Political activities and public employment

Political activities and public employment

Davis v City of New York, USDC, SDNY, Judge Scheindlin

Election years often produce cases involving a public employee in the classified service seeking election to political office and the impact of federal and state law upon such efforts. Often the issue concerns the individual's right to continue as an employee while campaigning for such office. In the Davis case, the court also considered the liability of the employer that violates an individual's rights in such a situation.

One election-related statute is the federal Hatch Act [5 USC 1501]. The Hatch Act attempts to insulate the civil service from the influence of partisan politics. The Act requires, among other things, that state and municipal employees responsible for administering federal funds abstain from participating in partisan political activities, including running for office in a partisan election.

How is a partisan election defined? An election is partisan where the candidate is running as a representative of a political party whose presidential candidate received electoral votes at the preceding presidential election.

The Davis case involved a number of state and federal issues concerning a public employee running for elective office.

James Davis, a New York City police officer was on the 1998 Liberal Party "petition slate" for the upcoming November election. He "conducted a minimal campaign." On November 3, 1998, his name was listed on the election ballot as the Liberal Party's nominee for Member of the State Assembly. The next day the Department dismissed him, stating that it had terminated Davis "for violating a law that prohibits police officers from accepting a political party's nomination without resigning their commission." citing Chapter 49, Section 1129 of the New York City Charter.*

Significantly, the Police Department did not cite the Hatch Act in its defense, presumably because Davis was not involved in the administration of federal funds.

In another case involving the Hatch Act, the individual seeking elective office was a postal worker. In Merle v United States, USDC DNJ, Civ. 02-3469, a federal district court judge upheld the Act's prohibition on federal workers continuing in service while running for elective officer. US District Court Judge Joseph Irenas ruled that the Hatch Act did "not prevent ... participation as a candidate ... but instead constitutes a valid attempt on the part of Congress to insulate public employees from partisan political influence."

Judge Irenas held that the Hatch Act did not require Merle to quit his job to appear on the ballot but merely forces him to choose between his job and elective office. According to the ruling, the individual "need not even resign from his position in order to appear on the ballot, as the burden is upon the government to respond to his candidacy with a sanction for removal or suspension."

In Davis' case, the New York City Police Department "responded to his candidacy" by removing him from his position pursuant to the mandates of the City's Charter.

Davis subsequently asked to be reinstated to his former position because, as it turned out, he was never actually a bona fide nominee for elective office. Why not" Because he had not filed the required certificate accepting the nomination.

The Board of Elections confirmed this fact by writing the Department that it had included Davis' name on the ballot in error. Still the Department refused to reinstate Davis and he sued. About a year later New York State Supreme Court Justice Barbara R. Kapnick ruled that Davis had not violated Section 1129 and "ordered that the Police Department reinstate Davis as a police office forthwith with back pay."

Davis, however, continued to press his federal civil rights law suit, claiming that the Department's initial refusal to reinstate him was a violation of his rights under 42 USC 1983 and, in addition, had retaliated against him by refusing to reinstate him when it learned of his "non-candidacy" in violation of 42 USC 1983 because:

1. He had challenged the Democratic incumbent, Clarence Norman, in a primary election the summer of 1998;

2. He had criticizing the Police Department for police brutality over the years; and

3. He had spoke out on issues of public concern.

Although Davis won a $100,000 jury verdict for damages, Federal District Court Judge Scheindlin set it aside. Judge Scheindlin said that although Davis showed that his constitutional rights were, indeed, violated, he did not prove the second element required for him to prevail: that the unconstitutional act was the result of a "policy" or "custom" of retaliation in the agency.

Judge Scheindlin explained that "municipalities such as the City of New York may only be held liable when the city itself deprives an individual of a constitutional right." Thus, ruled the court, in order for an individual deprived of a constitutional right to have recourse against a municipality under 42 USC 1983, he or she must show that he or she was harmed by a municipal "policy" or "custom," citing Monell v New York City Department of Social Services, 436 US 658. Judge Scheindlin also noted that "[a] municipality may not be held vicariously liable under Section 1983 on the basis of its employer-employee relationship with the employee" because "a municipality may not be held liable on a theory of respondeat superior."

* Section 1129 provides that "Any ... member of the police force ... who shall during his or her term of office be nominated for any office elective by the people ... and shall not, within ten days succeeding same, decline the said nomination, shall be deemed thereby to have resigned his or her commission and to have vacated his or her office

PERB rejects improper practice charge filed by a non-public employee

PERB rejects improper practice charge filed by a non-public employee

Nagy and SUNY at Buffalo, 35 PERB 3025.

PERB declined to assume jurisdiction to consider an individual's improper practice charge alleging the employer violated Sections 209-a.1(a) and 209-a.1(c) of the Civil Service Law because the individual was not a public employee within the meaning of the Taylor Law, observing that the individual was not on a state payroll and had neither paid union dues nor paid an agency fee to the collective bargaining unit's representative. Nagy and SUNY at Buffalo, 35 PERB 3025.

Similarly, in Arce and NYC Board of Education, 35 PERB 4576, a PERB Administrative Law Judge determined that SEIU Local 74 did not violate its duty of fair representation by failing to process a grievance filed by an individual independently hired by, and who worked directly for, a public school custodian because the individual was not a public employee as defined by the Taylor Law and thus he was not in the negotiating unit.

Challenging the employer’s discontinuing §207-c General Municipal Law benefits

Challenging the employer’s discontinuing §207-c General Municipal Law benefits

Matter of Zembiec v County of Monroe, 2011 NY Slip Op 06757, Appellate Division, Fourth Department

Thomas C. Zembiec asked Supreme Court to annul the Monroe County Sheriff's Department decision to discontinue his General Municipal Law §207-c for the period from August 12, 2008 through June 15, 2009 after if it determined he was not entitled to such disability benefits. In addition, Zembiec challenged the Department’s suspending his regular salary from June 15, 2009 through March 25, 2010. The Department argued that Zembiec was not entitled to such payments because he failed to report for his light duty assignment when directed to do so.

The Appellate Division summarized the benefits provided by General Municipal Law §207-c to law enforcement personnel injured in the performance of their official duties as follows: Such personnel injured in the performance of his or her duties or who has become ill as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment is entitled to specified benefits. The statute does not require that a qualified employee demonstrate that his or her disability "is related in a substantial degree" to the employee's job duties and the individual need only prove a direct causal relationship between job duties and the resulting illness or injury to qualify for such benefits.

The Court held that Supreme Court “properly concluded that the denial of [§207-c] benefits for the period from August 12, 2008 to June 15, 2009 was arbitrary and capricious” as Zembiec had established “the requisite direct causal relationship between his job duties and his resulting illness ….”

On June 15, 2009 Zembiec, however, failed to report for a modified duty assignment. As §207-c(3) provides for termination of benefits upon an employee's refusal to return to work to perform a light duty assignment "consistent with his status as [an officer]," the Appellate Division ruled that Supreme Court was incorrect in granting that portion of Zembiec’s petition seeking his “regular pay” for the period June 15, 2009 through March 25, 2010, finding that Zembiec did not have any right to his regular pay after he failed to report to work to perform his light duty assignment.

The Appellate Division contrasted an individual’s right to §207-c payments in cases where the individual “avails himself [or herself] of due process protections by challenging the medical examiner's determination [that he or she is qualified for light duty or is qualified to resume his or her regular assignments] as such a challenge cannot be equated with a refusal to return to duty" to a refusal to report to work, either light duty or regular duty, after he or she is unsuccessful in challenging the medical examiner’s determination.

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Practice and Procedure before the New York City Office of Administrative Tribunals and Hearings

Practice and Procedure before the New York City Office of Administrative Tribunals and Hearings 

OATH Index No. 2526/11; OATH Index No. 2047/11

Pre-trial motions to dismiss are disfavored in practice at OATH and have only been granted in the clearest cases of failure by petitioner to state a viable claim. The burden is particularly high in employee disciplinary proceedings where the OATH Administrative Law Judge makes recommended findings that are submitted to the referring agency for final action. ALJ Alessandra F. Zorgniotti denied in part without prejudice an employee’s pre-trial motion to dismiss disciplinary charges as pre-mature where the employee stated in her reply papers that there were issues of fact to be determined at trial. The motion was also denied in part based on a finding that OATH has jurisdiction to hear a disciplinary case referred by the Department of Correction. In addition, the ALJ granted in part and denied in part without prejudice a request for subpoenas for witnesses, some of whom would provide cumulative and irrelevant testimony [see Dep’t of Correction v. LaSonde (in PDF), OATH Index No. 2526/11]. 

Similarly, OATH ALJ Faye Lewis denied a pre-trial motion to dismiss disciplinary charges brought against a marine engineer on the ground that the charging agency failed to comply with its own rule requiring a disciplinary complaint to be accompanied by a sworn statement from the complainant. Pleadings are liberally construed in administrative practice. Technical defects in pleading are deemed harmless absent a showing of prejudice, which was not made out here. Further, respondent’s objection was untimely as it was not made until more than a year after he received the charges. ALJ Lewis also denied respondent’s motion to stay his disciplinary hearing indefinitely until a federal suit he filed against the charging agency is decided [see Fire Dep’t v. Domini (in PDF), OATH Index No. 2047/11].

Rejecting a hearing officer’s findings

Rejecting a hearing officer’s findings

Perfetto v Erie Co. Water Auth., 298 A.D.2d 932.

It is well settled that an appointing authority may reject a Civil Service Law Section 75 hearing officer's finding of fact and penalty recommendation provided that the appointing authority's determination is supported by substantial evidence in the record and that the penalty imposed does not "shock one's sense of fairness."

The Perfetto case demonstrates how important it is for the appointing authority to specify the reasons for its rejection of all or a portion of the hearing officer's findings and recommendation.

Louis Perfetto, an employee of the Erie County Water Authority, was charged with three acts of misconduct, all related to absences from work. The first two charges concerned an absence in November of 2000 and Perfetto's alleged failure to provide proper documentation regarding that absence. Because the parties had entered into this settlement agreement concerning the first two charges in December 2000, the Hearing Officer ruled that this settlement precluded considering these two charges in the then current disciplinary action.

The third charge related to Perfetto's alleged misuse of sick time on March 27, 2001. While Perfetto claimed he was sick on March 27, there was evidence in the record establishing that Perfetto had left his home that morning to have a document notarized. The Hearing Officer concluded that the fact that Perfetto left his home on that date did not, in and of itself, "belie [his] claim that he was sick."

The appointing authority, however, rejected the Hearing Officer's findings of fact and recommendation. Although the appointing authority stated that Perfetto's testimony was "disproved by independent sources" in its decision, it failed to cite anything in the record to support this determination.

Insofar as the first two charges were concerned, the Court agreed with the hearing officer, concluding that any consideration of those charges by the appointing authority constituted an error of law because of a binding settlement had previously been reached regarding the acts underlying the charges.

As to the third charge, the court concluded that the employer's determination was arbitrary and capricious to the extent that the appointing authority failed to set forth any findings of fact supported by substantial evidence in the record to bolster its conclusion. Perfetto was awarded his job back, along with lost wages and benefits.

Substantial evidence is not a difficult burden to meet. The Appellate Division has defined substantial evidence as enough evidence that a” reasonable mind may accept as adequate to support a conclusion."

This definition of substantial evidence allows for different conclusions based on the same evidence, as long as a reasonable person could arrive at same conclusion that the finder of fact did.

Nevertheless, it is vital that in any final decision, whether it is in agreement with the hearing officer's findings of fact or not, that the appointing authority spell out its reasoning and in the event it rejects any or all of the hearing officer's findings, that specific reasons for the rejection be given and that such reasons be supported by substantial evidence in the record. To do otherwise, as the Perfetto case demonstrates, could be fatal to the appointing authority's determination.

In contrast, the individual's entire personnel record, including past disciplinary actions that "were settled" may be considered by the hearing officer in the context of a disciplinary action for the purpose of setting an appropriate penalty provided the individual is advised that his or her personnel records will be so considered and is given an opportunity to rebut any information in that file.

Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

 Mack v The Port Authority of New York and New Jersey, USDC, SDNY, Judge Swan

One of the issues considered by Judge Swan in the Mack case was Michael Mack's allegation that he was subjected to disparate treatment in violation of Title VII because he was an African-American. Mack alleged that he was required to submit to an involuntary random test for illegal drugs because of his color. Mack also claimed that after he submitted to a random drug test and tested positive for cocaine, the Authority told him that he would be terminated.

According to the decision, Mack was employed as a truck driver by the Authority and was required to posses a valid commercial driver's license in order to perform the duties of his position. Authority employees such as Mack are required to submit to random drug tests under the federal Omnibus Transportation Testing Act of 1991.

On July 6, 1996, Mack was tested for drugs and tested positive for cocaine. Mack and the Authority settled the matter by entering into an agreement that required Mack to submit to random drug testing for a period of sixty months and to enter a drug rehabilitation program. The agreement also provided that if Mack tested positive again, he would be subject to "administrative action."

When Mack again tested positive for cocaine on November 10, 1997, the Authority told him that his employment would be terminated effective November 17, 1997, because of the positive drug test.

Mack's union negotiated a second "disciplinary waiver agreement" and Mack agreed that he would be subject to random drug testing for sixty months and that he would cooperate with the Port Authority's Office of Medical Services. The agreement also stated that Mack's failure to comply with these obligations could result in his termination and that one positive test result would result in his termination.

On May 6, 1998, Mack was asked to submit a urine sample to the Medical Services nurse. When the sample provided proved "unusable," he was asked to supply a second sample. Mack refused to do so and, as a result of this refusal, he was terminated.

Judge Swan granted the Authority's motion to dismiss the complaint, commenting that Mack failed to allege facts sufficient for the court to find that it was the custom or practice of the Port Authority to treat him or other non-white employees differently from non-black employees when imposing sanctions for failure to pass a urine test for illegal drugs.

According to the ruling, Mack presented only conclusory allegations that "race was the determining factor in [his] termination" and thus failed to establish a prima facie case of "wrongful termination."

Arbitrator’s award entitled to great weight by is not preclusive

Arbitrator’s award entitled to great weight by is not preclusive

Pender v District Council 37, AFSCM, USDC, SDNY, 2002 WL 31164470

Among the issues considered by Federal District Court Judge Chin in the Pender case was the amount of weight to be given to an arbitration award by the court in a lawsuit involving essentially the same complaint and the same parties that were earlier considered by an arbitrator.

Judge Chin's conclusion: the arbitrator's decision "is but one piece of evidence -- albeit an important piece ... entitled to great weight -- to be considered in the context of the entire record."

Patricia A. Pender complained that her former employer, District Council 37 of the American Federation of State, County and Municipal Employees [DC-37], violated the Americans with Disabilities Act and New York States Human Rights Law when it fired her because of her disability. She filed a grievance protesting her dismissal and ultimately the matter was submitted to arbitration.

While the grievance arbitration proceeding was pending, Pender filed a charge of discrimination with the Equal Employment Opportunity Commission against DC-37, alleging that DC-37 had unlawfully discrimination against her because of her disability. Pender received a right-to-sue letter from the EEOC on April 25, 2000. By this time, the arbitrator had issued her award, rejecting Pender's grievance. DC-37 asked Judge Chin to dismiss Pender's complaint, contending that the arbitration award was preclusive and thus there was nothing left for the court to determine.

Judge Chin ruled that in this situation the arbitrator's decision was entitled to great weight, but not preclusive weight. She found that Bonnie Siber Weinstock, "an experienced labor arbitrator, conducted the grievance arbitration, at which the both Pender and DC-37 presented documentary and testimonial evidence and examined and cross-examined witnesses under oath."

Weinstock, said the court, issued a 23-page opinion and award, rejecting Pender's grievance and finding that DC-37 did not violate the collective bargaining agreement when it terminated Pender's employment because she was unable to perform the duties and responsibilities of a DC-37 Council Representative, even with reasonable accommodations. Noting that the arbitrator had specifically addressed Pender's ADA claim "on the merits" and had assumed that Pender had a "disability" within the meaning of the ADA.

In making her decision, Judge Chin said that the arbitrator concluded that Pender "was unable to perform the essential functions of a Council Representative with or without an accommodation."

Why was the arbitrator's decision entitled to great weight? Because, said the court, the issue before the arbitrator was largely one of fact, well suited for resolution in the traditional labor arbitral format -- whether Pender could perform the essential functions of the Council Representative position -- and the arbitrator gave full consideration to Pender's ADA claim.

As Weinstock's decision was entitled to great weight and since "no jury could reasonably conclude, on the basis of the record before the Court that Pender's rights under the ADA and New York law were violated," Judge Chin dismissed her petition.

In considering DC-37's motion to dismiss Pender's complaint, Judge Chin reviewed the role of arbitration decisions in civil rights litigation in the light of "three leading Supreme Court decisions" addressing this issue: Alexander v Gardner-Denver Co., 415 US 36; Gilmer v Interstate/Johnston Lane Corp., 500 US 20; and Wright v Universal Maritime Service Corp., 525 US 70.

In Gardner-Denver, the Supreme Court ruled that a union employee "does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement."

In Gilmer, the Supreme Court said that mandatory arbitration clauses are enforceable and that an employee could waive his or her right to bring federal statutory claims to court.

In the Wright case, the Supreme Court decided that even assuming a collective bargaining agreement arbitration clause is enforceable to compel arbitration of an employee's statutory discrimination claim, such a clause would only be enforced if it was "particularly clear" that it was intended to cover such claims.

Considering these three rulings, Judge Chin concluded that in this instance the arbitration procedure satisfied the several concerns set out by the Supreme Court. The bottom line: although Weinstock's decision was not entitled to preclusive effect, it was entitled to "great weight." The “weight” issue for the court to determine:

Considering the arbitration award together with all the evidence in the record, would a reasonable jury find for Pender on the issue of discrimination? In Judge Chin's view the answer was no and this finding required the court to dismiss Pender's petition.

Judge Chin commented that the collective bargaining agreement in effect furnished full statutory protections, as it provided that "[t]he employer shall comply with all applicable law in the area of non-discrimination in employment practices" and the "degree of procedural fairness in the arbitral forum was high."