Public employers may prohibit its employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test

Public employers may prohibit its employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test

Matter of Spence v New York State Dept. of Agric. & Mkts., 154 AD3d 1234, Decided October 26, 2017

In the Matter of Wayne Spence, as President of the New York State Public Employees Federation, AFL-CIO, et al. v New York State Department of Agriculture and Markets et al., 2018 NY Slip Op 06071, Court of Appeals, Decided on September 18, 2018

Gregory Kulzer and Ronald Brown were employed as Dairy Product Specialists by the New York State Department of Agriculture and Markets [Department]. Their duties included inspecting and rating milk plants and farms in accordance with state and federal law.

In 2013, Kulzer submitted a request for "approval of outside activities" to the Department to campaign for the elected position of Lewis County Legislator. His request was approved, subject to certain restrictions, and he successfully campaigned for and was sworn in as a Lewis County Legislator in January 2014. Upon expiration of the Department's initial approval, Kulzer submitted a renewed request seeking continued approval to serve as a Lewis County Legislator. In August 2014, the Department disapproved Kulzer's request and subsequently the Commissioner sustained the disapproval on the ground that, among other things, Kulzer's outside activities created the appearance of a conflict of interest.

Brown subsequently submitted a request for approval of outside activities to the Department, seeking approval to campaign for and serve as an Oneida County Legislator. Brown's request was disapproved by the Department, also on the ground that this outside activity would create the appearance of a conflict of interest, and, upon appeal, the Commissioner upheld the disapproval.*

Following these actions the Department revised its Employee Policies Handbook with respect to employees' outside activities providing that "[a]ny employee that holds a position that requires him or her to conduct inspections of regulated parties may not campaign for or hold elected office."*

Wayne Spence, as President of the New York State Public Employees Federation, et al, [Petitioners] initiated a CPLR Article 78 proceeding challenging the Department's disapproval of the requests submitted by Kulzer and Brown to campaign for and serve as county legislators, contending that the Department's determinations and subsequent amendment of its outside-activities policy violated the First Amendment of the Constitution of the United States and were otherwise arbitrary, capricious and without lawful authority.

Supreme Court granted the Department's motion to dismiss the Petitioners' Article 78 action and Petitioners appealed the Supreme Court's decision to the Appellate Division contending that the lower court had erred when found that the Department's disapproval of Kulzer's and Brown's requests to campaign and hold elected office and the revision of its outside activities policy did not violate the First Amendment.

The Appellate Division, citing Pickering v Board of Education of Township High School District, 391 US 563, noted that although "it is well settled that public employees do not 'relinquish the First Amendment rights [that] they would otherwise enjoy as citizens' as a result of their public employment," nevertheless upon entering government service, "public employees do accept certain restraints or limitations on their free speech rights" as it is recognized that the State has an interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.**

In the words of the Appellate Division, "[t]he primary issue, therefore, is whether Supreme Court erred when it determined that the Department's interest in reducing potential unethical behavior and preserving the professionalism and integrity of the Department outweighed the interest of Kulzer and Brown to serve dual roles as both government inspectors and candidates for elected office."

Applying the so-called Pickering Balancing Test, courts have made clear that such a balance will tip in the employer's favor so long as "(1) the employer's prediction of the disruption that such speech will cause is reasonable; (2) the potential for disruption outweighs the value of the speech; and (3) the employer took the adverse employment action not in retaliation for the employee's speech, but because of the potential for disruption."

Here the Appellate Division found that Supreme Court had properly determined that the Pickering balance tips in the Department's favor and, therefore, the Department's disapprovals and revised outside activities policy were not unconstitutional. In effect the court decided that the  Department did not act arbitrarily or capriciously when it revised its outside activities policy nor when it disapproved Kulzer's and Brown's requests to campaign for and hold elected office, explaining that "so long as the Department's determinations have 'a rational basis, [they] will be sustained, even if a different result would not be unreasonable.'"

The Court of Appeals, Judges Rivera and Wilson, in a separate opinion, dissenting, sustained the Appellate Division ruling holding that "the challenged policy has not been shown to be unconstitutional."

* Upon disapproval of Kulzer's request to continue serving as Lewis County Legislator, the Department informed Kulzer that, absent his resignation from the County Legislature, he would be subject to disciplinary action. Kulzer did not resign from his position in the County Legislature and, as a result, in May 2015, the Department initiated disciplinary proceedings against him. It appears that said disciplinary proceedings have been held in abeyance pending the outcome of the instant appeal. Matter of Spence v New York State Dept. of Agric. & Mkts., 154 AD3d 1234, Decided October 26, 2017; affirmed, Court of Appeal, 2018 NY Slip Op 06071.

** N.B. The federal Hatch Act bars partisan political activities by certain State and municipal employees

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07506.htm

Determining the availability of arbitration to resolve a dispute between a public employer and an employee organization

Determining the availability of arbitration to resolve a dispute between a public employer and an employee organization
Town of North Hempstead v  Civil Service Employees Association, Inc., Local 1000, 2018 NY Slip Op 06098, Appellate Division, Second Department

An employee of the Town of North Hempstead was served with nine individual disciplinary notices for various instances of alleged "misconduct and insubordination." Each notice individually proposed a penalty of a five-day suspension without pay in the event the employee was found guilty of the charge[s] and specification[s] set out in that particular notice of discipline.

The employee was found guilty of the charge[s] and the specification[s] set out in each one of the nine notices of discipline and filed grievances appealing each of the nine disciplinary decisions and the penalties imposed by the appointing authority. All of the employee's administrative appeals submitted in accordance with the relevant procedural steps set out in the Collective Bargaining Agreement [CBA] between the parties were denied. Ultimately the employee's collective bargaining representative, the Civil Service Employees Association, Inc., Local 1000, [CSEA] filed a demand to arbitrate the employee's nine disciplinary grievances appealing the nine disciplinary determinations.

In response to CSEA's demand to submit the nine grievances to arbitration, North Hempstead filed a petition pursuant to CPLR Article 75 seeking a permanent stay of arbitration for each of the nine disciplinary decisions and penalties imposed on the employee.

In opposition to North Hempstead's petition, CSEA contended that because the aggregate penalty of all the disciplinary decisions exceeded five days' suspension, resolution of the disputes were controlled by Section XII of the CBA, which set forth the disciplinary procedure for those disputes carrying a penalty of six days' suspension or more and which provided for arbitration of the dispute.

In rebuttal North Hempstead argued that as no single proposed disciplinary penalty exceed a five day suspension Section X of the CBA controlled and Section X did not provided for the arbitration of disputes where the disciplinary action resulted in a penalty of up to, and including, a five days' suspension without pay.

Supreme Court, concluding that because the penalty imposed on the employee resulted in a total of 45 days of suspension without pay, held that the grievances were arbitrable and denied North Hempstead's petition to permanently stay arbitration. North Hempstead appealed.

Reversing the lower court's ruling, the Appellate Division explained that there is a two-step test used to determine "whether a dispute between a public sector employer and an employee organization is arbitrable." Initially the court must determine if there is any statutory, constitutional, or public policy prohibition against arbitrating the dispute. It the court finds that there is no prohibition against arbitration, the court must examine the parties' collective bargaining agreement to determine if the parties, had in fact, agreed to arbitrate the particular dispute at issue.

Noting that North Hempstead did not contend that arbitration of the grievances at issue was prohibited by law or public policy, the Appellate Division said that in this instance the only issue to address was whether the parties had, in fact, agreed to arbitrate these particular grievances.

In contrast to general labor disputes in the private sector involving arbitration, the Appellate Division, citing Matter of Board of Educ. of Valhalla Union Free Sch. Dist. v Valhalla Teachers Assn., 112 AD3d 620, pointed out that the intent of the parties in the public sector to arbitrate alleged violations of provisions set out in a collective bargaining agreement "may not be presumed." Absent "clear, unequivocal agreement to the contrary," the Appellate Division opined that there was a presumption that the parties entering into a collective bargaining agreement in the public sector "did not intend to refer differences which might arise to the arbitration forum."

Contrary to the Union's contention, the Appellate Division found that because the disciplinary notices each carried a penalty of a five-day suspension, "the grievance procedure of Section X of the CBA, which did not permit arbitration, was applicable" notwithstanding the fact that "the aggregate penalty assessed against the employee exceeded five suspension days." In other words, the fact that the aggregate penalty involved exceed "five suspension days" did not place the dispute within the ambit of Section XII of the CBA.*

Further, said the Appellate Division, [1] neither Section X nor Section XII of the CBA provides for any deviation from the respective procedures where an employee may be subject to more than one disciplinary action, and [2] CSEA, by its participation in the administrative grievance procedure, including presenting its appeals to the Labor-Management Committee, "essentially conceded that the dispute fell within the ambit of Section X."

When the grievances "were denied at Step 3," CSEA, in the words of the Appellate Division, "... filed a demand for arbitration, which is not permitted under Section X" of the relevant CBA. As the several grievances at issue were controlled by Section X of the CBA, the Appellate Division held that CSEA "failed to demonstrate that the parties in fact agreed to arbitrate these particular disputes."

Accordingly, the Appellate Division ruled that Supreme Court should have granted North Hempstead's petition to permanently stay arbitration, reversed the lower court's ruling on the law, with costs, and granted North Hempstead petition to permanently stay arbitration.

* Typically a party in a Section X procedure is able to file a CPLR Article 78 petition challenging a Section X decision and, or, penalty while a party to a Section XII procedure is able to challenge the arbitration award by filing a CPLR Article 75 petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06098.htm

ADDENDUM

This decision appears to be one of first impression.

With respect to the Appellate Division's observation that CSEA's actions in processing these charges  essentially conceded that the dispute fell under the ambit of Section X of the relevant collective bargaining agreement because it actively participated in the disciplinary appeal procedure, presumably [1] two or more of the nine charges were not served on the employee simultaneously and [2] any motion to consolidate two or more of the nine charges served on the employee was denied.

In contrast, had two or more of the charges been either served simultaneously and, or, consolidated and the penalty imposed for the simultaneously served and, or, consolidated charges exceeded a five day suspension without pay, it could be argued that by imposing such a penalty with respect to such  consolidated and, or, simultaneously served  charges the provisions of Section XII were triggered with respect to such charges.

There is some precedent for incorporating a "Section X" and a Section XII type process in a collective bargaining agreement.

Article 7 of the State's Military Law, Code of Military Justice, provides for processing charges and specification for alleged offenses or misconduct by individuals serving in New York State Militia.**

For example, §130.15 of the Military Law "Commanding officer's non-judicial punishment", provides for "commanding officer's non-judicial punishment" whereby a commanding officer may, in addition to or in lieu of admonition or reprimand, impose certain disciplinary punishments for minor offenses without the intervention of a court-martial. A person punished under authority of §130.15 who deems his or her punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. However, the individual subject to the punishment "may in the meantime be required to undergo the punishment adjudged. The officer who imposes the punishment, his successor in command, and superior authority shall have power to suspend, set aside, or remit any part or amount of the punishment and to restore all rights, privileges and property affected.

In contrast, there are several types of "judicial tribunals" - courts-martial - authorized to consider disciplinary initiated against military personnel, There shall be three kinds of courts-martial in each of the forces of the organized militia, (1) a general courts-martial: (2) a special courts-martial, and (3) a summary courts-martial. Each such courts-martial has designated jurisdictions but §130.21 of the Military Law provides that the jurisdiction of courts-martial not exclusive and provisions of Code of Military Justice conferring jurisdiction upon courts-martial shall not be construed as depriving provost courts or other military tribunals of concurrent jurisdiction in respect to offenders or offenses that by statute or by the law of war may be tried by such provost courts or other military tribunals.

The jurisdiction and authority of of courts martial are set out in Part 4 of the Code of Military Justice while §§130.59 - 130.72 of Part 9 of the Code sets out post-trial procedure and review of courts-martial.

** The Militia of the State of New York consists of the Organized Militia, the State Reserve List, the State Retired List and the Unorganized Militia. The Organized Militia is composed of the New York Army National Guard; the New York Air National Guard; the Inactive National Guard; the New York Naval Militia; the New York Guard whenever such a state force shall be duly organized, such additional forces as may be created by the governor and the Unorganized Militia.

Employer failed to prove the disciplinary charges and specifications filed against the employee by a preponderance of the credible evidence

Employer failed to prove the disciplinary charges and specifications filed against the employee by a preponderance of the credible evidence

New York Office of Administrative Trials and Hearings, OATH Index No. 181/18

A correction captain was charged with using unauthorized force against an inmate and making false statements.

The inmate claimed that he was secured and not resisting when the captain jabbed him with his baton; the captain and the escort officer contended that the inmate was unsecured and struggling with the officer when the captain jabbed him. A surveillance video of the incident was not produced at trial because the Department failed to preserve it and it was purged.

The investigator, based upon review of the video and witness statements, concluded that the inmate was not resisting and the force used by the captain was unauthorized.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls, however,  recommended dismissal of the charges, finding that the captain’s testimony was more credible than the inmate’s, which contained unsubstantiated allegations regarding his injuries and of being placed in a chokehold. Further, the ALJ found that the investigator’s report contained significant inconsistencies, inaccuracies and omissions, which called its reliability into question. Judge McGeachy-Kuls viewed the department for failing to preserve the video as a "negative inference"

The employer's failure to preserve the video tape referred to in this decision might be viewed as an aspect of "spoliation of evidence." Spoliation of evidence is the destruction or alteration of evidence that makes it unavailable for use in a judicial or quasi-judicial proceeding. Spoliation is presumed to be damaging to the spoliator's interest with respect to proving its claims or defenses when it is intentionally changed, modified, deleted or destroyed.

In Burke v Queen of Heaven R.C. Elementary Sch., 151 AD3d 1608, the Appellate Division addressed allegations of spoilation of evidence, noting that "Where the evidence is determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed [evidence] is presumed."

In contrast, in Thomas v Mt. Vernon P.D., 249 A.D.2d 483, motion to appeal denied, 94 N.Y.2d 763, the employee contended that the appointing authority  failed to preserve tape recordings of telephone calls that an employee believed would helpful to the employee's defense in a disciplinary hearing.

The Appellate Division found that the record failed to show that the loss of this tape was due to bad faith on the part of the appointing authority and that the tapes in question were routinely reused after 30 days, which was “well before any disciplinary charges were brought against the individual." The court also noted that “contrary to [the employee's] contention that the tape recording was the best evidence as to whether the subject telephone call was ever made, direct evidence on that issue was offered at the hearing from the alleged parties to the conversation."

Addressing the false statement charge brought against the correction captain, the ALJ said that the charge was based upon the captain’s report on the number of jab strikes against the inmate as “one or two” in one instance and “several” in another. At the disciplinary hearing the captain explained that he believed several to mean an unspecified number. ALJ McGeachy-Kuls recommended dismissal of the charge, finding the language to be imprecise, but not false or misleading.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-181.pdf

 

Recent decisions by Administrative Law Judges of the New York Office of Administrative Trials and Hearings

Recent decisions by Administrative Law Judges of the New York Office of Administrative Trials and Hearings

Source: OATH

Underperforming assigned tasks

OATH Index No. 2077/17

An associate retirement benefits examiner was charged with incompetence for failing to complete the required daily number of cases. ALJ Noel R. Garcia found that the examiner was required to complete an average of three cases per day, but only averaged less than one case per day over a ten month period. He concluded that the examiner was consistently unable to perform her fundamental responsibilities. 30-day suspension recommended, agency imposed a 25-day suspension

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2077.pdf

Refusal to obey a supervisor's lawful order

OATH Index No. 926/1

ALJ John B. Spooner recommended a 15-day suspension for a job opportunity specialist who was insubordinate and discourteous towards a supervisor. The employee refused to obey an order to process benefits, and he threw paper and gestured with his fist at the supervisor. This conduct caused the supervisor, who suffered from a stroke-related disability, to request early retirement to avoid similar encounters which could adversely affect her health. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-926.pdf

Delay in addressing alleged misconduct denied employee an opportunity to correct his or her conduct

OATH Index No. 1420/17

A sanitation supervisor was charged with failing to carry out his supervisory responsibilities, failing to accurately prepare, record and maintain information, and with failing to cooperate with an official inquiry. ALJ Kara J. Miller found that many of the charges involved incidents that occurred five to six years ago, which ultimately deprived the supervisor of an opportunity to correct his conduct because petitioner did not timely address the alleged misconduct. ALJ Miller sustained some of the charges, finding that the supervisor failed to accept responsibility.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1420.pdf

Determining the validity of an employee's "release of claims" against an employer

Determining the validity of an employee's "release of claims" against an employer

Charlery v New York City Department of Education, USCA, Second Circuit, Docket No. 17-1888

Jacqueline Charlery filed an action against the City of New York Department of Education, Board of Education of the City School District of the City of New York [Education] alleging claims for unlawful discrimination and retaliation in violation of the Americans with Disabilities Act and the Rehabilitation Act. Education filed a motion for judgment on the pleadings, converted by the district court, after giving notice to the parties, into a motion for summary judgment.

The court then found that Charlery had released her federal discrimination and retaliation claims in an agreement settling an earlier personal injury lawsuit against Education, granted Education's motion and entered judgment in Education's favor. Charlery appealed the district court's action.

With respect to the effect of a "release" entered into in the course of judicial proceeding, the Circuit Court, citing Livingston v Adirondack Beverage Co., 141 F.3d 434, explained that “[T]he validity of a release is a peculiarly fact-sensitive inquiry.”

Noting that in Charlery's alleged release appearing directly above the signature line is language stating “THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT”, the Circuit Court said that “[w]e employ a ‘totality of the circumstances’ test to determine whether a release of . . . claims is knowing and voluntary,” explaining that the relevant factors courts should consider include:

(1) the plaintiff’s education and business experience,

(2) the amount of time the plaintiff had possession of or access to the agreement before signing it,

(3) the role of plaintiff in deciding the terms of the agreement,

(4) the clarity of the agreement,

(5) whether the plaintiff was represented by or consulted with an attorney, and

(6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.

The Circuit Court opined that "The district court did not err when assessing these factors and concluding that Charlery’s waiver was knowing and voluntary."

Analyzing the first five factors listed above, the court noted that "Charlery, being a teacher, is a well-educated, trained professional." However, said the court, the time and role she played in deciding its terms - weigh in favor of a finding that the waiver was not knowing and voluntary. Although Charlery stated that she had read the agreement and signed the release the same day she received it and although she was represented by counsel in the settlement of the lawsuit, she played no role in negotiating the terms of the release.

However, continued the Circuit Court, the clarity of the agreement favors a finding that the waiver was knowing and voluntary as the agreement stated that Charlery was releasing Education from “any and all claims” for “any matter, cause or thing whatsoever that occurred through the date” the release was executed as Charlery was represented by counsel in that lawsuit.

The sixth factor, said the court, was inapplicable to this case because Charlery had not claimed that she was entitled by contract or law to receive "benefits" and  the issues involved alleged federal discrimination and retaliation claims.

Balancing the totality of the circumstances, the Circuit Court concluded "as the district court did," that in executing the release Charlery knowingly and voluntary waived her federal discrimination and retaliation claims and held that the district court did not err when it entered summary judgment in favor of Education on Charlery's federal claims.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/75ced8f5-4a98-4ee5-8d7f-4b505db46141/11/doc/17-1888_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/75ced8f5-4a98-4ee5-8d7f-4b505db46141/11/hilite/

An employee welfare plan administrator may be held liable for unintentional misrepresentations made concerning the plan by its non-fiduciary agent

An employee welfare plan administrator may be held liable for unintentional misrepresentations made concerning the plan by its non-fiduciary agent

In  Re Derogatis v Board Of Trustees of the Welfare Fund of The International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFLCIO, et al., USCA, 2nd Circuit, Dockets Nos. 16-977-cv, 16-3549-cv

Emily DeRogatis appealed a District Court ruling awarding summary judgment to the Welfare Fund on her claims for relief asserted under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§1001 et seq. The genesis of these actions were certain "oral miscommunications" by Plan personnel to the DeRogatises before Mr. DeRogatis' death in 2011 involving [1] the Pension Plan governing the benefits payable to Mrs. DeRogatis as a surviving spouse after the death of her husband and [2] the Welfare Plan governing Mrs. DeRogatises’ entitlement to health benefits during and after Mr. DeRogatis' lifetime.

The Circuit Court agreed with the lower court's ruling that the Pension Fund trustees correctly denied DeRogatis’s request for an augmented survivor benefit following her husband’s death because the Pension Plan’s summary plan description adequately described the eligibility requirements for the benefits in question and thereby satisfied the trustees’ fiduciary duty to provide complete and accurate information to plan participants and beneficiaries and affirmed the lower court's granting the Fund's motion  for summary judgment in Docket No. 16-3549-cv.

Significantly, however the Circuit Court rejected the District Court's holding that "a plan administrator cannot be held liable for unintentional misrepresentations made about the plan’s operation by its non-fiduciary, 'ministerial' agent and on this basis denied the claim."

As to claims involving No. 16-977-cv, noting that the District Court granted summary judgment for defendants on this claim on the same “ministerial employee” ground, the Circuit Court rejected the District Court’s conclusion that the Welfare Plan summary plan description explained clearly its participants’ options to receive post-retirement health benefits."

Rather, said the court, given the evidence that Welfare Fund agents misstated material aspects of those same benefits when communicating with the DeRogatises, the Circuit Court identified as an open question of material fact "whether the Welfare Fund trustees breached their fiduciary duty to provide plan participants with complete and accurate information about their benefits" and vacated the judgment entered in favor of the Welfare Fund defendants by the lower court with respect to No. 16-977-cv.

Althought the Circuit Court opined that Welfare Fund defendants "may yet be entitled to summary judgment if they demonstrate that DeRogatis is not entitled to any equitable relief, thereby negating the final element of DeRogatis’s §502(a)(3) claim," the District Court's judgment with respect to No. 16-977-cv was vacated and the matter remanded to the lower court for further proceedings "consistent with this opinion." 

In contrast, the same is not always the rule where the administrative error is to the benefit of the individual. 

In Morley v Arricale, 66 N.Y.2d 665, the Court of Appeals said that "Estoppel is not available against a local government unit for the purpose of ratifying an administrative error ... made without compliance with formally adopted selection standards and procedures while in Galanthay v New York State Teachers' Retirement Sys., 50 NY2d 984, the court held that the retirement system "is obligated to correct errors in the computation of retirement benefits and the recoupment of funds erroneously paid is proper." 

The DeRogatis decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d01ecfd0-e2b2-4c48-bd15-87a0220c26c1/1/doc/16-977_16-3549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d01ecfd0-e2b2-4c48-bd15-87a0220c26c1/1/hilite/

Complying with New York State mandatory sexual harassment training requirements

Complying with New York State mandatory sexual harassment training requirements*

By October 2018 employers in New York State either must have adopted the State's "Model Sexual Harassment Policy" or a similar policy and training procedure that meet or exceeds the State’s minimum standards.

In the event an employer does not adopt the State's model Sexual Harassment Policy, the policy adopted by the employer must: 

• prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• provide examples of prohibited conduct that would constitute unlawful sexual harassment
• include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws
• include a complaint form
• include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
• inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
• clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue
• clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful

In addition, every employer in New York State is required to provide employees with sexual harassment prevention training. An employer that does not use the model training developed by the Department of Labor and Division of Human Rights must ensure that the training that they use meets or exceeds the following minimum standards.

The training must:

• be interactive
• include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• include examples of conduct that would constitute unlawful sexual harassment 
• include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
• include information concerning employees’ rights of redress and all available forums for adjudicating complaints
• include information addressing conduct by supervisors and any additional responsibilities for such supervisors

Each employee must receive training on an annual basis, starting October 9, 2018. A number of organizations such as Paragon Compliance, LLC at https://www.paragoncompliancellc.com/, offer online interactive anti-sexual harassment training. 

* See §201-g of the New York State Labor Law.

Also note the following: 

1. New York City has adopted a Local Law, Local Law 96 of 2018, amending the administrative code of the City of New York in relation to anti-sexual harassment training mandating that all private employers with 15 or more employees conduct annual anti-sexual harassment training for all its employees, including supervisors and managerial employees of such employer. See New York City Administrative Code § 8-107 and New York City Charter § 815.1. ;

2. §5-336 of the General Obligations Law provides as follows: 

"Nondisclosure agreements. Notwithstanding any other law to the contrary, no employer, its officers or employees shall have the authority to include or agree to include in any settlement, agreement or other resolution of any claim, the factual foundation for which involves sexual harassment, any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant's preference. Any such term or condition must be provided to all parties, and the complainant shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the complainant's preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the complainant may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired."; and

3. §139-l of the State Finance Law provides, in pertinent part, for the inclusion of a statement on sexual harassment in bids pursuant to which:

"Every bid hereafter made to the state or any public department or agency thereof, where competitive bidding is required by statute, rule or regulation, for work or services performed or to be performed or goods sold or to be sold, shall contain the following statement subscribed by the bidder and affirmed by such bidder as true under the penalty of perjury: 'By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees. Such policy shall, at a minimum, meet the requirements of section two hundred one-g of the labor law.'"

 

Former Croton-On-Hudson village fire department treasurer pleads guilty in theft of fire department funds

Former Croton-On-Hudson village fire  department treasurer pleads guilty in theft of fire department funds

Source: Office of the State Comptroller

Comptroller Thomas P. DiNapoli, Westchester County District Attorney Anthony A. Scarpino, Jr. and Village of Croton-on-Hudson Police Chief Russel H. Harper announced that Gerald Munson, a former Croton-On-Hudson Fire Department Chief and a former Croton-On-Hudson Police Officer who most recently served as the fire department treasurer, has pleaded guilty to Grand Larceny in the Second Degree as a crime of Public Corruption, a class B felony. The charge is related to the theft of more than $300,000 from the Croton-on-Hudson Fire Department.

Munson appeared in Westchester County Court Wednesday before Judge Michael Martinelli. At the time of his plea, he also paid $124,383 in restitution, added to the $25,000 he paid upon arraignment. Munson is scheduled for sentencing Oct. 29, 2018 at which time he is expected to pay the remainder of restitution.

As fire department treasurer, Munson was responsible for maintaining the Croton-on-Hudson Fire Department bank account and financial records despite having no prior qualifications or background in accounting or financial matters. The felony complaint alleges that he used his position as treasurer to steal and conceal his theft of approximately $312,925 from the Fire Department.

The money he stole included portions of the so-called “2 Percent Money” paid annually to the Fire Department by New York State in connection with the State’s two percent tax on fire insurance. For years, Munson was able to conceal his ongoing theft by altering and manipulating the Department’s bank records. Those alterations and manipulations included his underreporting of the amount of “2 Percent Money” received by the Department in order to balance the books and hide what he stole for himself.

In February 2018, members of the Fire Department’s internal Audit Committee discovered that Munson had provided them with false 2017 bank statements. When confronted by the Audit Committee, Munson admitted he had created the false statements on his home computer; that he had stolen money from the Department’s account for his own personal use; and that he had used the Fire Department’s debit card as if it were his own.

Further investigation and analysis conducted jointly by the New York State Comptroller’s Office, the Village of Croton-on-Hudson Police Department and the Westchester County District Attorney’s Office confirmed that between January 2011 and February 2018, the defendant stole approximately $312,925 from the Fire Department. This joint investigation lead to Munson’s arrest and felony charge.

The Village of Croton-on-Hudson Police Department arrested Munson in June 2018.

“Mr. Munson stole more than $312,000 from his fire department and abused his duty to the public. As a former police officer and fire department chief, his behavior is particularly egregious," said Comptroller DiNapoli, thanking Westchester District Attorney Scarpino and the Croton-on-Hudson Police Department for working with his office to bring Mr. Munson to justice.

“Stealing public money is a crime against all of us. It is also a breach of trust that hurts a community and those dedicated to its safety,” said Westchester County District Attorney Anthony A. Scarpino, Jr. “Rooting out corruption takes thorough investigation on the part of many departments. We are proud of this collaboration between our Office, the Village of Croton-on-Hudson Police Department and the New York State Comptroller’s Office which was able to shed light on this misuse of public funds.”

“I want to thank Westchester District Attorney Anthony Scarpino and the Investigations Division Public Integrity Bureau, New York State Comptroller Thomas P. DiNapoli and the Croton Volunteer Fire Department Audit Committee for assisting the Croton Police Department in conducting this investigation. It was through this collaborative effort that justice will be served,” said Village of Croton-on-Hudson Police Chief Russel H. Harper.

Assistant District Attorney Brian Fitzgerald, Deputy Bureau Chief of the Westchester District Attorney’s Office Investigations Division Public Integrity Bureau, is prosecuting the case.

Since taking office in 2007, Comptroller DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Providing a disabled police officer with home health care pursuant to §207-c of the General Municipal Law

Providing a disabled police officer with home health care pursuant to §207-c of the General Municipal Law

Vassenelli v City of Syracuse, 2018 NY Slip Op 02957, Appellate Division, Fourth Department

This decision arose in the course of an appeal from an order of the Supreme Court that vacated a temporary restraining order [TRO] and denied the application of Nicholas L. Vassenelli to waive the requirement of an undertaking in consideration of the granting of a preliminary injunction.

Vassenelli, a City of Syracuse [City] disabled and retired police officer, sustained a spinal cord injury in 2003 and was awarded benefits pursuant to General Municipal Law §207-c.* From March 2013 to March 2016, City paid Dignity Plus, Inc. [Dignity], a home healthcare agency, assigned home health aides to provide assistance to Vassenelli in his home. While nurses also assisted home health aides as necessary, neither registered nurses nor licensed practical nurses were assigned to care Vassenelli in his home 24 hours per day.

In February 2016, Dignity notified the City that Vassenelli was in need of a heightened level of care that would approximately double the cost of Vassenelli 's services from Dignity and Dignity notified the City that it intended to terminate providing Vassenelli  with services on March 20, 2016unless the City agreed to the increased level of care and cost. The City and Dignity were unable to reach a new agreement, and Vassenelli brought this action alleging that the City wrongfully denied the payment of and obstructed him from receiving certain medical care.

Supreme Court scheduled a hearing on Vassenelli's application for a preliminary injunction and granted a TRO, requiring the City "to continue to pay and provide [Vassenelli] with 24-hour skilled nursing care at home."

At the conclusion of the hearing on a preliminary injunction, Vassenelli made an oral motion alleging that the City had failed to provide him with the nursing services required by the TRO and requesting "that the [the City therefore] be found in contempt." After the hearing, the Supreme Court granted the preliminary injunction on the condition that Vassenelli post an undertaking pursuant to CPLR 6312 and stated that the City was entitled to a hearing on the oral motion alleging contempt.

Vassenelli then filed another order to show cause seeking a waiver of the undertaking and, in accordance with the prior oral motion alleging contempt, a finding that the City  had willfully disobeyed the TRO.

The City cross-moved seeking leave to reargue Vassenelli 's prior application for a preliminary injunction, denial of that application upon reargument and vacatur of the TRO to the extent necessary. Supreme Court issued an order denying the relief sought in Vassenelli 's second order to show cause and granting that part of the City's cross-motion seeking vacatur of the TRO.

The Appellate Division affirmed the Supreme Court's action, explaining that "[i]nasmuch as [Vassenelli] expressly requested injunctive relief under CPLR Article 63 based on the alleged failure of the City to act in accordance with the General Municipal Law,** [it] conclude that the [Supreme] court properly applied CPLR §6312(b)." The Appellate Division said the lower court "did not improvidently exercise its discretion in fixing the amount of the undertaking."

Addressing Vassenelli motion to hold the City in contempt, the Appellate Division, noting that the TRO required the City to "continue to pay and provide [Vassenelli] with 24-hour skilled nursing care at home," opined that "[i]nasmuch as the City had never previously paid for or provided [Vassenelli] with 24-hour skilled nursing care in his home, that language was unclear and equivocal, and it therefore could not serve as the basis for a finding of contempt."

* Subdivision 2 of §207-c of the General Municipal Law provides that "Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member. If application for such retirement allowance or pension is not made by such policeman, application therefor may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed."

** Subdivision 1 of §207-c of the General Municipal Law, with respect to the payment of salary, wages, medical and hospital expenses of policemen with injuries or illness incurred in the performance of duties, in pertinent part, provides as follows: "1. Any ... member of a police force ... who is injured in the performance of his [or her] duties or who is taken sick as a result of the performance of his [or her] duties so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he [or she] is employed the full amount of his [or her] regular salary or wages until his [or her] disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness. Provided, however, ... the municipality shall not be liable for salary or wages payable to such policeman, or for the cost of medical treatment or hospital care furnished after such date as [certain] health authorities or physician shall certify that such injured or sick policeman has recovered and is physically able to perform his regular duties. Any injured or sick policeman who shall refuse to accept medical treatment or hospital care or shall refuse to permit medical inspections as herein authorized, including examinations pursuant to subdivision two of this section, shall be deemed to have waived his [or her] rights under this section in respect to expenses for medical treatment or hospital care rendered and for salary or wages payable after such refusal.... Notwithstanding any provision of law to the contrary, a provider of medical treatment or hospital care furnished pursuant to the provisions of this section shall not collect or attempt to collect reimbursement for such treatment or care from any such policeman ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02957.htm

Employer failed to prove the disciplinary charges and specifications filed against the employee by a preponderance of the credible evidence

Employer failed to prove the disciplinary charges and specifications filed against the employee by a preponderance of the credible evidence

New York Office of Administrative Trials and Hearings, OATH Index No. 181/18

A correction captain was charged with using unauthorized force against an inmate and making false statements.

The inmate claimed that he was secured and not resisting when the captain jabbed him with his baton; the captain and the escort officer contended that the inmate was unsecured and struggling with the officer when the captain jabbed him. A surveillance video of the incident was not produced at trial because the Department failed to preserve it and it was purged.

The investigator, based upon review of the video and witness statements, concluded that the inmate was not resisting and the force used by the captain was unauthorized.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls, however,  recommended dismissal of the charges, finding that the captain’s testimony was more credible than the inmate’s, which contained unsubstantiated allegations regarding his injuries and of being placed in a chokehold. Further, the ALJ found that the investigator’s report contained significant inconsistencies, inaccuracies and omissions, which called its reliability into question. Judge McGeachy-Kuls viewed the department for failing to preserve the video as a "negative inference"

The employer's failure to preserve the video tape referred to in this decision might be viewed as an aspect of "spoliation of evidence." Spoliation of evidence is the destruction or alteration of evidence that makes it unavailable for use in a judicial or quasi-judicial proceeding. Spoliation is presumed to be damaging to the spoliator's interest with respect to proving its claims or defenses when it is intentionally changed, modified, deleted or destroyed.

In Burke v Queen of Heaven R.C. Elementary Sch., 151 AD3d 1608, the Appellate Division addressed allegations of spoilation of evidence, noting that "Where the evidence is determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed [evidence] is presumed."

In contrast, in Thomas v Mt. Vernon P.D., 249 A.D.2d 483, motion to appeal denied, 94 N.Y.2d 763, the employee contended that the appointing authority  failed to preserve tape recordings of telephone calls that an employee believed would helpful to the employee's defense in a disciplinary hearing.

The Appellate Division found that the record failed to show that the loss of this tape was due to bad faith on the part of the appointing authority and that the tapes in question were routinely reused after 30 days, which was “well before any disciplinary charges were brought against the individual." The court also noted that “contrary to [the employee's] contention that the tape recording was the best evidence as to whether the subject telephone call was ever made, direct evidence on that issue was offered at the hearing from the alleged parties to the conversation."

Addressing the false statement charge brought against the correction captain, the ALJ said that the charge was based upon the captain’s report on the number of jab strikes against the inmate as “one or two” in one instance and “several” in another. At the disciplinary hearing the captain explained that he believed several to mean an unspecified number. ALJ McGeachy-Kuls recommended dismissal of the charge, finding the language to be imprecise, but not false or misleading.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-181.pdf

A finding of probable cause of unlawful discrimination after an administrative investigation requires some evidence of unlawful acts based on the complainant's version of the event[s]

A finding of probable cause of unlawful discrimination after an administrative investigation requires some evidence of unlawful acts based on the complainant's version of the event[s]
Sullivan v New York State Div. of Human Rights, 2018 NY Slip Op 02947, Appellate Division, Fourth Department 

Citing Matter of Mambretti v New York State Div. of Human Rights, 129 AD3d 1696, the Appellate Division addressed the issue of "probable cause" raised in this appeal. The court said the "[P]robable cause exists only when, after giving full credence to complainant's version of the events, there is some evidence of unlawful discrimination."

Following her involuntary transfer from a high school to an elementary school, Margaret Sullivan filed a complaint alleging unlawful discrimination with New York State Division of Human Rights [SDHR] the  pursuant to Executive Law §298, New York State's Human Rights Law.  SDHR, based on it investigation of Sullivan's complaint,  found that there was no probable cause to believe Sullivan's transfer was the result of unlawful discrimination on the part of Orchard Park Central School District [School District] based upon Sullivan's age, disability or gender in effecting the transfer of her work site. 

In additions Sullivan contended that the School District retaliated against her when she complained of those alleged unlawful discriminatory practices, but again SDHR, based on its investigation, found that there was no probable cause to support that allegation.

Sullivan's challenge to SDHR's determination by bringing an action in Supreme Court. The court sustained SDHR's determination and Sullivan appealed that ruling to the Appellate Division.

The Appellate Division affirmed the lower court's ruling, explaining that where, as here, SDHR renders a determination of no probable cause without holding an administrative hearing and relies only on the finding of investigation, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis."

Further, explained the court, "probable cause" is demonstrated only when, after giving full credence to a complainant's version of the events, "there is some evidence of unlawful discrimination."

Accepting Sullivan's version of the events underlying her complaint as true, the Appellate Division said that it concluded that "there is no evidence of unlawful discrimination based upon age or gender arising from the District's involuntary transfer of petitioner from the high school to an elementary school."   

Although the court noted that the transfer was "personally objectionable" to Sullivan, the Appellate Division held that the transfer did not constitute an adverse employment action.

Further, said the Appellate Division, "even if transfer was an adverse employment action," it found that "a rational basis supports SDHR's conclusion that the transfer did not occur under circumstances giving rise to an inference of discrimination based on age or gender."

In addition, the Appellate Division noted that SDHR's determination that there was no probable cause to believe that the District failed to provide assistance or reasonable accommodations for Sullivan's alleged disabilities as Sullivan failed to allege that she requested assistance that the District refused to provide, or proposed reasonable accommodations that the School District refused to provide.

In short, the court held that Sullivan "failed to identify any adverse employment action taken by the [School District]" and thus a rational basis supports SDHR's conclusion that there was no probable cause to believe that the District engaged in unlawful discrimination or in unlawful acts of retaliation. 

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2018/2018_02947.htm