ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

June 21, 2010

Termination for cause may result in the loss of fringe benefits in retirement

Termination for cause may result in the loss of fringe benefits in retirement
Farrell v City of Rensselaer, NYS Supreme Court, Justice James B. Canfield, [Not selected for publication in the Official Reports]

Frequently the employer will provide health insurance and similar fringe benefits to its retirees. In some cases an employee who, upon leaving his or her employment, has "vested" his or her retirement benefits may be entitled to such fringe benefits at a later date.

Farrell decision considers an important related issue: What are the rights of a former employee to fringe benefits such as health insurance that the employer provides to individuals receiving a retirement allowance if the retired employee was terminated from employment as a result of having been found guilty of disciplinary charges?

This was the situation that faced City of Rensselaer police officer Edward W. Farrell after he was terminated from his position for misconduct: the City refused to continue his health insurance benefits following his separation.*

Farrell sued, claiming that he was entitled to such health insurance benefits because he had "retired before being terminated." He argued that the City's refusal to pay for his health insurance benefits upon his retirement was "arbitrary, capricious, unreasonable and unlawful."

The City contended that Farrell had not retired from its police department but had been terminated following disciplinary action. The City pointed out that it had rejected Farrell's "retirement note" that he had submitted an hour before disciplinary charges were served on him and that it had gone forward with the disciplinary action.

This is not an unusual situation.

An individual may decided to submit his or her resignation in anticipation of, or after being served with, disciplinary charges. For example, the New York State Civil Service Commission, which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, adopted a rule applicable to employees addressing this type of situation -- 4 NYCRR 5.3(b).

This rule provides that in the event disciplinary charges have been, or are about to be, filed against an employee, the appointing authority may elect to disregard a resignation filed by the employee and may proceed with the disciplinary action. Should the employee be found guilty, his or her separation is recorded as a dismissal rather than a resignation. Many municipal civil service commissions have adopted a similar rule.

In Farrell's case the court appears to have applied a similar rationale in dealing with a "retirement-disciplinary situation," holding that retirement, or the announcement of an intention to retire, does not bar the employer from proceeding with a disciplinary action.

Although Farrell claimed that he had retired from the police department prior to being served with disciplinary charges, Justice Canfield commented that:

Notwithstanding the New York State and Local Retirement System's use of the word "retirement" to describe the cessation of employment, there simply is no basis for concluding that Farrell "retired" from the Rensselaer Police Department.

An employee may advise his or her employer that he or she intends to retire as a matter of courtesy. To effect a retirement, however, the individual must file an application for retirement benefits with his or her retirement system. The employer does not have any authority to approve or disapprove such a retirement application submitted by the individual.**

In fact, there is no requirement that an individual who is eligible to receive a retirement benefit actually apply for such a benefit should he or she resign. He or she, if eligible, may elect to "vest" and defer his or her retirement until a later date.

Here, said the court, Rensselaer had a resolution in place providing for its continuing to pay for health insurance benefits "for those who retire from service...." The resolution, however, "does not expressly extend that benefit to those who are dismissed from service."

Justice Canfield's conclusion: Rensselaer's refusal to pay for Farrell's health insurance benefits "is consistent with the terms of the resolution."

* The decision implies that Farrell applied for, and was granted, a retirement allowance following his dismissal.

** Typically, a member of a public retirement system of this State must file his or her application for retirement at least 30 days but not more than 90 days prior to his or her effective date of retirement.

Disciplinary probation

Disciplinary probation
Feliciano v Safir, Supreme Court, [Not officially reported]
Garnett v Safir, 253 A.D.2d 700, Motion for leave to appeal denied, 92 N.Y.2d 817

The Feliciano Case:

Although the specific events underlying the Feliciano case are but rarely encountered, the decision demonstrates that an employee’s “disciplinary probation status” may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status.

Nelson Feliciano became a New York City police officer when the New York City Transit Authority Police Department [TAPD] was merged with the New York City Police Department [NYPD] in April 1995. Feliciano was serving a “dismissal probation” as a result of his settlement of disciplinary charges that had been filed against him by TAPD when the merger took place.

NYPD required Feliciano to sign a waiver allowing it to assume jurisdiction over the disciplinary charges as a condition of his transfer to NYPD.

NYPD dismissed Feliciano effective October 30, 1997 without holding a pre-termination hearing because of his alleged misuse of sick leave.

Feliciano had called in sick on April 30, 1997. When an officer from the NYPD’s Absence Control and Investigations Unit (“ACIU”) appeared at Feliciano’s house at about 2:00 p.m. the next day, “Feliciano was inexplicably not at home.”

Feliciano called the ACIU and represented to one of the ACIU officers that he had a valid medical pass which excused his absence from his home between the hours of 4:00 p.m. and 8:00 p.m. through May 1, 1997. Upon checking, ACIU learned that Feliciano’s medical pass expired on April 23, 1997. When confronted with this information, Feliciano apologized for his “misstatement” about the validity of his medical pass. Ultimately NYPD dismissed Feliciano.

Claiming that “[w]ithout the waiver, the disciplinary matter could have been resolved in a much more favorable manner and ... [he] would not have been on probation,” Feliciano sued. He asked the court to order his reinstatement with back salary and benefits. In addition Feliciano contended that [1] Safir acted arbitrarily and capriciously by dismissing him without benefit of a pre-termination hearing; [2] the penalty imposed was excessive; and [3] the decision to terminate him was made in bad faith.

Justice Cozier dismissed Feliciano’s petition, noting that “[u]nless there is a demonstration of bad faith or a constitutionally or statutorily impermissible purpose, the Commissioner has broad discretion to terminate probationary employees at any time, without stating a reason, and without a pre-termination hearing.”

The decision notes that Feliciano failed to comply with sick-leave regulations, an infraction which was subject to summary dismissal. As Feliciano had abused the NYPD’s sick leave regulations, which go directly to his ability to perform his job duties in a satisfactory manner, Justice Cozier concluded that because Feliciano was a probationer, a pre-termination hearing was not required and ruled Feliciano’s dismissal from his position with NYPD lawful under the circumstances.


The Garrett Case:

The facts in the Garrett case are more typical of the disciplinary probation situations.

Renee Garrett, another New York City police officer, was found guilty of various disciplinary charges and was suspended without pay for 60 days. She was also placed on a “one-year disciplinary probationary dismissal” effective January 24, 1997. On July 9, 1997, the Commissioner terminated her.

According to the decision, Garrett’s disciplinary probation was imposed after she was found guilty following allegations that [1] she was absent without permission from her assigned post; [2] she failed to perform her duties as directed; and [3] she engaged in an oral altercation and was discourteous to a superior officer.

Garrett sued, challenging the underlying disciplinary action and penalty and, in addition, contending that she was unlawfully terminated as a probationer and that she was dismissed in bad faith.*

The Appellate Division, First Department, upheld Garrett’s dismissal, commenting that “her termination within the probationary period was validly premised upon misconduct predating the commencement of the probationary period.” It noted that she had been found guilty of charges filed against her and that “the penalty of probationary dismissal does not shock our sense of fairness, particularly in light of [Garrett’s] less than exemplary service record.”

The court then said that Garrett’s probationary termination was justified by an incident during the probationary period. According to the decision, Garrett was “late in relieving another officer from her post.”

Accordingly, Garrett had no right to a pre-termination hearing under the circumstances. As to Garrett’s claim that her termination was made in “bad faith,” the Appellate Division simply noted that “there is no credible evidence to support [her] allegations.”

* Garrett had challenged both the disciplinary determination of January 24, 1997 and her probationary termination of July 9, 1997. Both actions were consolidated and considered in this appeal.

The text of the opinion is at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/disciplinary-probation.html

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Review of an administrative determination by courts is limited in scope

Review of an administrative determination by courts is limited in scope
Matter of Reza v NYC Department of Parks & Recreation, 2007 NY Slip Op 30246(U), Supreme Court, New York County, Judge Charles J. Tejada [Not selected for publication in the Official Reports]

Mohammad Reza sued his employer, the NYC Department of Parks and Recreation [DPR], seeking reinstatement to his position, restoration of certain annual leave credits and other relief, including appointment to a higher-grade position.

Supreme Court Justice Tejada said the scope of a court’s review of a Department’s administrative determination is limited. In reviewing an agency’s decision, the only issue to be resolved by a court is “whether a determination was made in violation of lawful procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.”

In a memorandum dated November 28, 2005, Reza’s superiors directed him to refrain from performing duties outside the scope of his job description. This memorandum, said the court, was in the nature of “a clarification of his position within DPR and, as such, subject to only limited judicial review, and will not be disturbed in the absence of a showing that [it is] wholly arbitrary or without any rational basis”.

Reza, said the court, had to demonstrate that the determination is either arbitrary, capricious or afflicted with an error of law sufficient to overcome the great deference courts will typically give to an administrative agency’s decision in order to prevail. Judge Tejada decided that he failed to meet this test.

Further, as a provisional employee of the DPR, Reza did not have any entitlement to the higher-level position of Associate Project Manager, Level III, and rather then being “fired,” was ordered to perform only the duties required of him by his job description as an Associate Engineering Technician, Level II. This was well within the Department’s authority to command said the court.

Reza also claimed “retaliation” as a result of his having written to the Commissioner complaining about his superior’s “actions against him” in violation of his First Amendment Rights.
Judge Tejada said that a public employee who seeks to prevail in his or her First Amendment claim of employment retaliation must show that: (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment decision, so that it can be said that the plaintiffs speech was a motivating factor in the adverse employment action.

In the opinion of the court, Reza failed to meet this burden as well and denied his petition.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30246.pdf

Termination of a probationer

Termination of a probationer
Miller v Village of Wappingers Falls, App. Div., 289 A.D.2d 209

In July 1998, Louis Miller, a registered Republican active in local party matters, was appointed as the zoning administrator of the Village of Wappingers Falls by the then Republican-controlled Village Board. Miller's appointment was apparently subject to his satisfactorily completing a probationary period. In April 1999, presumably while still serving as a probationer, Miller was terminated from his position by the newly elected Democratic administration. Miller sued, contending that he was improperly terminated from his employment because of his membership in the Republican Party.

The Village's motion for summary judgment was rejected by a State Supreme Court justice. In response to the Village's appeal challenging the lower court's denial of its motion, the Appellate Division, citing Negron v Jackson, 273 AD2d 241, said that proba­tionary employee may not be fired for constitutionally impermissible reasons. Here, said the Appellate Division, Miller alleged a "constitutionally impermissible reason" for his termination -- his political affiliation.

The court rejected the Village's argument that because Miller was a probationary em­ployee it had the right to terminate his employment for any reason or for no reason.*

The Appellate Division said that "given the nature of [Miller's] allegations, it was incumbent upon the [Village] to present admissible evidence in Supreme Court showing that [Mil­ler's] political affiliations did not play a substantial part in the decision to terminate him."

In sustaining the lower court's dismissal of the Village's motion, the Appellate Division also noted that the Village "failed to even address these claims before the Supreme Court." This, said the court, meant that it did not carry its burden of proof and its motion was properly denied.

In its appeal the Village apparently also argued that Miller was "a policy-making em­ployee cloaked with considerable discretion, and thus his political affiliation was a relev­ant consideration" insofar as his dismissal was concerned. The Appellate Division said it could not consider this argument "as [the Village] improperly seeks to interject new facts and theories for the first time on appeal."

Terminations alleged to be based on political affiliation frequently are stated in terms of a violation of the individual's rights under the federal Constitution. The general rule in such cases is that a public employee may not be removed from his or her public employ­ment solely on the basis of his or her political affiliation unless there is proof that the individual's political affiliation was a critical element to his or her performance of the duties of the position.

Among the significant cases addressing this issue are Elrod v Burns, 427 US 347; Branti v Finkel, 445 US 507 and Rutan v Republican Party of Illi­nois, 497 US 62.

* Although the decision does not address Miller’s probationary obligation, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

Use of a videotape as evidence in disciplinary hearing

Use of a videotape as evidence in disciplinary hearing
Paulin v City of New York, App. Div., 288 A.D.2d 153

On of the elements in the Paulin case was the use of a videotape in a disciplinary hear­ing.

Fred Paulin, a New York City police officer, was charged with misconduct. The Police Commissioner found Paulin guilty of having stolen merchandise from a store and imposed the penalty of dismissal.

In dismissing Paulin's appeal, the Appellate Division ruled that the Commissioner's decision was supported by substantial evidence, including a videotape of the incident.

Further, said the court, under the circumstances, imposing the penalty of dismissal "does not shock our sense of fairness."

June 20, 2010

Defending and indemnifying employees

Defending and indemnifying employees
Zimmer v Town of Brookhaven, 247 A.D.2d 109

When a public employee is sued in connection with his or her performance of, or his or her failure to perform, official duties, usually he or she is entitled to look to his or her employer to provided him or her with representation in the proceeding. The Zimmer case points out one situation in which the employer may lawfully refuse to provide such assistance to an employee otherwise eligible for such legal assistance or indemnify him or her if he or she is held liable for damages.

Donald Zimmer was indicted and tried in federal district court for allegedly interfering with commerce by threats or violence, in violation of the Hobbs Act [18 USC 1951], while serving as member of the town council, Town of Brookhaven.*

Zimmer was acquitted and asked the Town to reimburse him for the legal expenses he incurred in defending himself in this federal action. When the Town rejected his claim, Zimmer sued, contending that the Town was under a “prior” or “pre-existing” legal obligation to reimburse him.

The Town initially had provided, and paid for, an attorney to defend Zimmer in the federal action. When the attorney withdrew, because of a “conflict of interest,” Zimmer employed his own attorney, whom he paid to defend him. Zimmer said that “the Town indicated to [him] that his legal fees and expenses would be ‘taken care of’.”

The Appellate Division pointed out a number of critical elements that must be resolved when “a public employee looks to the public purse to be defended, compensated, indemnified, or reimbursed in connection with legal proceedings brought against that employee....”

1. The “long-standing and frequently-invoked constitutional prohibition against the use of public moneys for private purposes (New York State Constitution, Article VIII, Section 1);”

2. In “appropriate cases and under fixed criteria, an employer, including a governmental employer, should stand behind an employee who is sued for acts performed while in the course of a duty for that employer....”

3. The public employer’s obligation to defend or indemnify an employee is limited to claims that fall clearly within the particular statutory authorization.

4. The existence of a pre-existing, legislative basis for the employee’s claim for defending or indemnifying him or her in litigation.

The basic statutory provisions protecting employees who are sued in connection with the performance of their official duties are Sections 17 and 18 of the Public Officers Law.

Section 17 established criteria for the defense and indemnification of State officers and employees against claims arising out of their public employment or duties while Section 18(2)(a) allows a municipality to adopt a local law, rule, regulation, resolution or bylaw providing for the defense and indemnification of its officers and employees who are sued as a result of their official acts or omissions.

Brookhaven had adopted a local law, Local Law 27, which provided for the “defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties.”

In its defense, the Town pointed out that while Local Law 27 provides authorization for the Town to defend and indemnify an officer or employee in civil cases, Zimmer was indicted on criminal charges.

In rebuttal, Zimmer contended that in the Security and Law Enforcement Employees case, (96 AD2d 976, affirmed 61 NY2d 965), the court allowed a public employer to compensate an employee for legal expenses in defense of criminal charges, even in the absence of a pre-existing legislative enactment.

The Appellate Division, said that Zimmer’s reliance on the Security Employees decision was misplaced because reimbursement for the expenses incurred in defending an employee in a criminal action in that case was based on a provision in a “pre-existing collective bargaining agreement, which expressly authorized it”.

In Zimmer’s situation, said the court, “there is no statute, ordinance, resolution, or anything approaching the formalities of a negotiated, pre-existing agreement of the kind” that would allow it to hold that the Town had to defend or indemnify Zimmer.

Further, the court ruled, even it were to credit Zimmer’s allegation that a town official or officials gave him assurances that the expenses would “be taken care of,” (1) no implied-in-fact contract was created under the circumstances present in Zimmer’s situation and (2) “[m]ore importantly ... no official had the authority to bind the Town or, by words or conduct, to enter into a contract to reimburse Zimmer.” Affirming the ruling by the Supreme Court, the Appellate Division dismissed Zimmer’s appeal.

Representation of an employee by a private attorney may become an issue in other situations as well.

In Foody v Rockland County, 253 A.D.2d 879, the Appellate Division, Second Department, considered whether John Foody, a Rockland County employee, was entitled to be represented by his own attorney when he and the county were named as defendants in a lawsuit.

Chapter 45 of the Laws of Rockland County provided for the defense and indemnification of municipal employees “who have been jointly sued with the County.” Foody wanted to substitute his county-selected attorney with another of his own choice and have the county pay his attorney’s “reasonable legal fees....”

One justification claimed for providing private representation in such cases is a potential, or actual, conflict of interest were the municipality’s attorney to represent both the municipality and the municipality’s employee.

The Appellate Division pointed out that Chapter 45 vests in the County Attorney the authority to decide whether a conflict of interest exists such that the employee is entitled to independent representation to be paid for out of County funds.”

But, said the court, even if the County Attorney determines that such a conflict exists, Section 45 authorizes the County Executive, not the employee, to select the employee’s private attorney. In other words, the employee does not have the right to designate his or her own attorney in such situations.

* The Hobbs Act (18 U.S.C. § 1951) prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce.

The text of the decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/defending-and-indemnifying-employees.html

June 18, 2010

If a CBA sets out the rights of an individual to arbitrate an employer’s disciplinary decision, those rights may not be expanded by another article

If a CBA sets out the rights of an individual to arbitrate an employer’s disciplinary decision, those rights may not be expanded by another article
Fashion Inst. of Tech. v United Coll. Employees of Fashion Inst. of Tech., Local 3457, Am. Fedn. of Teachers, 2010 NY Slip Op 05329, 2010 NY Slip Op 05329, Appellate Division, First Department

The relevant collective bargaining agreement [CBA] between the Union and the Institute had separate and distinct Articles that were relevant in this action: one governing general "Grievances" and a second setting out a “Disciplinary Procedure."

The "Disciplinary Procedure" Article provided that "[n]o employee may be disciplined except for just cause." It further provided that a two-person disciplinary committee, consisting of one Institute representative and one Union representative would issue a recommendation as the disposition of the matter to FIT's President. Upon receiving the recommendation of the disciplinary committee the President "may take disciplinary action," which "may include, but is not limited to, reprimand . . ., suspen[sion] with or without pay, or termination."

The CAB further provided that "[i]f the President's decision is to terminate a part-time employee … the College and Union will refer the case to an outside arbitrator for final and binding determination." The Appellate Division then noted that although “the determination to terminate a part-time employee was expressly made subject to arbitration,” there was no similar provision making the President’s determination to suspend a part-time employee subject to arbitration.

When the Institute’s President suspended a “part-time employee,” Les Katz, without pay the Union filed a CBA grievance with FIT challenging the suspension and demanded the President’s decision be submitted to arbitration before the AAA. The Union alleged that the school had "[i]mproperly disciplined Les Katz in violation of the CBA." The Institute filed a petition pursuant to CPLR 7503(b) in Supreme Court seeking an order permanently staying the arbitration.

Supreme Court granted the stay and the Appellate Division sustained the lower court’s ruling that the Union’s claim was not subject to arbitration. The court explained that Katz was “cited, disciplined and suspended in accordance with the disciplinary procedures set forth” in the CBA’s Disciplinary Procedure Article, which “clearly govern in this case.” Significantly, the Disciplinary Procedure did not provide for arbitration of the President’s determination to suspend a part-time employee.

Addressing the union’s argument that the issue of whether Katz was properly suspended is subject to arbitration pursuant to the general Grievance Article, the Appellate Division said that “The reading of the contract proposed by the union, which would graft the procedures in [the ’Grievance’ provision Article] onto the disciplinary procedures in [the ‘Disciplinary Procedure’ Article] would render superfluous the provisions of [the Disciplinary Procedure Article that provided] for a limited right of arbitration for part-time employees only if they are terminated.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05329.htm

Concerning the so-called “Blue Wall of Silence”

Concerning the so-called “Blue Wall of Silence”
Diesel v Town of Lewisboro, CA2, 232 F.3d 92

While some might allege that there is a "blue wall of silence"* encouraged by certain individuals involved in law enforcement, rarely does one find a court decision that specifically addresses the concept.

Not so in the Diesel case. Here a New York State Trooper complained that his civil rights were violated when fellow Troopers failed to accord him a "blue wall of silence."

New York State Trooper Dennis Diesel, sued other members of the New York Division of State Police. Diesel claimed that he had cooperated with an internal affairs investigation involving alleged misconduct by other State Police officers. He alleged that in a subsequent, unrelated incident, -- he was found early one morning passed out or asleep behind the wheel of an official car -- he suffered retaliation as a result of his having cooperated in the internal affairs investigation by being subjected to:

1. An "excessive, prolonged and overzealous investigation" of the incident;

2. The failure of the investigating officers to extend to him a form of "professional courtesy" he terms the "blue wall of silence"; and

3. The officers involved in investigating the incident violating his rights under the First, Fourth and Fourteenth Amendments to the Constitution and New York state law.

Addressing the "blue wall of silence" issue, the Circuit Court said:

1. A selective enforcement claim under the Equal Protection Clause of the Fourteenth Amendment cannot rest on the allegation that police officers refused to close their eyes to another officer's serious misconduct in accordance with the tradition of the "blue wall of silence";

2. The investigation into Diesel's misconduct was reasonable as a matter of law both in its initiation and scope; and

3. Diesel failed to prove that he was subjected to retaliatory harassment where the alleged retaliation was a reasonable response to Diesel's own culpable conduct.

Accordingly, the court held that Diesel was not, as a matter of law, entitled to any damages and reverse that portion of the district court's judgment in favor of Diesel.

* The phrase "Blue Wall of Silence" has been popularly used to characterized the alleged unity exhibited by law enforcement personnel to limit or minimize their co-operation in an investigation where the target of the investigation is a police or other law enforcement official.

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