Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Smith v Commissioner of Labor, 2012 NY Slip Op 05887, Appellate Division, Third Department

An applicant for unemployment insurance benefits received two notices of rejecting his claim for benefits.  

In response to his filing a request for an administrative hearing challenging the denial of his claim, an Administrative Law Judge ruled that the request for the hearing was untimely filed. The Unemployment Insurance Appeals Board affirmed the ALJ’s decision and the applicant challenged the Board's ruling.

The Appellate Division sustained the Board’s ruling, noting that §620(1)(a) of the Labor Law provides that in the event an applicant for unemployment insurance benefits is dissatisfied with an initial determination, he or she must request a hearing within 30 days unless physical or mental incapacity prevents him or her from doing so.

In this instance the applicant admitted that he had received the notice of determination shortly after it was mailed and was aware of the 30-day time limit for requesting a hearing.

Noting that the applicant had testified that he failed to request a hearing within 30 days “because he thought he needed to wait until his summer employment ended to do so, and he stated that he received advice to that effect from Department of Labor employees following the initial denial of his application for benefits,” the Appellate Division held that “neither claimant's confusion regarding the two notices … nor the erroneous advice from the Department … provides a basis for us to disturb the Board's decision.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05887.htm

Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings

Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings
Katz v Board of Educ. of City School Dist. of City of N.Y., 2008 NY Slip Op 31935(U),  Supreme Court, New York County, Judge: Shirley Werner Kornreich [Not selected for publication in the Official Reports]

The New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher. The “notice” was sent by certified mail, return receipt requested and by regular mail. The certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. BOE subsequently sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail. Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentiaand the teacher was found guilty of the charges and terminated. A letter advising the teacher of her dismissal was mailed to the same address used to send all of the previous letters to the teacher who subsequently acknowledges receiving it and filed a claim with BOE seeking reinstatement retroactive to the date of her termination, along with restoration of benefits.

When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.” Additionally, said the court, the teacher “denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up [and] if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.”

Judge Kornreich said that “The standard in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.”

The court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent. Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges.

In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Judge Kornreich decided that it was not arbitrary or capricious for BOE to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation and dismissed her petition.

Authority to issue Uniform Traffic Tickets

Authority to issue Uniform Traffic Tickets

Informal Opinions of the Attorney General: Informal Opinion 2012-07

The Attorney General advised the Village of Old Field that the Village's park rangers may issue uniform traffic tickets for violations of the Vehicle and Traffic Law within village parks. The park rangers, however, may not issue tickets for violations they observe on public streets while traveling between parks.

The decision is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2012-7%20pw.pdf

Collective Bargaining Agreement may provide for an election of remedies with respect to Title VII complaints

Collective Bargaining Agreement may provide for an election of remedies with respect to Title VII complaints
Leonyer M. Richardson, v Commission on Human Rights, 532 F.3d 114

Does Title VII of the Civil Rights Act of 1964 bar the inclusion of an election-of-remedies provision in a collective bargaining agreement?

EEOC contended that it does; the Connecticut Commission on Human Rights and Opportunities [CCHRO] – a defendant in this action, argued that Title VII does not prohibit such a provision to be negotiated and included in a collective bargaining agreement.

The Circuit Court decided that the law governing contracts that provide for the release or waive Title VII rights is independent of the law governing employer actions taken in retaliation for, and intended to deter, employee opposition to unlawful employment practices, including the filing of charges with the EEOC or its state counterpart.

Although there are limits regarding what a union may agree to in the course of collective bargaining, in this instance the court decided that Richardson’s union “has not transgressed them by contracting to limit an employee’s legal recourse under certain circumstances.*

The collective bargaining agreement in question merely provided that an aggrieved employee could either arbitrates her grievance or file a charge with the CCHRO.

Accordingly, the Circuit Court ruled that the Union had not discriminated against Richardson by its adhering to the election-of-remedies provision after she chose to file a charge with the CCHRO as the collective bargaining agreement “does not constitute a waiver of any statutory rights” and dismissed her appeal.

The full text of the decision is posted on the Internet at:

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTA0NzQtY3Zfb3BuLnBkZg==/06-0474-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irld5a2/10/hilite

* New York courts have held that an employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual [Matter of Hickey v New York City Dept. of Education, 17 NY3d 729. See, also, Antinore v State, 40 NY2d 6].

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Office of the State Comptroller - Issued during the week of August 6 - 12, 2012

DiNapoli and HUD Uncover Financial Abuses by Former Troy Housing Authority Officials

The retired comptroller of the Troy Housing Authority took home $207,000 in inappropriate payments while collecting a public pension in apparent violation of state law, among other financial problems, according to a reportreleased Tuesday by State Comptroller Thomas P. DiNapoli and the U.S. Department of Housing and Urban Development’s Office of Inspector General. Video is also available here.

DiNapoli and Project Heart Announce Joint Effort to Reunite Holocaust Survivors and Heirs with Unclaimed Funds

New York State Comptroller Thomas P. DiNapoli and Project HEART (Holocaust Era Asset Restitution Taskforce) today announced a partnership to reunite Holocaust survivors and their heirs with unclaimed funds that are rightfully theirs.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed an audit of the New Roots Charter School.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits: the Village of Bergen; the Big Flats Fire District No. 1; the Caneadea Fire District; the Village of Canton; the Town of Champlain; the City of Rochester; and, the Spencerport Volunteer Fireman’s Association, Inc.

Administrative disciplinary action involving charges based on employee’s being convicted of crime

Administrative disciplinary action involving charges based on employee’s being convicted of crime

NYC Department of Sanitation v Anonymous, OATH Index No. 1159//12

A New York City sanitation police officer was served with disciplinary charges after he was convicted of possession of cocaine in federal court.

New York City’s Executive Order 16 of 1978 provides for the dismissal of any City employee who is convicted of a crime relating to their employment, “involving moral turpitude or which bears upon their fitness to perform their duties … absent compelling mitigating circumstances.” 

In defending himself in the administrative disciplinary proceeding the employee argued that his experience as a first responder on September 11 had left him with PTSD, causing depression and substance abuse. 

OATH Administrative Law Judge Ingrid M. Addison found that the individual’s conviction related to his employment as a law enforcement officer and bore upon his fitness to perform the duties of that job.  As to “mitigating circumstances” that might be a factor with respect to his misconduct, Judge Addison found his claims “insufficiently compelling” and recommended that respondent be terminated from his employment.

N.B. Public Officers Law §30.1.e provides, in pertinent part, that a public office shall become vacant “by operation of law” upon the incumbent’s “conviction of a felony, or a crime involving a violation of his oath of office…. “ A police officer is a “public officer” within the meaning of POL §30.1.e.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1159.pdf