Standards of evidence required to support termination of employment decisions vary

Among the issues addressed by the U.S. Circuit Court of Appeals, Second Circuit, in this action was the standard of evidence that must be met to support the termination of a public employee in a disciplinary action. 

A §75 Disciplinary Hearing Officer found that “substantial evidence” supported several of the charges filed against the employee [Complainant] and recommended that he be demoted to a lower grade position. The then Assistant City Manager adopted the Hearing Officer’s findings of fact but decided to terminate rather than demote the Complainant.

The Complainant then filed an Article 78 petition in New York State Supreme Court seeking reinstatement to his former position and back pay contending that New York statutory law and the Due Process Clause of the Fourteenth Amendment both require that for-cause termination decisions be based upon a preponderance of the evidence and not substantial evidence.

In civil trials the preponderance standard is met when the party with the burden of proof, in this situation the charging party, convinces the hearing officer that the evidence it presented has a greater than 50% chance that it is true.

In contrast, substantial evidence is “more than a mere scintilla" of evidence. As the U.S. Supreme Court explained in Richardson v. Perales, 402 U.S. 389, substantial evidence is  such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”*

Ultimately the Appellate Division rejected Complainant's challenge, concluding that “due process requires application of the preponderance of the evidence standard only when the penalty of dismissal is accompanied by some added stigma,” which the court found was not present in this case.**

After the Appellate Division issued its decision, the parties cross-moved for summary judgment on the due process claims. The federal district court granted summary judgment to the employer, concluding that Complainant was collaterally estopped from re-litigating his due process claims and that, in the alternative, he was afforded adequate process.

* For a comprehensive analysis see Standards of Appellate Review in the Federal Circuit: Substance and Semantics by Kevin Casey, Jade Camara and Nancy Wright, posted on the Internet at:  https://www.slideshare.net/umesh1989/standards-of-appellate-review-in-the-federal-circuit-substance-and-semantics-83pages.

** Marentette v. City of Canandaigua, 159 AD3d 1410.

The Circuit Court's decision is posted on the Internet at:

https://www.courtlistener.com/opinion/4723922/marentette-v-city-of-canandaigua/

Audits of certain State agencies, municipalities and school districts released by the New York State Comptroller during the week ending April 18, 2020

Click on the text highlighted in color to access the full report.

Office of General Services (OGS): Compliance With Executive Order 95 (Open Data) (2019-S-39)

EO 95, issued in March 2013, established an Open Data Website for the collection and public dissemination of publishable state data maintained by state entities. Auditors found OGS has taken steps to meet the requirements of EO 95; however, certain aspects of the order have not been fully addressed. There is limited assurance OGS has created a complete catalogue of the publishable data that it maintains or accompanying schedules for making that data public. OGS has not incorporated compliance with EO 95 into its core business functions. For instance, there are no processes to identify new high-value data sets to publish on Open Data and OGS has not consistently updated data already posted.

Department of State: Compliance With Executive Order 95 (Open Data) (2019-S-16)

EO 95, issued in March 2013, established an Open Data Website for the collection and public dissemination of publishable state data maintained by covered state entities. Auditors found the department has generally complied with the requirements of EO 95 and continues to identify new data sets to add to Open Data. However, the department did not identify the total population of publishable data that it maintains so there is limited assurance it provided a complete catalogue or accompanying schedules for making the data public, as required. 

Higher Education Services Corporation (HESC): Oversight of the STEM Incentive Program (Follow-Up) (2019-F-56)

An audit issued in November 2018, found that HESC had taken steps to implement the structure necessary to administer the Science, Technology, Engineering, and Mathematics (STEM) Incentive Program. However, auditors identified several areas for improvement. In a follow-up, auditors found HESC made progress in correcting the problems identified in the initial audit report.

Homes and Community Renewal (HCR): Low-Income Housing Fund Program (Follow-Up) (2019-F-44)

A report issued in August 2014 found that a significant number of Low-Income Housing Trust Fund Program projects were being delayed by at least six months due to, among other issues, questionable award decisions, lax monitoring or enforcement of expectations, and delays in key approvals. The initial audit also found that the program did not consistently adhere to its own policies regarding the project award process. In a follow-up, auditors found HCR officials made some progress in addressing the problems identified in the initial audit. 

Akron Fire Department – Financial Activities (Erie County)

Auditors determined that 101 credit card purchases totaling $22,100 did not have original receipts attached to the monthly statement. In July 2019, Richard A. Lobur, a fire department member, admitted to taking almost $40,000 in grant money to use for personal expenses, pay off credit card debt and make loan payments. He pleaded guilty to theft of government money and agreed to pay $39,182.92 in restitution. The matter was referred to the Erie County District Attorney’s Officer and resulted in the arrest of three other individuals. In December 2019, one individual pleaded guilty to petit larceny while the other two pleaded to a non-criminal disposition. All three were ordered to pay restitution.

Town of Carmel – Procurement (Putnam County)

The board-adopted procurement policy does not provide a clear method for procuring professional services. Auditors found the town procured professional services from 16 providers with payments totaling $870,909 without competitive methods. In addition, the town did not obtain the required number of quotes for 34 purchases totaling $59,426; a proposal for one purchase totaling $13,404 or competitively bid three purchases totaling $911,044.

Town of Caroline – Town Clerk and Credit Card Purchases (Tompkins County)

The town clerk did not deposit or remit all tax collections to the supervisor and county treasurer in a timely manner. In addition, the town clerk did not reconcile her bank account or identify errors such as duplicate tax payments received from taxpayers. Auditors found that the town clerk did not report or remit fees in a timely manner for 2018 and 2019. Auditors also determined that the board approved inappropriate or unsupported credit card charges totaling $5,759.

Town of Richford – Town Clerk/Tax Collector (Tioga County)

Real property taxes totaling $1,443,876 and clerk fees totaling $2,604 were not remitted to the supervisor or treasurer in a timely manner. Auditors found 45 real property tax receipts totaling $690,961 were deposited from two to 60 days after receipt instead of within 24 hours. In addition, there were five instances totaling $2,089 where clerk fees were not deposited within three days of when collections accumulated to more than $250.

Cuba-Rushford Central School District – Financial Management (Allegany County and Cattaraugus County)
The district’s financial reserve plan states that the district will reduce surplus fund balance as recommended by Comptroller DiNapoli’s previous report and the board’s fund balance policy states that it will strive to ensure that surplus fund balance does not exceed 4 percent. Surplus fund balance continued to consistently exceed the 4 percent limit by an annual average of 9 percentage points, or approximately $2 million. The board and district officials consistently overestimated appropriations and appropriated fund balance for planned operating deficits that never occurred.

Monticello Central School District – Fund Balance Management (Sullivan County)
The Board overestimated appropriations from 2016-17 through 2018-19, helping result in $12.1 million in appropriated fund balance not being used to finance operations. In addition, the district’s recalculated surplus fund balance exceeded the statutory limit each of the last three fiscal years by 12.3 to 16.3 percentage points. As of June 30, 2019, the District overfunded one reserve by $820,000.

South Colonie Central School District – Allocation of Personnel Costs (Albany County)
District officials accurately allocated personnel costs between district and state grant activities Auditors found total personnel costs of $745,262, of which $358,384 was funded using general fund money, were adequately supported and properly allocated. Except for minor discrepancies, which auditors discussed with district officials, teacher center personnel costs of $434,790 were supported, properly allocated and accurately reported as teacher center costs.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 170,000 contracts, billions in state payments and public authority data.

Dynamic Statewide COVID-19 Map and related data posted

HARRIS BEACH PLLC, reports that as a response to a recent post introducing the Harris Beach COVID-19 response page, Harvey Randall shared a New York State COVID-19 map, updated regularly, which includes a host of information related to the COVID-19 situation in New York State.

The map is maintained by epidemiologist Isaac H. Michaels.

The disability findings of the Social Security Administration does not trump the Retirement System's Medical Board's disability determination

A teacher [Petitioner] filed an Article 78 challenging the decision of the Medical Board of the Teachers' Retirement System of the City of New York [Board] denying his application for accidental disability retirement benefits.

The Appellate Division sustained the Board's finding that Petitioner was not disabled was not arbitrary and capricious, and was supported by some credible evidence. The court noted also that the Board had "examined and interviewed Petitioner."

In response to the Petitioner's claim that the Medical Board ignored his medical history, the Appellate Division explained that "resolution of conflicting evidence was for the Medical Board to resolve."

Further, said the court, the findings of the Social Security Administration with respect to Petitioner's alleged disability "was not dispositive of the Medical Board's disability determination," citing  Barden v New York City Employees' Retirement Sys., 291 AD2d 215 nor did the findings of the medical arbitrator, who examined Petitioner after the Medical Board made its determination, warrant Article 78 relief.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01256.htm

A statutory, constitutional or public policy prohibition bars the arbitration of a provision set out in a collective bargaining agreement

As the Court of Appeals held in Matter of City of Johnstown [Johnstown Police Benevolent Assn., 99 NY2d 273,  a court undertakes a two-prong analysis in determining whether a grievance between a public employer and an employer organization representing employee in a collective bargaining unit is arbitrable.

The first prong is the "may-they-arbitrate" prong where the court must determine if "there is any statutory, constitutional or public policy prohibition against arbitration."

If the disputed issue survives this first test, the court must then consider the second prong of the test and determine if the parties did, in fact, "agree-to-arbitrate" the particular disputed issue.

In this action the employer contended that arbitration of the dispute was prohibited "as the underlying [issue] was a job security provision* such that arbitration would violate public policy."

Noting that there are some exceptions to the "violation of public policy" prohibition, the Appellate Division, citing Burke v Bowen, 40 NY2d 264, opined that a job security provision "does not violate public policy and therefore is valid and enforceable, but only if the provision is 'explicit,' the CBA [collective bargaining agreement] extends for a 'reasonable period of time,' and the 'CBA was not negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power.'" The court further explained that the "requirement that 'job security' clauses meet this stringent test derives from the notion that before a municipality bargains away its right to eliminate positions ..., the parties must explicitly agree that the municipality is doing so."

Deciding that the plain language of the disputed language in the CBA "merely provides for minimum staffing on particular shifts," the Appellate Division said it agreed with Supreme Court that this provision was not a job security provision and "the stringent test in Johnson City Professional Firefighters Local 921 (Village of Johnson City), 18 NY3d at 32, does not apply" in this instance.

The Appellate Division found that the disputed provision, although it does not expressly mention safety, "is nonetheless more akin to a condition of employment, such as the safety of officers, than to a job security provision."

Finding no statutory, constitutional or public policy prohibition against arbitration, the Appellate Division said that as "the parties have used language that clearly manifests an intent to exclude" this subject from arbitration, this grievance falls "within the scope of [the CBA's] broad arbitration clause" and Supreme Court properly denied Employer's petition seeking a stay of arbitration."

* A job security provision insures that, at least for the duration of the agreement, the employee "need not fear being put out of a job"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02218.htm

Workers’ Compensation Board adds COVID-19 Virus as a serious health condition for the purposes of Paid Family Leave

The Workers’ Compensation Board added COVID-19 Virus as a serious health condition for the purposes of Paid Family Leave by means of its "Emergency Rule Making" powers.

The Emergency Rule, I.D. No. WCB-15-20-00007-E [Filing No. 250] was filed on March 27, 2020 and states that this amendment is adopted as an emergency measure because the Board wants to ensure there are not unnecessary disputes regarding Paid Family Leave due to the outbreak of COVID-19 by clarifying that COVID-19 should be considered an serious health condition for the purposes of family leave. 

The text of rule and any required statements and analyses may be obtained from Heather MacMaster, Workers’ Compensation Board, 328 State Street, Schenectady, NY 12305, (518) 486-9564, email: regulations@wcb.ny.gov. 

The emergency adoption took effect immediately upon filing and provides benefits for employees who are caring for their family member.