Determining when to apply the substantial evidence standard of review and when to apply the arbitrary and capricious standard in a disciplinary action
Pierino v Brown, 281 A.D.2d 960
The significant issue in the Pierino case concerns the proper standard to be applied in making the determination in an administrative disciplinary proceeding.
John Pierino filed an Article 78 action challenging a disciplinary determination based on a hearing officer's finding that Pierino was guilty of violating Section 35-6 of the Buffalo City Code.
The disciplinary charges filed against Pierino were resolved in accordance with the provisions set out in Article 22 -- the contract disciplinary procedure -- of the relevant collective bargaining agreement. Article 22 required the appointment of a hearing officer, who was to hear the charges and make a determination.
Pierino challenged the disciplinary determination by bring an Article 78 action alleging the decision by the hearing officer was not based on substantial evidence. As is typical in such cases, the State Supreme Court transferred the action to the Appellate Division.
The Appellate Division, however, rejected the transfer of Pierino's Article 78 petition to it for review.
What was the basis for the court's action?
The Appellate Division ruled that the issue of "substantial evidence" that formed the basis of Pierino's appeal is raised only if an administrative hearing is "required by law." In the words of the Appellate Division, citing Marin v Bensonsi, 131 AD2 100:
“Since the hearing was mandated by the collective bargaining agreement and not by Civil Service Law Section 75, the substantial evidence standard of review does not apply and the arbitrary and capricious standard is appropriate."
Consequently, said the Appellate Division, "the proceeding was erroneously transferred to this Court.”
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
June 18, 2010
Absence during a probationary period
Absence during a probationary period
Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U), Judge: Herman Cahn, [Not selected for publication in the Official Reports], Affirmed 51 A.D.3d 538
Garnes was appointed as a New York City police officer on July 1, 2003. His appointment was subject to a twenty-four month probationary period. Under normal circumstances Garnes would have completed his twenty-four month probationary period on June 30, 2005.
During his probationary period, however, Garnes was suspended for 30 days as a result of an off-duty incident and had other absences during this period. In addition, Judge Cahn noted that at the end of Garnes’ 30-day period of suspension, the NYPD placed him on modified duty.
Ultimately NYPD’s psychologist, Marisa Barra, M.A., determined that Garnes was “psychologically unsuitable to be a Police Officer and recommended that he be separated from the Department.’’ NYPD dismissed Garnes on May 4, 2006.
Garnes filed a petition pursuant to CPLR Article 78 seeking a court order annulling his termination from the NYPD, an order directing his reinstatement to his former position and an order compelling the Department to provide him with a name-clearing hearing.
The question to be resolved by the court: was Garnes’ probationary period extended as a result of his being suspended for suspended for 30 days on July 9, 2005 as a result of an off-duty incident and his other absences?
Rule 5.2.8(b) of the Personnel Rules and Regulations of the City of New York (“Personnel Rules”) provide that an employee’s probationary period is automatically extended by the number of days the employee does not perform the duties of the position. Under these Rules, a probationer is deemed not to be performing his duties when he is on annual leave, sick leave, assigned to limited duty or is suspended.
The NYPD contended that Garnes was not entitled to a pre-termination hearing because he was still on probation when he was terminated.
Judge Cahn ruled that: Because the Personnel Rules specify that an employee’s probationary period is extended by any amount of time that he is not performing his duties and are clear that a probationary employee may be terminated at any point during the extended period, at the time of his suspension, Garnes was still a probationary employee.
“Additionally,” said the court, “the extended probationary period continued beyond Garnes’ suspension, when the NYPD placed him on modified and restricted duty, pending the investigation of the off-duty incident.” Although modified duty is not listed in the Personnel Rules, Judge Chan said that the Court of Appeals has determined that it acts to extend the probationary period and the probationer does not have to be given notice of such an extension, citing Garcia v Bratton, 90 NY2d 991.*
As to Garnes’ demand for a name-clearing hearing, such a hearing is required when an employee can demonstrate that there is likelihood that false, “stigmatizing” material found in his personnel file will be disseminated by the employer, foreclosing future employment opportunities. Further, the sole purpose of such a hearing is to afford the employee an opportunity to prove that the material is false and should be expunged from his or her record -- it is not grounds for reinstatement should the individual prevail.
Judge Cahn ruled that Garnes was not entitled to a name-clearing hearing because even assuming all the facts in his Petition are true, he did not meet the standard for a name-clearing hearing set by the Court of Appeals in Swinton v Safir, 93 NY2d 758. Swinton requires that the material objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” The Appellate Division agreed.
Further, said the court, dismissing Garnes’ petition in its entirety, it must be noted that Garnes has not put forth any allegations or evidence that there is a likelihood any of this alleged stigmatizing material would be disseminated. In contrast, in Swinton, Swinton contended that the police department would disclose his personnel record to agencies with which he was seeking employment. Garnes, however, did not advance allegations that the NYPD will give his personnel file to potential employers.
* In the event an employee injured on the job is given a “light-duty assignment,” the courts have ruled that the appointing authority was not required to count the employee's “light-duty service” for probationary purposes [see Boyle v Koch, 114 AD2 78, leave to appeal denied, 68 NY2d 601]. In such situations, the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of “light-duty.”
Judge Cahn's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30262.pdf
Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U), Judge: Herman Cahn, [Not selected for publication in the Official Reports], Affirmed 51 A.D.3d 538
Garnes was appointed as a New York City police officer on July 1, 2003. His appointment was subject to a twenty-four month probationary period. Under normal circumstances Garnes would have completed his twenty-four month probationary period on June 30, 2005.
During his probationary period, however, Garnes was suspended for 30 days as a result of an off-duty incident and had other absences during this period. In addition, Judge Cahn noted that at the end of Garnes’ 30-day period of suspension, the NYPD placed him on modified duty.
Ultimately NYPD’s psychologist, Marisa Barra, M.A., determined that Garnes was “psychologically unsuitable to be a Police Officer and recommended that he be separated from the Department.’’ NYPD dismissed Garnes on May 4, 2006.
Garnes filed a petition pursuant to CPLR Article 78 seeking a court order annulling his termination from the NYPD, an order directing his reinstatement to his former position and an order compelling the Department to provide him with a name-clearing hearing.
The question to be resolved by the court: was Garnes’ probationary period extended as a result of his being suspended for suspended for 30 days on July 9, 2005 as a result of an off-duty incident and his other absences?
Rule 5.2.8(b) of the Personnel Rules and Regulations of the City of New York (“Personnel Rules”) provide that an employee’s probationary period is automatically extended by the number of days the employee does not perform the duties of the position. Under these Rules, a probationer is deemed not to be performing his duties when he is on annual leave, sick leave, assigned to limited duty or is suspended.
The NYPD contended that Garnes was not entitled to a pre-termination hearing because he was still on probation when he was terminated.
Judge Cahn ruled that: Because the Personnel Rules specify that an employee’s probationary period is extended by any amount of time that he is not performing his duties and are clear that a probationary employee may be terminated at any point during the extended period, at the time of his suspension, Garnes was still a probationary employee.
“Additionally,” said the court, “the extended probationary period continued beyond Garnes’ suspension, when the NYPD placed him on modified and restricted duty, pending the investigation of the off-duty incident.” Although modified duty is not listed in the Personnel Rules, Judge Chan said that the Court of Appeals has determined that it acts to extend the probationary period and the probationer does not have to be given notice of such an extension, citing Garcia v Bratton, 90 NY2d 991.*
As to Garnes’ demand for a name-clearing hearing, such a hearing is required when an employee can demonstrate that there is likelihood that false, “stigmatizing” material found in his personnel file will be disseminated by the employer, foreclosing future employment opportunities. Further, the sole purpose of such a hearing is to afford the employee an opportunity to prove that the material is false and should be expunged from his or her record -- it is not grounds for reinstatement should the individual prevail.
Judge Cahn ruled that Garnes was not entitled to a name-clearing hearing because even assuming all the facts in his Petition are true, he did not meet the standard for a name-clearing hearing set by the Court of Appeals in Swinton v Safir, 93 NY2d 758. Swinton requires that the material objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” The Appellate Division agreed.
Further, said the court, dismissing Garnes’ petition in its entirety, it must be noted that Garnes has not put forth any allegations or evidence that there is a likelihood any of this alleged stigmatizing material would be disseminated. In contrast, in Swinton, Swinton contended that the police department would disclose his personnel record to agencies with which he was seeking employment. Garnes, however, did not advance allegations that the NYPD will give his personnel file to potential employers.
* In the event an employee injured on the job is given a “light-duty assignment,” the courts have ruled that the appointing authority was not required to count the employee's “light-duty service” for probationary purposes [see Boyle v Koch, 114 AD2 78, leave to appeal denied, 68 NY2d 601]. In such situations, the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of “light-duty.”
Judge Cahn's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30262.pdf
Reporting threats of violence by a disgruntled employee to the police
Reporting threats of violence by a disgruntled employee to the police
Aviles v Cornell Forge Co., CA7, 241 F.3d 589
Violence at the work site is a growing concern to both employers and employees.
The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building. The police were called and arrested Aviles. Aviles then sued the employer, Cornell Forge Co., for alleged unlawful discrimination based on his national origin and claimed that the Cornell had called the police in retaliation for his filing a hostile work environment claim.
These were the essential elements alleged in the Aviles case.
Aviles contended that he was the victim of unlawful discrimination because "calling the police to report that a disgruntled employee is waiting outside the workplace and may be armed is an adverse action as a matter of law."
The U.S. Circuit Court of Appeals disagreed with Aviles' theory, ruling that a truthful, nondiscriminatory report to the police should not subject an employer to Title VII liability.
According to the decision, such theory is "ill-advised." If, said the court, an employer had to face potential Title VII liability for truthfully reporting to the police that a disgruntled employee had threatened a supervisor and could be armed, it probably would discourage employers from taking the most prudent action to protect themselves and others in the workplace.
In contrast, the court said that a false report to the police could be construed as a retaliatory action meant to dissuade Aviles from pursuing his EEOC charge against the company.
The court affirmed the district court's granting a directed verdict in favor of Cornell Forge.
Aviles v Cornell Forge Co., CA7, 241 F.3d 589
Violence at the work site is a growing concern to both employers and employees.
The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building. The police were called and arrested Aviles. Aviles then sued the employer, Cornell Forge Co., for alleged unlawful discrimination based on his national origin and claimed that the Cornell had called the police in retaliation for his filing a hostile work environment claim.
These were the essential elements alleged in the Aviles case.
Aviles contended that he was the victim of unlawful discrimination because "calling the police to report that a disgruntled employee is waiting outside the workplace and may be armed is an adverse action as a matter of law."
The U.S. Circuit Court of Appeals disagreed with Aviles' theory, ruling that a truthful, nondiscriminatory report to the police should not subject an employer to Title VII liability.
According to the decision, such theory is "ill-advised." If, said the court, an employer had to face potential Title VII liability for truthfully reporting to the police that a disgruntled employee had threatened a supervisor and could be armed, it probably would discourage employers from taking the most prudent action to protect themselves and others in the workplace.
In contrast, the court said that a false report to the police could be construed as a retaliatory action meant to dissuade Aviles from pursuing his EEOC charge against the company.
The court affirmed the district court's granting a directed verdict in favor of Cornell Forge.
June 17, 2010
Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"
Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"
Matter of Guynup v County of Clinton, 2010 NY Slip Op 04914, decided on June 10, 2010, Appellate Division, Third Department
Terry Guynup, a lieutenant with 14 years of service with the Clinton County Sheriff's Department, was served with disciplinary charges alleging misconduct, incompetence and insubordination pursuant to Civil Service Law §75.
One of the specifications filed against Guynup alleged that he had directed threats towards the Sheriff, David Favro.
The §75 hearing officer found Guynup guilty of all but two of the specifications set out in the charges.
In addition to dismissing a charge that alleged that Guynup had made derogatory public comments about the Sheriff's Department because no evidence was presented at the hearing to support this charge, the Hearing Officer dismissed the charge concerning the threat that Guynup was alleged to have directed at Sheriff Favro because, “if made, it occurred more than 18 months before the disciplinary charges were filed and, as a result, was untimely.*
The Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.
When Sheriff Favro received the Hearing Officer’s findings and recommendations, he disqualified himself from any further participation in the proceeding and designated Michael E. Zurlo, the Clinton County Administrator, to review the report, determine if its findings were supported by substantial evidence and decide what penalty, if any, should be imposed upon Guynup.
Zurlo adopted the Hearing Officer's findings that Guynup was guilty of misconduct, insubordination and incompetence, but, among other things, determined that the specification dismissed by the Hearing Officer as untimely was, in fact, timely as it constituted criminal and, therefor, the statutory time period within which the disciplinary action concerning this allegation had to be commenced did not apply.
Zurlo rejected the Hearing Officer's recommendation regarding the penalty to be imposed and, instead, directed that Guynup should be terminated from his position with the Sheriff's Department.
Guynup filed an Article 78 petition challenging [1] “the legality of Zurlo's appointment by Favro,” and [2] Zurlo’s determination that the charge alleging the threat to Favro was timely.
As to Guynup’s objection to the Sheriff designating Zurlo to review the Hearing Officer’s findings and recommendations and to make a final determination, the Appellate Division, citing Gomex v Stout, 13 NY3d 182, said that “where a civil service proceeding has been commenced and a conflict exists that implicates the appointing authority's ability to be fair and impartial, a third party with ‘supervisory authority over that particular employee’ may be designated to review a Hearing Officer's report and, upon such a review, make determinations concerning the employee's status.”
Noting that “the conflict for Favro was self-evident and required that he disqualify himself from conducting the necessary review of the findings and recommendations made by the Hearing Officer,” the Appellate Division also found that the only others having “command authority” over Guynup were disqualified because of they were both witnesses who testified at the disciplinary hearing.
The court said that “Favro not only had the authority to deputize Zurlo, the County Administrator, and make him a member of the Sheriff's Department, but also had the right to delegate to him the authority to conduct this review.”
Turning to the Hearing Officer’s ruling that the charge alleging that Guynup threatened Favro was untimely and should have been dismissed, the Appellate Division said that it agreed with the Hearing Officer’s determination that the §75(4) 18-month statute of limitations for bringing such charges controlled.
First, said the court, Civil Service Law §75(4) requires that a removal or disciplinary proceeding be commenced within 18 months after the acts that form the basis of the charges have occurred, unless the conduct in question involves the commission of a crime.
The County's theory: Guynup actions constituted committing the crimes of menacing in the third degree and reckless endangerment in the second degree, thereby rendering the 18-month time limit within which such a charge could be brought inapplicable to this proceeding. The Appellate Division disagreed and sustained the Hearing Officer's ruling.
To have committed the crime of reckless endangerment, said the court, evidence must be presented that Guynup "recklessly engage[d] in conduct which create[d] a substantial risk of serious physical injury to another person" within the meaning of Penal Law §120.20. As Guynup denied the events underlying the allegation, the Appellate Division ruled that “Absent some evidence to the contrary, and none was presented at the hearing, the crime of reckless endangerment on these facts could not have been committed.”
As a result, said the court, "even if the testimony regarding the threats and ensuing struggle are fully accepted, the crimes of reckless endangerment and menacing were not committed by Guynup and the statutory exception to the 18-month rule does not apply” and the charge alleging that he had threatened Favro must be dismissed as untimely.
Finding that Zurlo “never specified the penalty to be imposed for each charge for which he found [Guynup] guilty,” and that the principal charge filed against him — the threat to Sheriff Favro — has been dismissed, the Appellate Division remitted the matter “for a redetermination of the penalty to be imposed on those charges of which [Guynup] now stands guilty.”
* §75.4. provides that “Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential under article fourteen of this chapter, more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.”
N.B. §75.4 sets different statutes of limitations for state employees designated managerial or confidential pursuant to Article 14 of the Civil Service Law than it does for other individuals. Although a number of collective bargaining agreements provide for a shorter “statutes of limitations” for filing disciplinary charges against an individual in a collective bargaining unit, it is unlikely that setting a greater statute of limitations for employees in a collective bargaining unit would survive judicial review for the reason set out by the Appellate Division in City of Plattsburgh v Local 788, 108 AD2d 1045 -- a collective bargaining agreement may not truncate or diminish a statutory right enjoyed by an employee.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04914.htm
Matter of Guynup v County of Clinton, 2010 NY Slip Op 04914, decided on June 10, 2010, Appellate Division, Third Department
Terry Guynup, a lieutenant with 14 years of service with the Clinton County Sheriff's Department, was served with disciplinary charges alleging misconduct, incompetence and insubordination pursuant to Civil Service Law §75.
One of the specifications filed against Guynup alleged that he had directed threats towards the Sheriff, David Favro.
The §75 hearing officer found Guynup guilty of all but two of the specifications set out in the charges.
In addition to dismissing a charge that alleged that Guynup had made derogatory public comments about the Sheriff's Department because no evidence was presented at the hearing to support this charge, the Hearing Officer dismissed the charge concerning the threat that Guynup was alleged to have directed at Sheriff Favro because, “if made, it occurred more than 18 months before the disciplinary charges were filed and, as a result, was untimely.*
The Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.
When Sheriff Favro received the Hearing Officer’s findings and recommendations, he disqualified himself from any further participation in the proceeding and designated Michael E. Zurlo, the Clinton County Administrator, to review the report, determine if its findings were supported by substantial evidence and decide what penalty, if any, should be imposed upon Guynup.
Zurlo adopted the Hearing Officer's findings that Guynup was guilty of misconduct, insubordination and incompetence, but, among other things, determined that the specification dismissed by the Hearing Officer as untimely was, in fact, timely as it constituted criminal and, therefor, the statutory time period within which the disciplinary action concerning this allegation had to be commenced did not apply.
Zurlo rejected the Hearing Officer's recommendation regarding the penalty to be imposed and, instead, directed that Guynup should be terminated from his position with the Sheriff's Department.
Guynup filed an Article 78 petition challenging [1] “the legality of Zurlo's appointment by Favro,” and [2] Zurlo’s determination that the charge alleging the threat to Favro was timely.
As to Guynup’s objection to the Sheriff designating Zurlo to review the Hearing Officer’s findings and recommendations and to make a final determination, the Appellate Division, citing Gomex v Stout, 13 NY3d 182, said that “where a civil service proceeding has been commenced and a conflict exists that implicates the appointing authority's ability to be fair and impartial, a third party with ‘supervisory authority over that particular employee’ may be designated to review a Hearing Officer's report and, upon such a review, make determinations concerning the employee's status.”
Noting that “the conflict for Favro was self-evident and required that he disqualify himself from conducting the necessary review of the findings and recommendations made by the Hearing Officer,” the Appellate Division also found that the only others having “command authority” over Guynup were disqualified because of they were both witnesses who testified at the disciplinary hearing.
The court said that “Favro not only had the authority to deputize Zurlo, the County Administrator, and make him a member of the Sheriff's Department, but also had the right to delegate to him the authority to conduct this review.”
Turning to the Hearing Officer’s ruling that the charge alleging that Guynup threatened Favro was untimely and should have been dismissed, the Appellate Division said that it agreed with the Hearing Officer’s determination that the §75(4) 18-month statute of limitations for bringing such charges controlled.
First, said the court, Civil Service Law §75(4) requires that a removal or disciplinary proceeding be commenced within 18 months after the acts that form the basis of the charges have occurred, unless the conduct in question involves the commission of a crime.
The County's theory: Guynup actions constituted committing the crimes of menacing in the third degree and reckless endangerment in the second degree, thereby rendering the 18-month time limit within which such a charge could be brought inapplicable to this proceeding. The Appellate Division disagreed and sustained the Hearing Officer's ruling.
To have committed the crime of reckless endangerment, said the court, evidence must be presented that Guynup "recklessly engage[d] in conduct which create[d] a substantial risk of serious physical injury to another person" within the meaning of Penal Law §120.20. As Guynup denied the events underlying the allegation, the Appellate Division ruled that “Absent some evidence to the contrary, and none was presented at the hearing, the crime of reckless endangerment on these facts could not have been committed.”
As a result, said the court, "even if the testimony regarding the threats and ensuing struggle are fully accepted, the crimes of reckless endangerment and menacing were not committed by Guynup and the statutory exception to the 18-month rule does not apply” and the charge alleging that he had threatened Favro must be dismissed as untimely.
Finding that Zurlo “never specified the penalty to be imposed for each charge for which he found [Guynup] guilty,” and that the principal charge filed against him — the threat to Sheriff Favro — has been dismissed, the Appellate Division remitted the matter “for a redetermination of the penalty to be imposed on those charges of which [Guynup] now stands guilty.”
* §75.4. provides that “Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential under article fourteen of this chapter, more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.”
N.B. §75.4 sets different statutes of limitations for state employees designated managerial or confidential pursuant to Article 14 of the Civil Service Law than it does for other individuals. Although a number of collective bargaining agreements provide for a shorter “statutes of limitations” for filing disciplinary charges against an individual in a collective bargaining unit, it is unlikely that setting a greater statute of limitations for employees in a collective bargaining unit would survive judicial review for the reason set out by the Appellate Division in City of Plattsburgh v Local 788, 108 AD2d 1045 -- a collective bargaining agreement may not truncate or diminish a statutory right enjoyed by an employee.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04914.htm
Using personnel records in determining an appropriate disciplinary penalty
Using personnel records in determining an appropriate disciplinary penalty
Massaria v Betschen, 290 A.D.2d 602
In the Massaria case the Appellate Division was asked to determine if was appropriate for the Section 75 hearing officer to consider a disciplinary settlement agreement entered into by an employee and his or her employer to resolve an earlier disciplinary action involving the employee when determining the penalty to be imposed on the employee after he or she was found guilty of misconduct and incompetence in a second, subsequent, disciplinary action.
New Paltz Superintendent of Schools Frederick Betschen filed Section 75 disciplinary charges Kenneth Massaria alleging that he was guilty of misconduct and incompetence based on Massaria's failing to drop a third grade student off at the proper bus stop on two occasions and an incident, captured on videotape, in which Massaria drove his bus in the middle of the road as he approached waiting students at a bus stop.
The hearing officer found Massaria guilty of all of these charges and recommended that he be dismissed from his employment. The School Board adopted the hearing officer's findings and recommendation and terminated Massaria from his position. Massaria appealed, challenging the Board's action.
The Appellate Division dismissed Massaria's appeal, ruling that the testimony and evidence presented at the hearing supplied the substantial evidence required to affirm the school district's action.
One the major issues considered by the court involved the "penalty phase" of the disciplinary hearing. At this point in the proceeding the School District introduced Massaria's prior disciplinary record for the hearing officer's to consider in determining the appropriate penalty to be imposed on Massaria.
This record consisted of a "stipulation of settlement" in lieu of disciplinary charges. In executing this stipulation, Massaria admitted to four acts of misconduct and incompetence involving improperly operating his school bus and "his departing from a mandatory meeting without supervisory permission."
Massaria conceded that the stipulation also provided that it constituted Civil Service Law Section 75 discipline, that it could be used in any future disciplinary proceeding against him, and that if he engaged in similar misconduct in the future, the District would seek to dismiss him from his position.
Addressing the hearing officer's consideration of the stipulation documenting Massaria's prior admission of misconduct and incompetence during the "penalty phase" of the disciplinary action, the Appellate Division said that here the hearing officer's consideration of Massaria's employment record met the test set out in Bigelow v Board of Trustees of the Incorporated Village of Gouverneur, 63 NY2d 470. In particular, the court found that:
1. The hearing officer considered the stipulation only after Massaria was found guilty of the charges of misconduct and incompetence filed against him;
2. Massaria "was given ample notice" that the prior stipulated incidents would be submitted to the hearing officer to consider in determining the penalty to be imposed; and
3. Massaria was given an opportunity to be heard regarding those prior incidents.
Significantly, the Appellate Division said that the "prior infractions need not have been included in the statement of charges."Ruling that Massaria's employment history, including the settlement agreement flowing from the prior disciplinary action taken against him, "was properly taken into consideration in the determination of an appropriate sanction for the proven present acts of misconduct and incompetence," the Appellate Division dismissed Massaria's appeal.
Massaria v Betschen, 290 A.D.2d 602
In the Massaria case the Appellate Division was asked to determine if was appropriate for the Section 75 hearing officer to consider a disciplinary settlement agreement entered into by an employee and his or her employer to resolve an earlier disciplinary action involving the employee when determining the penalty to be imposed on the employee after he or she was found guilty of misconduct and incompetence in a second, subsequent, disciplinary action.
New Paltz Superintendent of Schools Frederick Betschen filed Section 75 disciplinary charges Kenneth Massaria alleging that he was guilty of misconduct and incompetence based on Massaria's failing to drop a third grade student off at the proper bus stop on two occasions and an incident, captured on videotape, in which Massaria drove his bus in the middle of the road as he approached waiting students at a bus stop.
The hearing officer found Massaria guilty of all of these charges and recommended that he be dismissed from his employment. The School Board adopted the hearing officer's findings and recommendation and terminated Massaria from his position. Massaria appealed, challenging the Board's action.
The Appellate Division dismissed Massaria's appeal, ruling that the testimony and evidence presented at the hearing supplied the substantial evidence required to affirm the school district's action.
One the major issues considered by the court involved the "penalty phase" of the disciplinary hearing. At this point in the proceeding the School District introduced Massaria's prior disciplinary record for the hearing officer's to consider in determining the appropriate penalty to be imposed on Massaria.
This record consisted of a "stipulation of settlement" in lieu of disciplinary charges. In executing this stipulation, Massaria admitted to four acts of misconduct and incompetence involving improperly operating his school bus and "his departing from a mandatory meeting without supervisory permission."
Massaria conceded that the stipulation also provided that it constituted Civil Service Law Section 75 discipline, that it could be used in any future disciplinary proceeding against him, and that if he engaged in similar misconduct in the future, the District would seek to dismiss him from his position.
Addressing the hearing officer's consideration of the stipulation documenting Massaria's prior admission of misconduct and incompetence during the "penalty phase" of the disciplinary action, the Appellate Division said that here the hearing officer's consideration of Massaria's employment record met the test set out in Bigelow v Board of Trustees of the Incorporated Village of Gouverneur, 63 NY2d 470. In particular, the court found that:
1. The hearing officer considered the stipulation only after Massaria was found guilty of the charges of misconduct and incompetence filed against him;
2. Massaria "was given ample notice" that the prior stipulated incidents would be submitted to the hearing officer to consider in determining the penalty to be imposed; and
3. Massaria was given an opportunity to be heard regarding those prior incidents.
Significantly, the Appellate Division said that the "prior infractions need not have been included in the statement of charges."Ruling that Massaria's employment history, including the settlement agreement flowing from the prior disciplinary action taken against him, "was properly taken into consideration in the determination of an appropriate sanction for the proven present acts of misconduct and incompetence," the Appellate Division dismissed Massaria's appeal.
Failure to serve the proper party a fatal procedural error
Failure to serve the proper party a fatal procedural error
Appeal of Stephanie Baker from action of the Board of Education of the City School District of the City of Elmira, Decisions of the Commissioner of Education #15,696
Stephanie Baker, a probationary teacher, appealed the termination of her probationary appointment and denial of tenure by the Board of Education of the City School District of the City of Elmira.
The Commissioner dismissed her appeal without addressing its merits, noting that there was a “lack of proper service on the board.”
Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district must made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).
Baker’s affidavit of service stated only that the notice of petition and petition were served on “Valerie–Secretary of Dr. Bryant.” The Commissioner said that the “Valerie” mentioned is Valerie Costiglia, Executive Secretary to the superintendent.
As Ms. Costiglia is not the district clerk, a member of the board, or the superintendent of schools, nor has she or her position as Executive Secretary been designated by the board as authorized to accept service of process within the meaning of 8 NYCRR §275.8, the Commissioner ruled that “When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed.”
The full text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/failure-to-serve-board-of-education.html
Appeal of Stephanie Baker from action of the Board of Education of the City School District of the City of Elmira, Decisions of the Commissioner of Education #15,696
Stephanie Baker, a probationary teacher, appealed the termination of her probationary appointment and denial of tenure by the Board of Education of the City School District of the City of Elmira.
The Commissioner dismissed her appeal without addressing its merits, noting that there was a “lack of proper service on the board.”
Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district must made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).
Baker’s affidavit of service stated only that the notice of petition and petition were served on “Valerie–Secretary of Dr. Bryant.” The Commissioner said that the “Valerie” mentioned is Valerie Costiglia, Executive Secretary to the superintendent.
As Ms. Costiglia is not the district clerk, a member of the board, or the superintendent of schools, nor has she or her position as Executive Secretary been designated by the board as authorized to accept service of process within the meaning of 8 NYCRR §275.8, the Commissioner ruled that “When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed.”
The full text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/failure-to-serve-board-of-education.html
Litigating the Taylor Law in federal court
Litigating the Taylor Law in federal court
Schermerhorn v Metropolitan Trans. Auth. CA2, 156 F.3d 351
The Schermerhorn case demonstrates that complaints that a union has breached its duty of fair representation to the members of the negotiating unit it represents must be filed within the controlling statute of limitations because the court will never reach the merits of the complaint if it is untimely filed.
Another important issue in this case: which was the controlling law -- federal or state -- for the purposes of determining the applicable limitations period.*
Schermerhorn, a member of Local 100 of the Transport Workers Union of America (Union) sued the Union and the Metropolitan Transportation Authority and the New York City Transit Authority (Employers). He complained that the Union breached its duty of fair representation in violation of the Taylor Law.
According to the Schermerhorn, the Union, without the knowledge of its members, had made a somewhat complex “open offer” to the Employers which, if accepted, would require members of the negotiating unit to pay “additional medical costs” upon their receiving an anticipated salary increase that was tied to a proposed change in pension legislation then pending before the New York State legislature.
This would constitute a significant change in the benefit package provided to the employees in the unit. At the time the Union made its “open offer,” the Employers were paying all costs of medical benefits for unit members through contributions to a welfare benefit trust. Further, the “open offer” also included a provision requiring its terms to be incorporated into the next collective bargaining agreement negotiated by the parties.
The pension legislation was adopted and on July 26, 1994, the Employers accepted the “open offer.”
The Union and the Employers subsequently entered into new collective bargaining agreements, which were later ratified by the Union’s membership. This new Taylor Law contract included the provisions contained in the “open offer.” Contending that the members had not been informed of the terms of the “open offer,” which was described as an “undisclosed agreement,” Schermerhorn argued that the contract was a nullity because it “was never properly ratified by the membership.”
A federal district court dismissed Schermerhorn’s petition, holding that the National Labor Relations Act applied to Schermerhorn’s action. The district court then held that Schemerhorn’s petition was “time-barred” under the six-month statute of limitations applicable under Section 301 of the federal Labor-Management Relations Act.
Although Schermerhorn settled his complaint against the Union officials after his petition was dismissed, he elected to appeal the district court’s ruling insofar as it related his allegations of collusion by the Employers.
In this appeal to the U.S. Circuit Court of Appeals, however, the parties stipulated, and the Circuit Court agreed, that the claim against the Employers was governed by the Taylor Law provision relating to claims by public employees against their employer premised on their union’s breach of its duty of fair representation [Civil Service Law Section 209-a] rather than by federal law.
Applying New York State Law, the Circuit Court held that the four-month statute of limitations set out in Section 217(2)(b) of New York’s Civil Practice Law and Rules [CPLR] controlled.
According to the Circuit Court’s ruling, this four-month limitations period begins to run when (i) the plaintiff knew or should have known of the union’s breach of its duty of fair representation; or (ii) the plaintiff suffered harm from that breach, whichever is later.
The Circuit Court said that “there can be no question that plaintiffs became aware of the existence of the agreement at the very latest in early September 1995” when they learned that the Employers would begin to deduct 0.75% of their wages to offset increased medical costs resulting from the modification of the pension plan.”
Accordingly, said the Court, “more than four months prior to the commencement of their suit, [Schemer horn] knew or should have known of the Union’s alleged breach, and had suffered harm from that breach.”
Schemer horn also contended that the four-month limitations period should be tolled because an internal Union grievance was filed by one of the plaintiffs on December 29, 1995. In that grievance the member attempted to have the Union officials responsible for the “undisclosed agreement” disciplined.
The Circuit Court said that it would look to New York’s “tolling rules” to determine whether the statute of limitations was tolled by the filing of a grievance. It concluded that “[t]here is no New York statutory provision tolling the statute of limitations while an employee pursues an internal union grievance for claims against a public employer arising from a union’s breach of its duty of fair representation....”
According to the Circuit Court, New York law does not allow administrative or union grievances to toll the statute of limitations on claims against public entities in article 78 proceedings. It noted the decision in Vasbinder v. Hartnett, 129 A.D.2d 894, 895, 514 N.Y.S.2d 530, commenting that in that ruling the State’s Appellate Division noted that “invocation of a grievance procedure will not serve to toll the statutory time limit prescribed by CPLR [Section] 217” for the purposes of Article 78 proceedings.
The points of the ruling to be remembered:
1. If a party brings an action involving New York’s Taylor Law on the theory that the National Labor Relations Act is, in some way, implicated, the federal court will decide those aspects of the litigation involving the Taylor Law on the basis of New York’s law, not the federal law; and
2. The fact that a grievance concerning the underlying complaint has been filed by one of the parties will not stop the statute of limitations from continuing to run with respect to that party for the purposes of initiating litigation.
* Although the decisions here concluded that Schermerhorn’s suit was “untimely” regardless of whether federal and State law controlled, the critical aspect of the ruling was that the parties, and the U.S. Circuit Court of Appeals, ultimately agreed that New York State Law rather than the National Labor Relations Act, controlled.
Schermerhorn v Metropolitan Trans. Auth. CA2, 156 F.3d 351
The Schermerhorn case demonstrates that complaints that a union has breached its duty of fair representation to the members of the negotiating unit it represents must be filed within the controlling statute of limitations because the court will never reach the merits of the complaint if it is untimely filed.
Another important issue in this case: which was the controlling law -- federal or state -- for the purposes of determining the applicable limitations period.*
Schermerhorn, a member of Local 100 of the Transport Workers Union of America (Union) sued the Union and the Metropolitan Transportation Authority and the New York City Transit Authority (Employers). He complained that the Union breached its duty of fair representation in violation of the Taylor Law.
According to the Schermerhorn, the Union, without the knowledge of its members, had made a somewhat complex “open offer” to the Employers which, if accepted, would require members of the negotiating unit to pay “additional medical costs” upon their receiving an anticipated salary increase that was tied to a proposed change in pension legislation then pending before the New York State legislature.
This would constitute a significant change in the benefit package provided to the employees in the unit. At the time the Union made its “open offer,” the Employers were paying all costs of medical benefits for unit members through contributions to a welfare benefit trust. Further, the “open offer” also included a provision requiring its terms to be incorporated into the next collective bargaining agreement negotiated by the parties.
The pension legislation was adopted and on July 26, 1994, the Employers accepted the “open offer.”
The Union and the Employers subsequently entered into new collective bargaining agreements, which were later ratified by the Union’s membership. This new Taylor Law contract included the provisions contained in the “open offer.” Contending that the members had not been informed of the terms of the “open offer,” which was described as an “undisclosed agreement,” Schermerhorn argued that the contract was a nullity because it “was never properly ratified by the membership.”
A federal district court dismissed Schermerhorn’s petition, holding that the National Labor Relations Act applied to Schermerhorn’s action. The district court then held that Schemerhorn’s petition was “time-barred” under the six-month statute of limitations applicable under Section 301 of the federal Labor-Management Relations Act.
Although Schermerhorn settled his complaint against the Union officials after his petition was dismissed, he elected to appeal the district court’s ruling insofar as it related his allegations of collusion by the Employers.
In this appeal to the U.S. Circuit Court of Appeals, however, the parties stipulated, and the Circuit Court agreed, that the claim against the Employers was governed by the Taylor Law provision relating to claims by public employees against their employer premised on their union’s breach of its duty of fair representation [Civil Service Law Section 209-a] rather than by federal law.
Applying New York State Law, the Circuit Court held that the four-month statute of limitations set out in Section 217(2)(b) of New York’s Civil Practice Law and Rules [CPLR] controlled.
According to the Circuit Court’s ruling, this four-month limitations period begins to run when (i) the plaintiff knew or should have known of the union’s breach of its duty of fair representation; or (ii) the plaintiff suffered harm from that breach, whichever is later.
The Circuit Court said that “there can be no question that plaintiffs became aware of the existence of the agreement at the very latest in early September 1995” when they learned that the Employers would begin to deduct 0.75% of their wages to offset increased medical costs resulting from the modification of the pension plan.”
Accordingly, said the Court, “more than four months prior to the commencement of their suit, [Schemer horn] knew or should have known of the Union’s alleged breach, and had suffered harm from that breach.”
Schemer horn also contended that the four-month limitations period should be tolled because an internal Union grievance was filed by one of the plaintiffs on December 29, 1995. In that grievance the member attempted to have the Union officials responsible for the “undisclosed agreement” disciplined.
The Circuit Court said that it would look to New York’s “tolling rules” to determine whether the statute of limitations was tolled by the filing of a grievance. It concluded that “[t]here is no New York statutory provision tolling the statute of limitations while an employee pursues an internal union grievance for claims against a public employer arising from a union’s breach of its duty of fair representation....”
According to the Circuit Court, New York law does not allow administrative or union grievances to toll the statute of limitations on claims against public entities in article 78 proceedings. It noted the decision in Vasbinder v. Hartnett, 129 A.D.2d 894, 895, 514 N.Y.S.2d 530, commenting that in that ruling the State’s Appellate Division noted that “invocation of a grievance procedure will not serve to toll the statutory time limit prescribed by CPLR [Section] 217” for the purposes of Article 78 proceedings.
The points of the ruling to be remembered:
1. If a party brings an action involving New York’s Taylor Law on the theory that the National Labor Relations Act is, in some way, implicated, the federal court will decide those aspects of the litigation involving the Taylor Law on the basis of New York’s law, not the federal law; and
2. The fact that a grievance concerning the underlying complaint has been filed by one of the parties will not stop the statute of limitations from continuing to run with respect to that party for the purposes of initiating litigation.
* Although the decisions here concluded that Schermerhorn’s suit was “untimely” regardless of whether federal and State law controlled, the critical aspect of the ruling was that the parties, and the U.S. Circuit Court of Appeals, ultimately agreed that New York State Law rather than the National Labor Relations Act, controlled.
June 16, 2010
Employee disciplined for driving department vehicle “with a passenger, after hours and off-route"
Employee disciplined for driving department vehicle “with a passenger, after hours and off-route"
New York City Department of Environmental Protection v Johnson, OATH Index #1330/10
OATH Administrative Law Judge Kevin Casey found that a “311 complaint” telephoned by a citizen, Mike Cristino, corroborated by the Department’s chief inspector's investigation, was sufficiently reliable to prove that a Department water use inspector drove a department truck, with a passenger, after hours and off-route.
Mr. Cristino had telephoned 311* and reported that while crossing a street in Brooklyn after 5 p.m., he was almost hit by a truck driven by a DEP worker. The complainant provided the license plate number and noted that the passenger in the vehicle had “given him the finger.”
The license plate number provided by Mr. Cristino matched the one on the truck assigned to Nicholas Johnson, an Environmental Protection water use inspector.
The record indicated that Johnson’s route was in the Bronx, and his shift ended at 4:30 p.m.
The Department’s inspector testified Johnson had logged 56 miles that day although his route was 18 miles. Johnson attempted to explain the discrepancy by suggesting he drove extra miles to keep his truck cabin cool, to avoid extra idling and check fire hydrants or that he made an erroneous log entry.
ALJ Casey rejected Johnson’s explanations as unlikely and recommended be suspended without pay for 12 days.
* Individuals in New York City only need dial 311 - the 311 Citizens Service Center - for all non-emergency related Government services calls. For additional information about NYC's 311 service go to: http://www.nyc.com/government/311_citizens_service_center.76037/editorial_review.aspx
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1330.pdf
New York City Department of Environmental Protection v Johnson, OATH Index #1330/10
OATH Administrative Law Judge Kevin Casey found that a “311 complaint” telephoned by a citizen, Mike Cristino, corroborated by the Department’s chief inspector's investigation, was sufficiently reliable to prove that a Department water use inspector drove a department truck, with a passenger, after hours and off-route.
Mr. Cristino had telephoned 311* and reported that while crossing a street in Brooklyn after 5 p.m., he was almost hit by a truck driven by a DEP worker. The complainant provided the license plate number and noted that the passenger in the vehicle had “given him the finger.”
The license plate number provided by Mr. Cristino matched the one on the truck assigned to Nicholas Johnson, an Environmental Protection water use inspector.
The record indicated that Johnson’s route was in the Bronx, and his shift ended at 4:30 p.m.
The Department’s inspector testified Johnson had logged 56 miles that day although his route was 18 miles. Johnson attempted to explain the discrepancy by suggesting he drove extra miles to keep his truck cabin cool, to avoid extra idling and check fire hydrants or that he made an erroneous log entry.
ALJ Casey rejected Johnson’s explanations as unlikely and recommended be suspended without pay for 12 days.
* Individuals in New York City only need dial 311 - the 311 Citizens Service Center - for all non-emergency related Government services calls. For additional information about NYC's 311 service go to: http://www.nyc.com/government/311_citizens_service_center.76037/editorial_review.aspx
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1330.pdf
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