimination against or harassment of co-workersUsing the employer's trademarks Infringing the intellectual property rights of othersMaking statements adverse to the employer's business interests or reputationCriticism of customers or business partnersStatements supporting competitorsObscenity
Legal limitations
Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.
Off- duty conduct
Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.
Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.
Post-employment
Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.
Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.
Social media non-compete
Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company.
What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?
To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete.
They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.
Conclusion
The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.
Eileen Morgan JohnsonCounselWhiteford, Taylor & Preston, L.L.P.3190 Fairview Park Drive, Suite 300 Falls Church, VA 22042t: 703-280-9271 f: 703-280-8947 m: 202-615-0894 emjohnson@wtplaw.com Bio vCard http://www.wtplaw.com/
.
===========================
..
N.B. A relevant item, NY Ethics Committees Tackle Social Media Mining has been posted on Nicole Black's Law Blog Sui Generis--a New York law blog . It addresses the issue of the ethics of attorneys using social media and cites the New York City Bar’s opinion (Formal Opinion 2010-2) Ms. Black can be reached at nblack@nicoleblackesq.com .
NYPPL
Nov 24, 2010
Proposed amendment of 4 NYCRR 73.2 addresses the disqualification of individuals from participating in the New York State Health Insurance Plan
Proposed amendment of 4 NYCRR 73.2 addresses the disqualification of individuals from participating in the New York State Health Insurance Plan Source: NYS Register, November 24, 2010
The New York State Department of Civil Service has proposed amending 4 NYCRR 73.2 with respect to the disqualification of individuals from participating in the New York State Health Insurance Plan (‘‘NYSHIP’’) and receiving NYSHIP benefits
Text of proposed rule: That subdivision (e) of Section 73.2 of Part 73 of the Regulations of the Department of Civil Service (President’s Regulations) is amended to read as follows:
(e) Disqualification. The president may disqualify from participation in the health insurance plan and from receiving benefits thereunder any employee or retired employee or dependent of an employee or retired employee who has secured or attempted to secure participation in the health insurance plan or benefits under the plan for himself or another by fraud, deception or a false statement of a material fact, or who has accepted benefits for himself or another knowing he was not entitled thereto. No person shall be disqualified or denied benefits pursuant to this subdivision unless he is first given a written statement of the reasons therefor and afforded an opportunity to make an explanation and submit facts in opposition to such action. Such employee, retired employee or dependent of an employee or retired employee may be restored to eligibility for coverage under the plan only on approval of the president and subject to such conditions as may be imposed by the president, including repayment of sums expended for benefits obtained by fraud, deception or false statement of a material fact, or accepted by the employee with knowledge that he was not entitled thereto.
Public comment will be received until: 45 days after publication of the notice. Data, views or arguments concerning the proposed amendment may be submitted to Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us
The text of the proposed amendment and related information is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
NYPPL
The New York State Department of Civil Service has proposed amending 4 NYCRR 73.2 with respect to the disqualification of individuals from participating in the New York State Health Insurance Plan (‘‘NYSHIP’’) and receiving NYSHIP benefits
Text of proposed rule: That subdivision (e) of Section 73.2 of Part 73 of the Regulations of the Department of Civil Service (President’s Regulations) is amended to read as follows:
(e) Disqualification. The president may disqualify from participation in the health insurance plan and from receiving benefits thereunder any employee or retired employee or dependent of an employee or retired employee who has secured or attempted to secure participation in the health insurance plan or benefits under the plan for himself or another by fraud, deception or a false statement of a material fact, or who has accepted benefits for himself or another knowing he was not entitled thereto. No person shall be disqualified or denied benefits pursuant to this subdivision unless he is first given a written statement of the reasons therefor and afforded an opportunity to make an explanation and submit facts in opposition to such action. Such employee, retired employee or dependent of an employee or retired employee may be restored to eligibility for coverage under the plan only on approval of the president and subject to such conditions as may be imposed by the president, including repayment of sums expended for benefits obtained by fraud, deception or false statement of a material fact, or accepted by the employee with knowledge that he was not entitled thereto.
Public comment will be received until: 45 days after publication of the notice. Data, views or arguments concerning the proposed amendment may be submitted to Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us
The text of the proposed amendment and related information is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
NYPPL
Separate layoff units for NYS Department of Environmental Conservation law enforcement personnel proposed
Separate layoff units for NYS Department of Environmental Conservation law enforcement personnel proposed
Source: NYS Register, November 24, 2010
The amendment, if adopted would “designate the Agency Law Enforcement Services negotiating unit as a separate layoff unit with Dept. of Environmental Conservation.”
The text of the proposed rule and any required statements and analyses may be
obtained from: Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us
Data, views or arguments concerning the proposed amendment may be submitted to: Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us Public comment will be received until: 45 days after publication of this notice.
The full text of the proposal submitted to the Department of State is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
NYPPL
Source: NYS Register, November 24, 2010
The amendment, if adopted would “designate the Agency Law Enforcement Services negotiating unit as a separate layoff unit with Dept. of Environmental Conservation.”
The text of the proposed rule and any required statements and analyses may be
obtained from: Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us
Data, views or arguments concerning the proposed amendment may be submitted to: Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us Public comment will be received until: 45 days after publication of this notice.
The full text of the proposal submitted to the Department of State is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
NYPPL
Video evidence exonerates security officers charged with using excessive force
Video evidence exonerates security officers charged with using excessive force
Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v Charles and Ross, OATH Index Nos. 2802/10 & 2803/10
The NYC Health and Hospital Corporation filed disciplinary charges alleging that two Lincoln Medical Center hospital special officers, Morris Charles and Christopher Ross, used excessive force against a hospital visitor when they escorted him outside.
OATH Administrative Law Judge Kara J. Miller determined that the officers and the visitor began to struggle inside the vestibule between the inner and outer doorways of the facility and then on the sidewalk in front of the building.
However, Judge Miller ruled that the video evidence presented by the Corporation failed to support the charges filed against the two officers and, further, that Charles and Ross “credibly established that the visitor initiated the physical altercation by cursing loudly and trying to hit them with a cane.”
Finding that the two security officers had reasonably attempted to de-escalate the situation and when that failed, the force used was not excessive under the circumstances, Judge Miller recommended that the disciplinary charges be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2802.pdf
NYPPL
Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v Charles and Ross, OATH Index Nos. 2802/10 & 2803/10
The NYC Health and Hospital Corporation filed disciplinary charges alleging that two Lincoln Medical Center hospital special officers, Morris Charles and Christopher Ross, used excessive force against a hospital visitor when they escorted him outside.
OATH Administrative Law Judge Kara J. Miller determined that the officers and the visitor began to struggle inside the vestibule between the inner and outer doorways of the facility and then on the sidewalk in front of the building.
However, Judge Miller ruled that the video evidence presented by the Corporation failed to support the charges filed against the two officers and, further, that Charles and Ross “credibly established that the visitor initiated the physical altercation by cursing loudly and trying to hit them with a cane.”
Finding that the two security officers had reasonably attempted to de-escalate the situation and when that failed, the force used was not excessive under the circumstances, Judge Miller recommended that the disciplinary charges be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2802.pdf
NYPPL
Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee
Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee
Matter of Gibbons v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 08571, Decided on November 16, 2010, Appellate Division, Second Department
Grace Gibbons, a court reporter in the District Court, Nassau County, for 22 years, was served with disciplinary charges.
In the course of the disciplinary hearing the Office of Court Administration presented evidence that Gibbons had been “insubordinate to her supervisors and to a District Court Judge, that she failed to produce transcripts in a timely manner, and that she was excessively absent without providing sufficient notice.”
The disciplinary hearing officer, Colleen M. Fondulis, found Gibbons guilty of a number of the charges filed against her and recommended that she be dismissed from her position. The Deputy Chief Administrative Judge for Courts Outside of New York City, Jan H. Plumadore, concurred, finding Gibbons guilty of the misconduct and incompetence alleged in many of the 20 specifications. Judge Plumadore adopted the hearing officer's recommendation as to the penalty to be imposed and terminated Gibbons from her position.
Gibbons filed a petition pursuant to CPLR Article 78 appealing Judge Plumadore’s determination.
The Appellate Division said that test of the lawfullness of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.* In this instance, said the court, it found that that the administrative determination was supported by substantial evidence.
Further, the court said that "[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists," citing Matter of Berenhaus v Ward, 70 NY2d 436.
In considering the penalty imposed on Gibbons, termination, the Appellate Division noted that a penalty imposed following an administrative disciplinary hearing based on a finding that the individual is guilty of one or more of the charges must be sustained unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” the so-called “Pell Standard.”**
Considering Gibbons’ “repeated acts of insubordination, absences, and untimely completion of transcripts,” the Appellate Davison said that the penalty imposed, termination, did not shock its sense of fairness.
* Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"
** Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08571.htm
NYPPL
Matter of Gibbons v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 08571, Decided on November 16, 2010, Appellate Division, Second Department
Grace Gibbons, a court reporter in the District Court, Nassau County, for 22 years, was served with disciplinary charges.
In the course of the disciplinary hearing the Office of Court Administration presented evidence that Gibbons had been “insubordinate to her supervisors and to a District Court Judge, that she failed to produce transcripts in a timely manner, and that she was excessively absent without providing sufficient notice.”
The disciplinary hearing officer, Colleen M. Fondulis, found Gibbons guilty of a number of the charges filed against her and recommended that she be dismissed from her position. The Deputy Chief Administrative Judge for Courts Outside of New York City, Jan H. Plumadore, concurred, finding Gibbons guilty of the misconduct and incompetence alleged in many of the 20 specifications. Judge Plumadore adopted the hearing officer's recommendation as to the penalty to be imposed and terminated Gibbons from her position.
Gibbons filed a petition pursuant to CPLR Article 78 appealing Judge Plumadore’s determination.
The Appellate Division said that test of the lawfullness of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.* In this instance, said the court, it found that that the administrative determination was supported by substantial evidence.
Further, the court said that "[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists," citing Matter of Berenhaus v Ward, 70 NY2d 436.
In considering the penalty imposed on Gibbons, termination, the Appellate Division noted that a penalty imposed following an administrative disciplinary hearing based on a finding that the individual is guilty of one or more of the charges must be sustained unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” the so-called “Pell Standard.”**
Considering Gibbons’ “repeated acts of insubordination, absences, and untimely completion of transcripts,” the Appellate Davison said that the penalty imposed, termination, did not shock its sense of fairness.
* Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"
** Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08571.htm
NYPPL
Errors in processing a disciplinary action results in annulment of determination
Errors in processing a disciplinary action results in annulment of determination
Collins v Parishville-Hopkinton CSD, 256 AD2d 700
The Collins case demonstrates that even what one might assume is an “open and shut” disciplinary case can go awry.
It was undisputed that Ann Collins, a full-time bus driver employed by the Parishville-Hopkinton Central School District, brought a 12-pack of beer with her to the district’s bus garage and that she drank some of the beer while waiting to be taken to a bus drivers training workshop.
The district filed disciplinary charges against her pursuant to Section 75 of the Civil Service Law, alleging Collins that she:
1. brought and consumed beer on school district property;
2. attended a bus driver safety workshop after having consumed beer;
3. was under the influence of alcohol at the training session;
4. drove out of the district’s parking lot at a high rate of speed, spinning the vehicles tires and “fishtailing;” and
5. appeared distracted and inattentive at the training session.
Although Collins was found guilty “of the charges laid against her” and terminated, the Appellate Division annulled the determination because it found that “the determination of the hearing officer and of the Board of Education were replete with error.”
The hearing officer erred by finding the employee guilty of some offenses with which she had not been charged. This is not permissible under Section 75 unless the charges are amended by the appointing authority, here the school board. Such an error is a denial of due process; the employee must have notice of what offenses he or she is charged with and have an opportunity to prepare a defense.
In Collins’ case, the Appellate Division pointed out that the determination made in a disciplinary proceeding “must be based on the charges [and] no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” The court ruled that the hearing officer erred when he found Collins guilty of two uncharged specifications of misconduct and based his penalty recommendation on those findings.
The school board erred by failing to explain its decision to find the employee guilty of all the original charges, despite the fact that the hearing officer found the employee innocent of some of the original charges.
An appointing authority may ignore a hearing officer’s finding of innocence on a specific charge and nevertheless find the employee guilty of that charge but in such a circumstance it behooves the appointing authority to cite evidence in the record to support its determination. If the employee chooses to appeal the determination, the courts typically will view an “unsupported” determination as arbitrary and capricious.*
As to the action taken by the school board, the Appellate Division explained that “although the Board of Education was not bound by the hearing officer’s determination to dismiss four of the charges [i.e., charges 2-5] levied against [Collins] and was entitled to find [her] guilty of those charges if the evidence provided adequate factual support therefore, it was incumbent upon the Board of Education to render a decision with specific factual findings supporting its conclusions in that regard.”
In other words, while the board could find Collins guilty of charges 2-5 as reflected by its resolution, it was required to set out the evidence it relied upon to support its findings of guilt if it hoped to have its determination withstand judicial scrutiny.
The court said that under the circumstances, the board’s decision had to be annulled and the matter remanded to it so that it may make findings of fact in support of whatever decision it may deem proper “based on the evidence previously presented” to it. Clearly, the Appellate Division’s directive precludes the district from holding a new hearing on the “formal” charges it initially filed against Collins.
* According to the decision, the hearing officer found that Collins brought and consumed beer on school property; offered beer to other drivers; and left beer in the open back of her pick-up truck parked in the district’s parking lot. Concluding that this constituted poor judgment, he recommended that Collins be dismissed. The School Board passed, without further elaboration, a resolution finding Collins “guilty of the charges laid against her and each of them.” It then adopted the hearing officer’s recommendation that Collins be dismissed. It appears that the hearing officer found Collins guilty of charge 1, together with 2 other offenses not charged. The school board apparently found Collins guilty of the charges filed against her, including charge 1, but did not adopt the findings of the hearing regarding Collins offering beer to other drivers and leaving beer exposed in the back of her truck.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
NYPPL
Collins v Parishville-Hopkinton CSD, 256 AD2d 700
The Collins case demonstrates that even what one might assume is an “open and shut” disciplinary case can go awry.
It was undisputed that Ann Collins, a full-time bus driver employed by the Parishville-Hopkinton Central School District, brought a 12-pack of beer with her to the district’s bus garage and that she drank some of the beer while waiting to be taken to a bus drivers training workshop.
The district filed disciplinary charges against her pursuant to Section 75 of the Civil Service Law, alleging Collins that she:
1. brought and consumed beer on school district property;
2. attended a bus driver safety workshop after having consumed beer;
3. was under the influence of alcohol at the training session;
4. drove out of the district’s parking lot at a high rate of speed, spinning the vehicles tires and “fishtailing;” and
5. appeared distracted and inattentive at the training session.
Although Collins was found guilty “of the charges laid against her” and terminated, the Appellate Division annulled the determination because it found that “the determination of the hearing officer and of the Board of Education were replete with error.”
The hearing officer erred by finding the employee guilty of some offenses with which she had not been charged. This is not permissible under Section 75 unless the charges are amended by the appointing authority, here the school board. Such an error is a denial of due process; the employee must have notice of what offenses he or she is charged with and have an opportunity to prepare a defense.
In Collins’ case, the Appellate Division pointed out that the determination made in a disciplinary proceeding “must be based on the charges [and] no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” The court ruled that the hearing officer erred when he found Collins guilty of two uncharged specifications of misconduct and based his penalty recommendation on those findings.
The school board erred by failing to explain its decision to find the employee guilty of all the original charges, despite the fact that the hearing officer found the employee innocent of some of the original charges.
An appointing authority may ignore a hearing officer’s finding of innocence on a specific charge and nevertheless find the employee guilty of that charge but in such a circumstance it behooves the appointing authority to cite evidence in the record to support its determination. If the employee chooses to appeal the determination, the courts typically will view an “unsupported” determination as arbitrary and capricious.*
As to the action taken by the school board, the Appellate Division explained that “although the Board of Education was not bound by the hearing officer’s determination to dismiss four of the charges [i.e., charges 2-5] levied against [Collins] and was entitled to find [her] guilty of those charges if the evidence provided adequate factual support therefore, it was incumbent upon the Board of Education to render a decision with specific factual findings supporting its conclusions in that regard.”
In other words, while the board could find Collins guilty of charges 2-5 as reflected by its resolution, it was required to set out the evidence it relied upon to support its findings of guilt if it hoped to have its determination withstand judicial scrutiny.
The court said that under the circumstances, the board’s decision had to be annulled and the matter remanded to it so that it may make findings of fact in support of whatever decision it may deem proper “based on the evidence previously presented” to it. Clearly, the Appellate Division’s directive precludes the district from holding a new hearing on the “formal” charges it initially filed against Collins.
* According to the decision, the hearing officer found that Collins brought and consumed beer on school property; offered beer to other drivers; and left beer in the open back of her pick-up truck parked in the district’s parking lot. Concluding that this constituted poor judgment, he recommended that Collins be dismissed. The School Board passed, without further elaboration, a resolution finding Collins “guilty of the charges laid against her and each of them.” It then adopted the hearing officer’s recommendation that Collins be dismissed. It appears that the hearing officer found Collins guilty of charge 1, together with 2 other offenses not charged. The school board apparently found Collins guilty of the charges filed against her, including charge 1, but did not adopt the findings of the hearing regarding Collins offering beer to other drivers and leaving beer exposed in the back of her truck.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
NYPPL
Jurisdiction of the Commissioner of Education to consider Taylor Law and Open Meetings Law issues
Jurisdiction of the Commissioner of Education to consider Taylor Law and Open Meetings Law issues
Matter of Goldin and the Wappingers Falls CSD, Decisions of the Commissioner of Education, 14043
This decision by the Commissioner of Education points out he does not have jurisdiction to resolve a dispute merely because the issue involves a school district. In this Education Law Section 310 appeal filed with the Commissioner, the issues raised concerned the terms of a collective bargaining agreement and the State’s Open Meetings Law.
After noting that Goldin’s appeal had to be dismissed for a number of procedural reasons including her failure to include all necessary parties -- the Board of Education and the Congress -- the Commissioner dismissed the appeal on the grounds that he did not have the authority to resolve these issues.
Since 1988 collective bargaining agreements between the Wappingers Central School District and the Wappingers Congress of Teachers provided that the Congress’ president, in order to conduct union business, “will teach three periods per day if he/she is a secondary teacher and will act as a substitute three days per week if he/she is an elementary teacher.”
A 1995 “side letter” signed by school superintendent John G. Marmillo and Congress president Ronald L. Warman relieved Warman of all of his teaching duties in order to allow him to conduct Congress business. The Congress was to reimburse the district in accordance with an agreed upon formula based on “60 percent of the substitute pay rate.”
Contending that the “side letter is an illegal document,” Dione Goldin filed an appeal with the Commissioner pursuant to Section 310 of the Education Law naming school superintendent John G. Marmillo and Congress president Ronald L. Warman as the respondents. She asked the Commissioner of Education to annul the side letter and order the Congress to reimburse the district the “salary for the period covered under the letter” paid to its president.
This decision demonstrates that including all the “necessary parties” is critical in prosecuting a Section 310 appeal before the Commissioner. As an example, in an appeal in which parents sought to have a school bus driver dismissed because of alleged “abusive conduct” towards students after the district declined to do so, the Commissioner said that “the parents’ failure to name the driver as a respondent required that he dismiss their appeal” [Appeal of Lippman (Holland Central School District), Decision 14041]. The decision points out that “a party whose rights would be adversely affected by a determination of an appeal in favor of the petitioner is a necessary party and must be joined as such.”
The Commissioner pointed out that “to the extent that [Goldin] seeks an order directing the Wappingers Congress of Teachers to reimburse the school district, union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law Section 310.”
Goldin also complained that the Board of Education violated the Open Meetings Law. The Commissioner said that alleged violations of the Open Meetings Law must be pursued in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, rather than a Section 310 appeal.
NYPPL
Matter of Goldin and the Wappingers Falls CSD, Decisions of the Commissioner of Education, 14043
This decision by the Commissioner of Education points out he does not have jurisdiction to resolve a dispute merely because the issue involves a school district. In this Education Law Section 310 appeal filed with the Commissioner, the issues raised concerned the terms of a collective bargaining agreement and the State’s Open Meetings Law.
After noting that Goldin’s appeal had to be dismissed for a number of procedural reasons including her failure to include all necessary parties -- the Board of Education and the Congress -- the Commissioner dismissed the appeal on the grounds that he did not have the authority to resolve these issues.
Since 1988 collective bargaining agreements between the Wappingers Central School District and the Wappingers Congress of Teachers provided that the Congress’ president, in order to conduct union business, “will teach three periods per day if he/she is a secondary teacher and will act as a substitute three days per week if he/she is an elementary teacher.”
A 1995 “side letter” signed by school superintendent John G. Marmillo and Congress president Ronald L. Warman relieved Warman of all of his teaching duties in order to allow him to conduct Congress business. The Congress was to reimburse the district in accordance with an agreed upon formula based on “60 percent of the substitute pay rate.”
Contending that the “side letter is an illegal document,” Dione Goldin filed an appeal with the Commissioner pursuant to Section 310 of the Education Law naming school superintendent John G. Marmillo and Congress president Ronald L. Warman as the respondents. She asked the Commissioner of Education to annul the side letter and order the Congress to reimburse the district the “salary for the period covered under the letter” paid to its president.
This decision demonstrates that including all the “necessary parties” is critical in prosecuting a Section 310 appeal before the Commissioner. As an example, in an appeal in which parents sought to have a school bus driver dismissed because of alleged “abusive conduct” towards students after the district declined to do so, the Commissioner said that “the parents’ failure to name the driver as a respondent required that he dismiss their appeal” [Appeal of Lippman (Holland Central School District), Decision 14041]. The decision points out that “a party whose rights would be adversely affected by a determination of an appeal in favor of the petitioner is a necessary party and must be joined as such.”
The Commissioner pointed out that “to the extent that [Goldin] seeks an order directing the Wappingers Congress of Teachers to reimburse the school district, union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law Section 310.”
Goldin also complained that the Board of Education violated the Open Meetings Law. The Commissioner said that alleged violations of the Open Meetings Law must be pursued in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, rather than a Section 310 appeal.
NYPPL
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or her income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or her income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Nov 23, 2010
Facing the Legal Dangers of Social Media – a Complimentary Webinar
Facing the Legal Dangers of Social Media – a Complimentary Webinar
Source: The Virtual LegalTech Team
The Virtual LegalTech Team has announced that a one-hour webinar entitled, "Facing the Legal Dangers of Social Media," will take place in the Virtual Auditorium at Virtual LegalTech on December 14, 2010 from 10:00 – 11:00 AM EST." The webinar session is eligible for CLE credit in certain states.*
According to the Team, "This Webinar will take a close look at the most challenging social media issues arising in the legal industry today, including:
1. The good and the bad of employees and social media;
2. Monitoring online content and combating the negatives; and
3. Preserving privilege and avoiding inadvertent contact with adversaries online."
The Team also notes that those participating in the December 14 session will be able to "chat with vendors, see product demonstrations, collect information, network with colleagues and get the latest news from the ever-evolving legal industry."
Register at http://www.virtuallegaltechshow.com/.
Registration is complimentary and use Priority Code SOCIAL1 when registering.
For additional information please go to http://alm-promotions-us.msgfocus.com/c/1fH13YdyA5u8FZO5Tc or telephone 212-457-7905
* According to the Team, Complimentary CLE will only be offered for credits in NY, CA and IL by attending the Virtual LegalTech show on December 14, 2010. CLE credit is pending in FL. Not all sessions are CLE eligible. Other terms and conditions apply. All potential participants will be contacted with further details prior to the show.
NYPPL
Source: The Virtual LegalTech Team
The Virtual LegalTech Team has announced that a one-hour webinar entitled, "Facing the Legal Dangers of Social Media," will take place in the Virtual Auditorium at Virtual LegalTech on December 14, 2010 from 10:00 – 11:00 AM EST." The webinar session is eligible for CLE credit in certain states.*
According to the Team, "This Webinar will take a close look at the most challenging social media issues arising in the legal industry today, including:
1. The good and the bad of employees and social media;
2. Monitoring online content and combating the negatives; and
3. Preserving privilege and avoiding inadvertent contact with adversaries online."
The Team also notes that those participating in the December 14 session will be able to "chat with vendors, see product demonstrations, collect information, network with colleagues and get the latest news from the ever-evolving legal industry."
Register at http://www.virtuallegaltechshow.com/.
Registration is complimentary and use Priority Code SOCIAL1 when registering.
For additional information please go to http://alm-promotions-us.msgfocus.com/c/1fH13YdyA5u8FZO5Tc or telephone 212-457-7905
* According to the Team, Complimentary CLE will only be offered for credits in NY, CA and IL by attending the Virtual LegalTech show on December 14, 2010. CLE credit is pending in FL. Not all sessions are CLE eligible. Other terms and conditions apply. All potential participants will be contacted with further details prior to the show.
NYPPL
Employee fined for using employer’s equipment for personal business
Employee fined for using employer’s equipment for personal business
Conflicts of Interest Board v Raymond McNeil, OATH Index #09-307
OATH Administrative Law Judge Faye Lewis found that former New York City procurement analyst Raymond McNeil had used his City computer and his City e-mail account for a non-City purpose – engaging in his personal business -- during normal working hours.
Judge Lewis found that McNeil had violated the New York City Conflict of Interest Board’s Rules by using his City computer to send e-mails concerning his notary public services. Further, the decision notes that “[p]roviding one’s City government e-mail address and phone number as contact information for outside employment is in conflict with the proper discharge of [the employee’s] official duties.”
Although Judge Lewis recommended that a $600 fine be imposed on McNeil, the Conflicts of Interest Board decided to impose a $2,000 fine as the penalty for violated its Rules.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1790.pdf
NYPPL
Conflicts of Interest Board v Raymond McNeil, OATH Index #09-307
OATH Administrative Law Judge Faye Lewis found that former New York City procurement analyst Raymond McNeil had used his City computer and his City e-mail account for a non-City purpose – engaging in his personal business -- during normal working hours.
Judge Lewis found that McNeil had violated the New York City Conflict of Interest Board’s Rules by using his City computer to send e-mails concerning his notary public services. Further, the decision notes that “[p]roviding one’s City government e-mail address and phone number as contact information for outside employment is in conflict with the proper discharge of [the employee’s] official duties.”
Although Judge Lewis recommended that a $600 fine be imposed on McNeil, the Conflicts of Interest Board decided to impose a $2,000 fine as the penalty for violated its Rules.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1790.pdf
NYPPL
Notice requirements for filing an complaint with PERB alleging an improper practice
Notice requirements for filing an complaint with PERB alleging an improper practice
Union Endicott CSD v PERB, 250 AD2d 82, motion to appeal denied, 93 NY2d 805
In the Union Endicott decision the Appellate Division, Third Department, affirmed its position that a union’s failure to file a timely notice of claim with a school district as mandated by Section 3813(1) of the Education Law prevents it from prosecuting improper practice charges filed against the district with PERB.
The case arose in 1992 in connection with the New York State Electric and Gas Company’s rebate program designed to encourage the replacement of the components of thousands of the Union-Endicott Central School District’s fluorescent fixtures with “high efficiency energy-saving models.”
The district decided to participate in the program and, after receiving competitive bids, awarded the work to an independent electrical contractor. In 1993, the Union-Endicott Maintenance Workers Association filed an improper employer practice charge with PERB contending that the district had awarded work previously performed exclusively by Association members to an independent contractor in violation of Section 209-a(1)(d) of the Civil Service Law [the Taylor Law].
PERB agreed and directed the district to cease subcontracting out the work and to make the Association members “whole for any wages or benefits lost as a result of the contracting out of the [unit] work.”
The district asked the courts to annul PERB’s decision on the ground that the Association had not complied with the “notice of claim” requirement set out in Section 3813 of the Education Law. This omission, the district argued, required PERB to dismiss the improper practice charged filed by the Association.
The Appellate Division agreed, pointing out that it has “unequivocally held that the filing of a timely notice of claim pursuant to Education Law Section 3813(1) is a condition precedent to a collective bargaining unit’s filing of an improper practice charge against a school district.”
Accordingly, the Court decided that PERB should have granted the district’s motion to dismiss the Association’s improper employer practice charge based on the Association’s failure to file a timely notice of claim with the district.*
Courts have noted that there are some exceptions to this requirement, however. For example, in CSEA v Lakeland Central School District, the Appellate Division rejected the School District’s claim that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in Section 3813(1).
The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement” by the School District.
Similarly, in a case involving an employee’s applying for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law, State Supreme Court Justice Anthony Kane rejected a school district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district [Elmsford UFSD v Alfred G. Meyer, Supreme Court, Albany County, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807].
While exceptions to the “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813(1) rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
* PERB has dismissed improper practice charges filed by a union on the grounds that it failed to filed a notice of claim with the district as required by 3813(1) of the Education Law in other cases such as Watertown Education Association and Watertown City Schools, 28 PERB 3033.
NYPPL
Union Endicott CSD v PERB, 250 AD2d 82, motion to appeal denied, 93 NY2d 805
In the Union Endicott decision the Appellate Division, Third Department, affirmed its position that a union’s failure to file a timely notice of claim with a school district as mandated by Section 3813(1) of the Education Law prevents it from prosecuting improper practice charges filed against the district with PERB.
The case arose in 1992 in connection with the New York State Electric and Gas Company’s rebate program designed to encourage the replacement of the components of thousands of the Union-Endicott Central School District’s fluorescent fixtures with “high efficiency energy-saving models.”
The district decided to participate in the program and, after receiving competitive bids, awarded the work to an independent electrical contractor. In 1993, the Union-Endicott Maintenance Workers Association filed an improper employer practice charge with PERB contending that the district had awarded work previously performed exclusively by Association members to an independent contractor in violation of Section 209-a(1)(d) of the Civil Service Law [the Taylor Law].
PERB agreed and directed the district to cease subcontracting out the work and to make the Association members “whole for any wages or benefits lost as a result of the contracting out of the [unit] work.”
The district asked the courts to annul PERB’s decision on the ground that the Association had not complied with the “notice of claim” requirement set out in Section 3813 of the Education Law. This omission, the district argued, required PERB to dismiss the improper practice charged filed by the Association.
The Appellate Division agreed, pointing out that it has “unequivocally held that the filing of a timely notice of claim pursuant to Education Law Section 3813(1) is a condition precedent to a collective bargaining unit’s filing of an improper practice charge against a school district.”
Accordingly, the Court decided that PERB should have granted the district’s motion to dismiss the Association’s improper employer practice charge based on the Association’s failure to file a timely notice of claim with the district.*
Courts have noted that there are some exceptions to this requirement, however. For example, in CSEA v Lakeland Central School District, the Appellate Division rejected the School District’s claim that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in Section 3813(1).
The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement” by the School District.
Similarly, in a case involving an employee’s applying for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law, State Supreme Court Justice Anthony Kane rejected a school district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district [Elmsford UFSD v Alfred G. Meyer, Supreme Court, Albany County, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807].
While exceptions to the “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813(1) rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
* PERB has dismissed improper practice charges filed by a union on the grounds that it failed to filed a notice of claim with the district as required by 3813(1) of the Education Law in other cases such as Watertown Education Association and Watertown City Schools, 28 PERB 3033.
NYPPL
Probation and layoff rights of an educator being employed by a school district following a take-back BOCES program
Probation and layoff rights of an educator being employed by a school district following a take-back BOCES program
Decisions of the Commissioner of Education 13964
As a result of a “take-back” of programs by component school districts of Rensselaer-Columbia-Greene BOCES, Ellen Chernoff was excessed.
Chernoff subsequently accepted a full-time position with the Wynantskill Central School District in Rensselaer County. Later Chernoff resigned from Wynantskill after she was offered full-time employment by the BOCES, also called Questar III. However, she objected to the statement in her letter of appointment indicating that she would be required to serve a two-year probationary period.
Questar III countered by stating that Chernoff had “freely and knowingly” became a full-time Wynantskill employee and thus extinguished her preferred list rights with it. Commissioner of Education Richard P. Mills agreed and dismissed Chernoff’s appeal.
Another issue in the appeal involved a BOCES form in which excessed employees, including Chernoff, stated they had been advised that by taking a job with a component school district of the BOCES, they had forfeited their place on a preferred list to be re-hired by BOCES. The form included a statement of resignation:
"I have been advised of my rights under Section 3014-b [of the Education Law] and have accepted a full-time position [with the Wynantskill Central School District] in the Tenure area of General Special Education. As a result, I hereby resign as an employee of Questar III effective June 30, 1997. "
The Commissioner found no significance in Chernoff’s execution of this form to the issues under appeal. However, he commented that BOCES lacked authority to require such a document be signed when a teacher is excessed pursuant to Section 3014-b. He recommended that Questar III discontinue the practice.
_______________________________
For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
_______________________________
NYPPL
Decisions of the Commissioner of Education 13964
As a result of a “take-back” of programs by component school districts of Rensselaer-Columbia-Greene BOCES, Ellen Chernoff was excessed.
Chernoff subsequently accepted a full-time position with the Wynantskill Central School District in Rensselaer County. Later Chernoff resigned from Wynantskill after she was offered full-time employment by the BOCES, also called Questar III. However, she objected to the statement in her letter of appointment indicating that she would be required to serve a two-year probationary period.
Questar III countered by stating that Chernoff had “freely and knowingly” became a full-time Wynantskill employee and thus extinguished her preferred list rights with it. Commissioner of Education Richard P. Mills agreed and dismissed Chernoff’s appeal.
Another issue in the appeal involved a BOCES form in which excessed employees, including Chernoff, stated they had been advised that by taking a job with a component school district of the BOCES, they had forfeited their place on a preferred list to be re-hired by BOCES. The form included a statement of resignation:
"I have been advised of my rights under Section 3014-b [of the Education Law] and have accepted a full-time position [with the Wynantskill Central School District] in the Tenure area of General Special Education. As a result, I hereby resign as an employee of Questar III effective June 30, 1997. "
The Commissioner found no significance in Chernoff’s execution of this form to the issues under appeal. However, he commented that BOCES lacked authority to require such a document be signed when a teacher is excessed pursuant to Section 3014-b. He recommended that Questar III discontinue the practice.
_______________________________
For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
_______________________________
NYPPL
Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties
Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties
Walsh v County of Saratoga, 256 AD2d 953 [decided with Mason v County of Saratoga]
In this “tax sale” lawsuit, the Saratoga County Treasurer, George Gasser, said that his official position in the matter and that of the Board of Supervisors were incongruous. When the County Attorney said that he would represent the County in the litigation, Gasser sought independent counsel.
Gasser subsequently asked the County to reimburse his attorney’s fees as provided under Section 18 of the Public Officers Law.
The county declined to do so, claiming that Gasser “never made the required written request for a defense.”
A State Supreme Court justice ruled that Gasser “should be insulated from litigation expenses arising out of the performance of his duties” and the county appealed.
The Appellate Division rejected the county’s contention that Gasser’s failure to “tender the required written notice” precluded its reimbursing him for his legal costs. It said it “consistently held that a statute’s notice requirements need not be deemed a condition precedent to an employee’s right to legal representation.”
According to the ruling, the purpose of such a notice is “to prevent default and to afford the municipality an opportunity to promptly investigate the incident to determine, among other things, whether the employee was acting within the scope of his or her employment.”
The court found that “it was undisputed” that Gasser was acting within the scope of his employment” and that the county was aware of the proceedings at their commencement and had ample opportunity to investigate.
The Appellate Division, affirming the lower court’s ruling, said that there was “no impediment to [Gasser’s] representation pursuant to Public Officers Law Section 18.” Gasser was statutorily entitled to representation by independent counsel once the County Attorney informed him that he would not be appearing on his behalf in the matter.
NYPPL
Walsh v County of Saratoga, 256 AD2d 953 [decided with Mason v County of Saratoga]
In this “tax sale” lawsuit, the Saratoga County Treasurer, George Gasser, said that his official position in the matter and that of the Board of Supervisors were incongruous. When the County Attorney said that he would represent the County in the litigation, Gasser sought independent counsel.
Gasser subsequently asked the County to reimburse his attorney’s fees as provided under Section 18 of the Public Officers Law.
The county declined to do so, claiming that Gasser “never made the required written request for a defense.”
A State Supreme Court justice ruled that Gasser “should be insulated from litigation expenses arising out of the performance of his duties” and the county appealed.
The Appellate Division rejected the county’s contention that Gasser’s failure to “tender the required written notice” precluded its reimbursing him for his legal costs. It said it “consistently held that a statute’s notice requirements need not be deemed a condition precedent to an employee’s right to legal representation.”
According to the ruling, the purpose of such a notice is “to prevent default and to afford the municipality an opportunity to promptly investigate the incident to determine, among other things, whether the employee was acting within the scope of his or her employment.”
The court found that “it was undisputed” that Gasser was acting within the scope of his employment” and that the county was aware of the proceedings at their commencement and had ample opportunity to investigate.
The Appellate Division, affirming the lower court’s ruling, said that there was “no impediment to [Gasser’s] representation pursuant to Public Officers Law Section 18.” Gasser was statutorily entitled to representation by independent counsel once the County Attorney informed him that he would not be appearing on his behalf in the matter.
NYPPL
The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve
The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve
Roma v Ruffo, Court of Appeals, 92 NY2d 489
The collective bargaining agreement between the Susquehanna Valley Central School District and CSEA Local 1000 provided that school matrons would normally work an eight-hour day/40-hour work week and that the district would negotiate any changes in the matron’s working conditions with Local 1000.
The agreement also included a “management rights” clause reserving to the district the right to “transfer and abolish positions” and a “non-binding arbitration” provision. The “final grievance decision” was vested in the school board.
Without negotiating the change with Local 1000, the district told the matrons that their work schedule would be changed to a six-hour day/30-hour workweek “due to budgetary considerations.” The union filed a grievance under the collective bargaining agreement contending that this unilateral change in the work schedule constituted a violation of the contract.
When the school board, the final step in the grievance procedure, denied the grievance after finding that the agreement had not been violated, Local 1000 sued. A state Supreme Court justice decided that the school board’s determination was arbitrary in view of the specific contract provision at issue. It directed the district to reinstate the matron’s former work schedule.
The district appealed, arguing that the lower court’s order was unenforceable because “PERB had exclusive jurisdiction” over the controversy. In other words, the district argued that the Supreme Court did not have jurisdiction to decide the matter. The Appellate Division agreed, vacating the lower court’s decision.
But on further appeal, the Court of Appeals, New York State’s highest court, found the issue involved an allegation that the terms of the contract were violated, not that the district may have committed and improper practice by refusing to negotiate. The court held that if a term and condition of employment specifically covered by the collective bargaining agreement is alleged to have been violated, the issue may be resolved through the agreement’s grievance procedure.
The decision notes that because the matrons’ work hours were covered by a provision in the contract, “neither party had a statutory duty to negotiate changes in those hours.” Thus, said the court, “it necessarily follows that the school district’s unilateral change cannot constitute the improper practice of failure to bargain in good faith.” The court characterized the district’s action as a breach of the contract, remediable through the contractual grievance procedure agreed upon by the parties.
If, however, the contract’s work hours provision was subject to a so-called “contract re-opener” clause, in which the parties identify in the contract a specific issue to be reconsidered at a later date, any change would be subject to collective bargaining. If a party then failed to bargain in good faith, PERB would have exclusive jurisdiction to resolve that issue.
In Susquehanna Valley situation, however, the court ruled that PERB does not have “exclusive jurisdiction” for two reasons:
1. CSEA did not allege anything that was within PERB’s jurisdiction under Section 209-a[1][d] of the Civil Service Law. This subdivision provides that an employer’s alleged failure to bargain in good faith constitutes an “improper employer practice” as Local 1000 simply complained that the district had violated specific terms and conditions of employment set out in the agreement.
2. Section 205(5)(d) places limits PERB’s authority and PERB does not have jurisdiction with respect to (a) enforcing the terms of an agreement between the parties, nor (b) considering alleged violations of a Taylor Law agreement.
Reinstating the ruling by the Supreme Court, the Court of Appeals held that the district had violated the “unambiguous” terms of the Taylor Law agreement between the parties. It directed the district to restore their full-time working hours, salary and benefits “unless/until the conditions of said employment are altered in accordance with the provisions of the collective bargaining agreement.”
As to the “management right’s clause” aspect of the controversy, the Court of Appeals observed that “the scope of the management prerogative clauses was ... ‘a contractual issue beyond PERB’s jurisdiction’” as well. Presumably, this provision could be advanced by the district in support of claim that its unilateral change in the matron’s work schedule did not violate the contract.
NYPPL
Roma v Ruffo, Court of Appeals, 92 NY2d 489
The collective bargaining agreement between the Susquehanna Valley Central School District and CSEA Local 1000 provided that school matrons would normally work an eight-hour day/40-hour work week and that the district would negotiate any changes in the matron’s working conditions with Local 1000.
The agreement also included a “management rights” clause reserving to the district the right to “transfer and abolish positions” and a “non-binding arbitration” provision. The “final grievance decision” was vested in the school board.
Without negotiating the change with Local 1000, the district told the matrons that their work schedule would be changed to a six-hour day/30-hour workweek “due to budgetary considerations.” The union filed a grievance under the collective bargaining agreement contending that this unilateral change in the work schedule constituted a violation of the contract.
When the school board, the final step in the grievance procedure, denied the grievance after finding that the agreement had not been violated, Local 1000 sued. A state Supreme Court justice decided that the school board’s determination was arbitrary in view of the specific contract provision at issue. It directed the district to reinstate the matron’s former work schedule.
The district appealed, arguing that the lower court’s order was unenforceable because “PERB had exclusive jurisdiction” over the controversy. In other words, the district argued that the Supreme Court did not have jurisdiction to decide the matter. The Appellate Division agreed, vacating the lower court’s decision.
But on further appeal, the Court of Appeals, New York State’s highest court, found the issue involved an allegation that the terms of the contract were violated, not that the district may have committed and improper practice by refusing to negotiate. The court held that if a term and condition of employment specifically covered by the collective bargaining agreement is alleged to have been violated, the issue may be resolved through the agreement’s grievance procedure.
The decision notes that because the matrons’ work hours were covered by a provision in the contract, “neither party had a statutory duty to negotiate changes in those hours.” Thus, said the court, “it necessarily follows that the school district’s unilateral change cannot constitute the improper practice of failure to bargain in good faith.” The court characterized the district’s action as a breach of the contract, remediable through the contractual grievance procedure agreed upon by the parties.
If, however, the contract’s work hours provision was subject to a so-called “contract re-opener” clause, in which the parties identify in the contract a specific issue to be reconsidered at a later date, any change would be subject to collective bargaining. If a party then failed to bargain in good faith, PERB would have exclusive jurisdiction to resolve that issue.
In Susquehanna Valley situation, however, the court ruled that PERB does not have “exclusive jurisdiction” for two reasons:
1. CSEA did not allege anything that was within PERB’s jurisdiction under Section 209-a[1][d] of the Civil Service Law. This subdivision provides that an employer’s alleged failure to bargain in good faith constitutes an “improper employer practice” as Local 1000 simply complained that the district had violated specific terms and conditions of employment set out in the agreement.
2. Section 205(5)(d) places limits PERB’s authority and PERB does not have jurisdiction with respect to (a) enforcing the terms of an agreement between the parties, nor (b) considering alleged violations of a Taylor Law agreement.
Reinstating the ruling by the Supreme Court, the Court of Appeals held that the district had violated the “unambiguous” terms of the Taylor Law agreement between the parties. It directed the district to restore their full-time working hours, salary and benefits “unless/until the conditions of said employment are altered in accordance with the provisions of the collective bargaining agreement.”
As to the “management right’s clause” aspect of the controversy, the Court of Appeals observed that “the scope of the management prerogative clauses was ... ‘a contractual issue beyond PERB’s jurisdiction’” as well. Presumably, this provision could be advanced by the district in support of claim that its unilateral change in the matron’s work schedule did not violate the contract.
NYPPL
Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability
Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability
Stroh v Harrison School District, NYS Sup. Ct., [Not selected for publication in the Official Reports]
The Stroh case illustrates some of the elements an employer should consider in the event an individual is disabled as the result of a work-connected injury or disease for the purposes of Section 71 of the Civil Service Law.
Essentially Section 71 provides that where an individual has been disabled within the meaning of the Workers’ Compensation Law, he or she is entitled to a leave of absence for at least one year, unless the individual is permanently incapacitated from performing the duties of his or her position. This is commonly referred to as “Section 71 leave.” If the employee is terminated from a Section 71 leave, he or she may seek reinstatement by applying to the civil service commission having jurisdiction for a medical examination. This application must be submitted by the individual within one year of the termination of his or her disability.
If the commission’s medical officer certifies that the individual is physically and mentally fit to perform the duties of the position, the individual is to be reinstated to his or her former position, if it is available. If it is not available, the individual is to be reinstated to a similar position or a position for which he or she is eligible. If no position is available, the individual’s name is to be placed on a preferred list.
In this case, State Supreme Court Justice Samuel G. Fredman held that Thomas Stroh, the Harrison School District’s head custodian, had not been “properly terminated” within the meaning of Section 71 because he had never been placed on leave pursuant to Section 71. Accordingly, Stroh, said the court, was entitled to reinstatement with back salary and benefits as of December 31, 1995.
Justice Fredman concluded that Stroh had not been placed on leave pursuant to Section 71 because the district did not establish “either that [Stroh’s] date of injury was the date of commencement of the governing Section 71 time period, or that [Stroh] was made aware of this fact in any event.”
The court found that Stroh suffered a work-related injury and was out “on workers’ compensation” from April 1994 until he returned to work in February 1995. On March 20, 1995, the district determined that Stroh “was unable to perform his job duties” and placed him on “sick leave.” It later told him that was terminated pursuant to Section 71. The decision also notes that Stroh applied for, but was denied, accidental disability retirement by the New York State Employees’ Retirement System.
Justice Fredman said that he “declines to leave [Stroh] in the untenable position into which [the district’s] actions have placed him, namely, that his employment was terminated by [the district] because he allegedly was disabled, but the Retirement System has found him ‘not permanently incapacitated for the performance’ of the very same duties and denied his application for an Accidental Disability Retirement.”
Another element noted by the court was the medical opinion submitted by the district’s physician which stated that it was the “physician’s ‘impression’ that ‘Mr. Stroh will not be able to fulfill his duties as so outlined’ in ‘the job description of a Head Custodial worker’....” This, said the Justice Fredman, does not “indicate unequivocally” that Stroh was unable to fulfill his duties.
The Americans with Disabilities Act [ADA] could also be a factor in Section 71 cases. If an individual is found, or is perceived to be, disabled, ADA requires that the employer consider the practicability of providing a “reasonable accommodation” of the employee’s disability. Stroh claimed that he could perform the duties of his position while his employer decided that he was not qualified to do so.
Although the ruling is silent on this point, the respective positions of the parties suggest that it would have been appropriate for the district to have explored the possibility of providing Stroh with a “reasonable accommodation” in order to be in compliance with ADA.
Stroh v Harrison School District, NYS Sup. Ct., [Not selected for publication in the Official Reports]
The Stroh case illustrates some of the elements an employer should consider in the event an individual is disabled as the result of a work-connected injury or disease for the purposes of Section 71 of the Civil Service Law.
Essentially Section 71 provides that where an individual has been disabled within the meaning of the Workers’ Compensation Law, he or she is entitled to a leave of absence for at least one year, unless the individual is permanently incapacitated from performing the duties of his or her position. This is commonly referred to as “Section 71 leave.” If the employee is terminated from a Section 71 leave, he or she may seek reinstatement by applying to the civil service commission having jurisdiction for a medical examination. This application must be submitted by the individual within one year of the termination of his or her disability.
If the commission’s medical officer certifies that the individual is physically and mentally fit to perform the duties of the position, the individual is to be reinstated to his or her former position, if it is available. If it is not available, the individual is to be reinstated to a similar position or a position for which he or she is eligible. If no position is available, the individual’s name is to be placed on a preferred list.
In this case, State Supreme Court Justice Samuel G. Fredman held that Thomas Stroh, the Harrison School District’s head custodian, had not been “properly terminated” within the meaning of Section 71 because he had never been placed on leave pursuant to Section 71. Accordingly, Stroh, said the court, was entitled to reinstatement with back salary and benefits as of December 31, 1995.
Justice Fredman concluded that Stroh had not been placed on leave pursuant to Section 71 because the district did not establish “either that [Stroh’s] date of injury was the date of commencement of the governing Section 71 time period, or that [Stroh] was made aware of this fact in any event.”
The court found that Stroh suffered a work-related injury and was out “on workers’ compensation” from April 1994 until he returned to work in February 1995. On March 20, 1995, the district determined that Stroh “was unable to perform his job duties” and placed him on “sick leave.” It later told him that was terminated pursuant to Section 71. The decision also notes that Stroh applied for, but was denied, accidental disability retirement by the New York State Employees’ Retirement System.
Justice Fredman said that he “declines to leave [Stroh] in the untenable position into which [the district’s] actions have placed him, namely, that his employment was terminated by [the district] because he allegedly was disabled, but the Retirement System has found him ‘not permanently incapacitated for the performance’ of the very same duties and denied his application for an Accidental Disability Retirement.”
Another element noted by the court was the medical opinion submitted by the district’s physician which stated that it was the “physician’s ‘impression’ that ‘Mr. Stroh will not be able to fulfill his duties as so outlined’ in ‘the job description of a Head Custodial worker’....” This, said the Justice Fredman, does not “indicate unequivocally” that Stroh was unable to fulfill his duties.
The Americans with Disabilities Act [ADA] could also be a factor in Section 71 cases. If an individual is found, or is perceived to be, disabled, ADA requires that the employer consider the practicability of providing a “reasonable accommodation” of the employee’s disability. Stroh claimed that he could perform the duties of his position while his employer decided that he was not qualified to do so.
Although the ruling is silent on this point, the respective positions of the parties suggest that it would have been appropriate for the district to have explored the possibility of providing Stroh with a “reasonable accommodation” in order to be in compliance with ADA.
NYPPL
Nov 22, 2010
Hearing officer recommends termination of employee unwilling to follow instructions
Hearing officer recommends termination of employee unwilling to follow instructions
Dept. of Housing Preservation and Development v Hand, OATH Index #2594/10
OATH Administrative Law Judge Kara Miller decided that a clerical employee's persistent unwillingness to properly process tenant appointments warranted termination.
Judge Miller found that the employee, Deborrah Hand, had improperly processed 112 appointments despite the fact that she had been given step-by-step instructions on how to do the task.
Hand, instead, “deliberatively chose to do it her own way.” As a result of Hand's failure to make proper computer entries complaints were automatically closed out and inspectors were not sent to scheduled inspections.
Consequently, Housing received complaints from tenants who waited at home for inspectors who never came.
Judge Miller recommend that Hand be terminated because of her unwillingness to follow instructions “constituted incompetence.” The ALJ also commented that Hand’s incompetence “cannot be cured by moving her to another job title.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2594.pdf
NYPPL
Dept. of Housing Preservation and Development v Hand, OATH Index #2594/10
OATH Administrative Law Judge Kara Miller decided that a clerical employee's persistent unwillingness to properly process tenant appointments warranted termination.
Judge Miller found that the employee, Deborrah Hand, had improperly processed 112 appointments despite the fact that she had been given step-by-step instructions on how to do the task.
Hand, instead, “deliberatively chose to do it her own way.” As a result of Hand's failure to make proper computer entries complaints were automatically closed out and inspectors were not sent to scheduled inspections.
Consequently, Housing received complaints from tenants who waited at home for inspectors who never came.
Judge Miller recommend that Hand be terminated because of her unwillingness to follow instructions “constituted incompetence.” The ALJ also commented that Hand’s incompetence “cannot be cured by moving her to another job title.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2594.pdf
NYPPL
A party seeking to vacate an arbitration award must prove one or more of the limited reasons for vacating the award set out in Article 75
A party seeking to vacate an arbitration award must prove one or more of the limited reasons for vacating the award set out in Article 75
Matter of Smith v New York City Dept. of Educ., 2010 NY Slip Op 51989(U), Decided on November 8, 2010, Supreme Court, New York County, Judge Barbara Jaffe, [Not selected for publication in the Official Reports]
Theodore Smith, a tenured physical education teacher at the New York City Department of Education’s Museum School, was served with 23 charges Education Law 3020-a.
Arbitrator Jack Tillem was assigned to conduct the hearing in the [first] proceeding. In the course of this proceeding Smith’s attorney, David Kearney,* told Tillem that Smith had threatened to kill Tillem, whereupon Tillem recused himself from conducting the hearing in the first proceeding. .
Following an investigation by Office of the Special Commissioner of Investigations (SCI) into Kearney's allegations Smith was referred to the Department of Education’s Medical Unit for psychiatric evaluation. In the meanwhile, Kearney moved for leave to withdraw as counsel for Smith in the federal court action and described why he wished to so withdraw -- the threats Smith allegedly made against Tillem.**
Subsequently a new arbitrator conducted the disciplinary hearing , found Smith guilty of certain charges and recommended that Smith be suspended without pay for one year, a ruling that was ultimately sustained by the Appellate Division. [Smith v Department of Education, 67 AD3d 555, motion for leave to appeal denied, Slip Opinion No: 2010 NY Slip Op 66952].
The Department of Education then commenced a second disciplinary proceeding against Smith pursuant to Education Law 3020-a in which it alleged that Smith had made death threats against Tillem resulting in Tillem's recusing himself from the first proceeding thus “causing delay and thereby obstructing, impairing and perverting the administration of law.”***
The arbitrator found that Smith had "uttered death threats" against the arbitrator assigned to his first §3020-a hearing and that "such threats constituted just cause for [Smith's] dismissal from service."
Smith filed a petition pursuant to CPLR Article 75 contending that the arbitration award should be vacated on the ground of corruption, or fraud or misconduct by the arbitrator and the Department's attorneys, “which undermined the validity of the award and prejudiced his rights, as the arbitrator was biased against him.”
Noting that the scope of judicial review of an arbitration proceeding is extremely limited, Judge Jaffe said that “The court must defer to the arbitrator's decision and is bound by the arbitrator's factual findings and interpretations of the agreement at issue.”
Judge Jaffe explained that after a hearing is held pursuant to §3020-a, a party may apply to vacate the arbitrator's decision pursuant to CPLR 7511 based on allegations of misconduct, bias, excess of power, or procedural defects.
The party challenging the arbitration award, however, has the burden of proving that the award is invalid for one or more of the reasons for vacating an arbitration award specified in CPLR Article 75. Further, an allegation of bias against an arbitrator must be established by clear and convincing proof, showing more than a mere inference of partiality.
Judge Jaffe, finding that the arbitrator’s award in the second proceeding was rational and supported by adequate evidence, ruled that Smith had not satisfied his burden of proving that the arbitrator engaged in corruption, or fraud, or misconduct, and confirmed the arbitration award.
* Prior to the charges being brought against Smith, Smith retained the law firm of Neal Brickman & Associates to file a lawsuit in federal court against the NYC Department of Education. David Kearney, an attorney with the firm, agreed to represent Smith in the Federal action and subsequently agreed to represent Smith in the §3020-a proceeding.
** SCI reported that it had substantiated Kearney's allegations regarding Smith’s threats and recommended that Smith's employment be terminated and that he be placed on the Department’s “ineligible employment list.”
*** Smith was later served with third set of charges related to time and attendance. All of the charges were consolidated and considered in the second §3020-a hearing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51989.htm
NYPPL
Matter of Smith v New York City Dept. of Educ., 2010 NY Slip Op 51989(U), Decided on November 8, 2010, Supreme Court, New York County, Judge Barbara Jaffe, [Not selected for publication in the Official Reports]
Theodore Smith, a tenured physical education teacher at the New York City Department of Education’s Museum School, was served with 23 charges Education Law 3020-a.
Arbitrator Jack Tillem was assigned to conduct the hearing in the [first] proceeding. In the course of this proceeding Smith’s attorney, David Kearney,* told Tillem that Smith had threatened to kill Tillem, whereupon Tillem recused himself from conducting the hearing in the first proceeding. .
Following an investigation by Office of the Special Commissioner of Investigations (SCI) into Kearney's allegations Smith was referred to the Department of Education’s Medical Unit for psychiatric evaluation. In the meanwhile, Kearney moved for leave to withdraw as counsel for Smith in the federal court action and described why he wished to so withdraw -- the threats Smith allegedly made against Tillem.**
Subsequently a new arbitrator conducted the disciplinary hearing , found Smith guilty of certain charges and recommended that Smith be suspended without pay for one year, a ruling that was ultimately sustained by the Appellate Division. [Smith v Department of Education, 67 AD3d 555, motion for leave to appeal denied, Slip Opinion No: 2010 NY Slip Op 66952].
The Department of Education then commenced a second disciplinary proceeding against Smith pursuant to Education Law 3020-a in which it alleged that Smith had made death threats against Tillem resulting in Tillem's recusing himself from the first proceeding thus “causing delay and thereby obstructing, impairing and perverting the administration of law.”***
The arbitrator found that Smith had "uttered death threats" against the arbitrator assigned to his first §3020-a hearing and that "such threats constituted just cause for [Smith's] dismissal from service."
Smith filed a petition pursuant to CPLR Article 75 contending that the arbitration award should be vacated on the ground of corruption, or fraud or misconduct by the arbitrator and the Department's attorneys, “which undermined the validity of the award and prejudiced his rights, as the arbitrator was biased against him.”
Noting that the scope of judicial review of an arbitration proceeding is extremely limited, Judge Jaffe said that “The court must defer to the arbitrator's decision and is bound by the arbitrator's factual findings and interpretations of the agreement at issue.”
Judge Jaffe explained that after a hearing is held pursuant to §3020-a, a party may apply to vacate the arbitrator's decision pursuant to CPLR 7511 based on allegations of misconduct, bias, excess of power, or procedural defects.
The party challenging the arbitration award, however, has the burden of proving that the award is invalid for one or more of the reasons for vacating an arbitration award specified in CPLR Article 75. Further, an allegation of bias against an arbitrator must be established by clear and convincing proof, showing more than a mere inference of partiality.
Judge Jaffe, finding that the arbitrator’s award in the second proceeding was rational and supported by adequate evidence, ruled that Smith had not satisfied his burden of proving that the arbitrator engaged in corruption, or fraud, or misconduct, and confirmed the arbitration award.
* Prior to the charges being brought against Smith, Smith retained the law firm of Neal Brickman & Associates to file a lawsuit in federal court against the NYC Department of Education. David Kearney, an attorney with the firm, agreed to represent Smith in the Federal action and subsequently agreed to represent Smith in the §3020-a proceeding.
** SCI reported that it had substantiated Kearney's allegations regarding Smith’s threats and recommended that Smith's employment be terminated and that he be placed on the Department’s “ineligible employment list.”
*** Smith was later served with third set of charges related to time and attendance. All of the charges were consolidated and considered in the second §3020-a hearing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51989.htm
NYPPL
Statute of limitations for filing Section 75 disciplinary charges
Statute of limitations for filing Section 75 disciplinary charges
Wade v Ticonderoga Town Board, 256 AD2d 860, motion for leave to appeal denied, 93 NY2d 804
Section 75 disciplinary charges were brought against John K. Wade, then serving as the Town of Ticonderoga’s chief of police. The charges alleged that Wade had engaged in sexual misconduct directed at town employees or former town employees. Wade was found guilty of the charges and the penalty imposed was dismissal.
Wade appealed, contending that certain charges filed against him were barred by the statute of limitations as they were brought more than 12 months after the relevant incident. He argued that Section 75.4’s 18-month statute of limitation for bring such charges did not apply in his case because he was a “managerial employee” and the statute of limitations for such employees is one-year after the occurrence of the alleged incompetency or misconduct occurred.
The Appellate Division, however, pointed out that Wade’s theory overlooked one critical phrase contained in Section 75.4: a “state employee who is designated managerial or confidential” within the meaning of the Taylor Law. The court said “the simple answer is that, as Chief of a Town police force, [Wade] was not a State employee.”
Accordingly, the court ruled, Section 75.4’s “general 18-month Statute of Limitations will govern all of the specifications against [Wade] except those which, “if proved in a court of appropriate jurisdiction, [would] constitute a crime, in which case no limitations period applies.”
Apparently some of the charges were brought more than 18 months after the underlying incident. The Appellate Division commented that such charges, “if established at trial, have made out either the crime of sexual abuse in the third degree [Penal Law Section 130.55] or the crime of aggravated harassment in the second degree [Penal Law Section 240.30(1)] or both.”
As to the penalty imposed, dismissal, the court said that Wade’s “unprovoked, unwelcome and unwarranted sexual advances, sexual contact and demeaning comments of a sexual nature directed to female employees were entirely inappropriate and constitute conduct unbecoming a police officer.”
Finding that the penalty was “by no means so disproportionate as to shock our sense of fairness,” the Appellate Division pointed out that in Petties v NYS Department of Mental Retardation and Development Disabilities, 93 AD2d 960, it held that “sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.”
NYPPL
Wade v Ticonderoga Town Board, 256 AD2d 860, motion for leave to appeal denied, 93 NY2d 804
Section 75 disciplinary charges were brought against John K. Wade, then serving as the Town of Ticonderoga’s chief of police. The charges alleged that Wade had engaged in sexual misconduct directed at town employees or former town employees. Wade was found guilty of the charges and the penalty imposed was dismissal.
Wade appealed, contending that certain charges filed against him were barred by the statute of limitations as they were brought more than 12 months after the relevant incident. He argued that Section 75.4’s 18-month statute of limitation for bring such charges did not apply in his case because he was a “managerial employee” and the statute of limitations for such employees is one-year after the occurrence of the alleged incompetency or misconduct occurred.
The Appellate Division, however, pointed out that Wade’s theory overlooked one critical phrase contained in Section 75.4: a “state employee who is designated managerial or confidential” within the meaning of the Taylor Law. The court said “the simple answer is that, as Chief of a Town police force, [Wade] was not a State employee.”
Accordingly, the court ruled, Section 75.4’s “general 18-month Statute of Limitations will govern all of the specifications against [Wade] except those which, “if proved in a court of appropriate jurisdiction, [would] constitute a crime, in which case no limitations period applies.”
Apparently some of the charges were brought more than 18 months after the underlying incident. The Appellate Division commented that such charges, “if established at trial, have made out either the crime of sexual abuse in the third degree [Penal Law Section 130.55] or the crime of aggravated harassment in the second degree [Penal Law Section 240.30(1)] or both.”
As to the penalty imposed, dismissal, the court said that Wade’s “unprovoked, unwelcome and unwarranted sexual advances, sexual contact and demeaning comments of a sexual nature directed to female employees were entirely inappropriate and constitute conduct unbecoming a police officer.”
Finding that the penalty was “by no means so disproportionate as to shock our sense of fairness,” the Appellate Division pointed out that in Petties v NYS Department of Mental Retardation and Development Disabilities, 93 AD2d 960, it held that “sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.”
NYPPL
Employee charged with “computer trespass” for allegedly tampering with department’s computer records
Employee charged with “computer trespass” for allegedly tampering with department’s computer records
Saunders v Washington County, 255 AD2d 788
After announcing that she was resigning her from position as payroll clerk with the Washington County Sheriff’s Department, Mary Lou Saunders told a co-worker, Joanne Murone, she had deleted a budget report from the computer and planned on deleting other files.
Murone reported Saunders’ statement to her superiors and Saunders’ computer access code was deactivated the same day - July 22, 1992.
On July 23, 1992, a current purchase order list could not be retrieved from the computer. It was then discovered that between 9:30 a.m. and 9:42 a.m. “someone had accessed the computer from the communications center using Murone’s access code and deleted over 100 files.” When questioned by the Sheriff, Saunders admitted that she had used Murone’s access code without permission to delete the files, claiming that “she did not intentionally delete current files.”
During a subsequent investigation by the State Police, Saunders “indicated that she had been the subject of harassment at work and readily acknowledged that, after being denied access to the computer system, she used Murone’s code to delete files in an ‘attempt to show the department the value of [her] services.’”
Saunders was arrested and charged with a felony count of “computer trespass” [Penal Law Section 156.10(2)] and a misdemeanor count of tampering with public records ... [Penal Law Section 175.20]. The felony charge was reduced to misdemeanor.
After a jury acquitted Saunders of all charges, she sued the county, alleging “false arrest, malicious prosecution and defamation.” A State Supreme Court justice granted the county’s motion for summary judgment, dismissing Saunders’ petition.
With respect to Saunders’ allegations of false arrest and malicious prosecution, the Appellate Division affirmed the lower court’s dismissal of her complaint, indicating that “the unrefuted evidence in the record, including [Saunders’] own admissions and the statements of her co-workers, supports a finding that a reasonable person would have believed that [Saunders] had committed the crimes for which she was arrested.”
As to Saunders’ defamation claims, which was based on the Sheriff’s Department’s issuing a press release reporting her arrest, the Appellate Division pointed out that “truth constitutes a complete defense to such a claim.”
Since there was no substantive factual dispute that all the statements contained in the press release were true, the Appellate Division held that Saunders’ defamation cause of action was also properly dismissed by the lower court.
NYPPL
Saunders v Washington County, 255 AD2d 788
After announcing that she was resigning her from position as payroll clerk with the Washington County Sheriff’s Department, Mary Lou Saunders told a co-worker, Joanne Murone, she had deleted a budget report from the computer and planned on deleting other files.
Murone reported Saunders’ statement to her superiors and Saunders’ computer access code was deactivated the same day - July 22, 1992.
On July 23, 1992, a current purchase order list could not be retrieved from the computer. It was then discovered that between 9:30 a.m. and 9:42 a.m. “someone had accessed the computer from the communications center using Murone’s access code and deleted over 100 files.” When questioned by the Sheriff, Saunders admitted that she had used Murone’s access code without permission to delete the files, claiming that “she did not intentionally delete current files.”
During a subsequent investigation by the State Police, Saunders “indicated that she had been the subject of harassment at work and readily acknowledged that, after being denied access to the computer system, she used Murone’s code to delete files in an ‘attempt to show the department the value of [her] services.’”
Saunders was arrested and charged with a felony count of “computer trespass” [Penal Law Section 156.10(2)] and a misdemeanor count of tampering with public records ... [Penal Law Section 175.20]. The felony charge was reduced to misdemeanor.
After a jury acquitted Saunders of all charges, she sued the county, alleging “false arrest, malicious prosecution and defamation.” A State Supreme Court justice granted the county’s motion for summary judgment, dismissing Saunders’ petition.
With respect to Saunders’ allegations of false arrest and malicious prosecution, the Appellate Division affirmed the lower court’s dismissal of her complaint, indicating that “the unrefuted evidence in the record, including [Saunders’] own admissions and the statements of her co-workers, supports a finding that a reasonable person would have believed that [Saunders] had committed the crimes for which she was arrested.”
As to Saunders’ defamation claims, which was based on the Sheriff’s Department’s issuing a press release reporting her arrest, the Appellate Division pointed out that “truth constitutes a complete defense to such a claim.”
Since there was no substantive factual dispute that all the statements contained in the press release were true, the Appellate Division held that Saunders’ defamation cause of action was also properly dismissed by the lower court.
NYPPL
Employee denied unemployment insurance benefits following termination after threatening her supervisor
Employee denied unemployment insurance benefits following termination after threatening her supervisor
Tracy v Comm. of Labor, App. Div., 256 AD2d 800
In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy case indicates, however, leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence.
Pamela A. Tracy was apparently upset about the manner in which management handled her complaints concerning a co-worker’s conduct. She left a “vulgar and threatening” message on her supervisor’s voice mail. As a result she was fired. The Unemployment Insurance Appeals Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct.”
The Appellate Division sustained the board’s decision. It said that it was “well settled that the use of vulgar language and disrespectful conduct towards supervisors constitutes disqualifying misconduct.”
NYPPL
Tracy v Comm. of Labor, App. Div., 256 AD2d 800
In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy case indicates, however, leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence.
Pamela A. Tracy was apparently upset about the manner in which management handled her complaints concerning a co-worker’s conduct. She left a “vulgar and threatening” message on her supervisor’s voice mail. As a result she was fired. The Unemployment Insurance Appeals Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct.”
The Appellate Division sustained the board’s decision. It said that it was “well settled that the use of vulgar language and disrespectful conduct towards supervisors constitutes disqualifying misconduct.”
NYPPL
Payments for superintendent’s doctorate studies by school district found lawful
Payments for superintendent’s doctorate studies by school district found lawful
Decisions of the Commissioner of Education, 14032
Taxpayer David Shufelt complained that the Board of Education of Webutuck Central School District in Dutchess County “authorized payments to district employees without formal resolution or public vote.”
Among the payments challenged by Shufelt was an “educational allowance” supporting the superintendent’s studies towards her doctorate degree. The Commissioner of Education dismissed Shufelt’s appeal as untimely but nevertheless commented that:
The superintendent’s contract clearly allowed for the board to pay her an educational allowance. [Shufelt] has failed to demonstrate that this benefit was in any way improper.
NYPPL
Decisions of the Commissioner of Education, 14032
Taxpayer David Shufelt complained that the Board of Education of Webutuck Central School District in Dutchess County “authorized payments to district employees without formal resolution or public vote.”
Among the payments challenged by Shufelt was an “educational allowance” supporting the superintendent’s studies towards her doctorate degree. The Commissioner of Education dismissed Shufelt’s appeal as untimely but nevertheless commented that:
The superintendent’s contract clearly allowed for the board to pay her an educational allowance. [Shufelt] has failed to demonstrate that this benefit was in any way improper.
NYPPL
Nov 19, 2010
Goggle Blogger Reading List
Goggle Blogger Reading List
Source: Google
With the Blogger "Reading List" you can read all of the latest posts from your favorite blogs.
The "Blogger Reading List" you create enables you to subscribe to any blog with a feed* and will update instantly each time a new post is published on any blog listed on your "Blogger Reading List."
It is easy to add a blog to your Reading List, and it's a Google "free service." For additional information about creating a Blogger Reading List, please go to:
http://www.google.com/support/blogger/bin/answer.py?hl=en&answer=99761
* NYPPL’s feed is “ATOM” and access is posted at the bottom of each day’s posting at
Source: Google
With the Blogger "Reading List" you can read all of the latest posts from your favorite blogs.
The "Blogger Reading List" you create enables you to subscribe to any blog with a feed* and will update instantly each time a new post is published on any blog listed on your "Blogger Reading List."
It is easy to add a blog to your Reading List, and it's a Google "free service." For additional information about creating a Blogger Reading List, please go to:
http://www.google.com/support/blogger/bin/answer.py?hl=en&answer=99761
* NYPPL’s feed is “ATOM” and access is posted at the bottom of each day’s posting at
Subscribe to:
Posts (Atom)
Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law.
Email: publications@nycap.rr.com