A disciplinary hearing determination cannot be annulled by the court if the record supports the determination

A disciplinary hearing determination cannot be annulled by the court if the record supports the determination
Marden v Town of Bedford, 249 A.D.2d 547

The Town of Bedford Supervisor asked the Town’s Chief of Police, David M. Marden, to provide him with a copy of a report concerning alleged police misconduct. When the chief failed to comply with the directive, a number disciplinary charges were served on him. Among these were charges that alleged that Marden failed to comply with a lawful order to provide the report on five occasions: February 12, 16, 23, 27 and 28. Found guilty of misconduct, Marden was dismissed from his position.

Marden appealed. The Appellate Division said that Marden could not be guilty of insubordination on February 12 and 16, because the report in question had not been completed until February 21. Accordingly, the finding of guilt concerning charges involving these dates were not supported by substantial evidence.

The Appellate Division sustained the findings of misconduct with respect to Marden’s refusal to comply with the Supervisor’s directives on February 23, 27 and 28.

The court said an administrative determination made after a hearing cannot be annulled unless it is shown that there is no substantial evidence in the record to support the determination. Here it was found that the hearing record supported the determination that Marden “willfully refused to comply with a proper directive to turn over the investigative report....”

As to the penalty imposed, dismissal, the Appellate Division held that the penalty satisfied the Pell standard [Pell v Board of Education, 34 NY2 222] as Marden’s dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness.

Public employees personal E-mails exempt from disclosure from FOIL

Public employees personal E-mails exempt from disclosure from FOIL
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The Wisconsin Supreme Court held in Schill v. Wisconsin Rapids School District, 2010 WI 86 (July 16, 2010), that purely personal e-mails of public employees sent from workplace computers and e-mail accounts are protected from disclosure to a third party under the state Public Records Law. While the justices differed in whether such emails are even public records, a majority of the court determined that a public records custodian “should not release contents of emails that are purely personal and evince no violation of law or policy.”

This is a significant decision. Few businesses could operate today without the use of email. It is also likely that employees will sometimes use an employer's email system for personal use. Whether an email is “purely personal” will be based on a case-by-case determination, as the court makes clear that the contents of apparently personal e-mails could require disclosure if the email has some connection to a government function.

The decision involves only disclosure of personal email to third parties under the Public Records Law. The case does not involve the right of government employers to monitor, review or have access to the personal emails of public employees using the government email system.

Law review commentary on this important subject would be most welcome.

The Court’s complete opinion can be found at:
http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=52285
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Confidentiality of police records

Confidentiality of police records
Baez v City of New York, NYS Supreme Court, [Not selected for publication in the Official Reports]

A number of law enforcement agencies have procedures similar to those of the New York City Police Department Patrol Guide Section 118-9, which compels an officer to participate in an interview process coupled with the promise that the statement provided by the officer will not be used against him or her in any criminal proceeding. Characterized as GO-15 or IAD interviews, these NYPD statements are typically comprehensive and provide a substitute for a deposition.

In the Baez case New York State Supreme Court Justice McKeon set out the guidelines usually followed with respect to the release of such statements to the press and, or, to the public.

Justice McKeon said that the release of such records is governed by three statutes: Public Officers Law Section 87 (Freedom of Information Law or FOIL); Civil Rights Law Section 50-a (Right of Privacy for personnel records of police officers and others); and CPLR Section 3101 (Scope of Disclosure).

As to FOIL, Justice McKeon held that Section 87 allows access by any member of the public to governmental agency records, unless they are specifically exempted from disclosure by statute or constitute inter-agency or intra-agency materials, which are not inter alia final agency policy or determinations. He concluded that these types of records fall within that exemption from disclosure to the public under FOIL as predecisional interagency materials.

Civil Rights Law Section 50-a, said Justice McKeon, declares personnel records of police officers to be confidential material, not subject to disclosure without the express written consent of the officer or as mandated by lawful court order. It was noted, however, that the use of such records by a governmental entity, such as releasing summary of internal investigation of instances of police misconduct, is not precluded by Section 50-a because that use is unrelated to the purpose of the statute.

Justice McKeon next considered CPLR Section 3101, the discovery statute. This section, it was noted, provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.” The Court concluded that based on the protections provided by these statutes, “GO-15 statements and IAD records are considered confidential per statute unless they are released through consent or by lawful court order.” Justice McKeon also observed that “confidential” in Civil Rights Law Section 50-a is analogous to “privileged” within the meaning of CPLR Section 3101.

Justice McKeon also ruled that such statements are exempted from disclosure to the general public under the Freedom of Information Law, Public Officers’ Law Section 87.

The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/

PERB may elect to defer its consideration of unfair labor practice charge

PERB may elect to defer its consideration of unfair labor practice charge
PBA and Village of Ossining, 30 PERB 4711

PERB sometimes elects to defer considering unfair labor practice charges filed by an individual or an organization. It typically does so when there is some other procedure available that could address and resolve the issues that motivated the filing of the charge in the first instance. The Ossining PBA case provides an example of such a situation.

Ossining Chief of Police Joseph Burton “unilaterally changed the work schedule” of PBA unit members in an apparent effort to avoid paying holiday pay. Had the “natural rotation” of the work chart had not been altered, certain officers would have earned holiday pay.

The PBA protested the change and filed an unfair labor practice charge with PERB. PERB discovered that the PBA had also filed contract grievance concerning the matter, however.

The parties agreed to defer pressing the issue before PERB pending the resolution of the grievance.

PERB Administrative Law Judge Sandra M. Nathan observed that “it is appropriate to defer deciding whether the [Taylor Law] precludes the exercise of jurisdiction by PERB, pending the outcome of the grievance which has been filed.” She “conditionally dismissed” the PBA complaint.

What would be the result if the PBA had not already filed a grievance?

Assuming (1) that a contract grievance procedure was available, (2) that the issue appeared appropriate for submission as a contract grievance, and (3) that these facts were disclosed to the administrative law judge, the ALJ probably would have conditionally dismissed the complaint and directed the parties to first submit the matter for resolution through the grievance procedure.

Final regulations for filing Form I-9, Employment Eligibility Verification to become effective August 23, 2010

Final regulations for filing Form I-9, Employment Eligibility Verification to become effective August 23, 2010
Source: 75 Federal Register 42575

Section 274A of the Immigration and Nationality Act, as amended (INA), see 8 U.S.C. 1324a, requires all U.S. employers, agricultural associations, agricultural employers, farm labor contractors, or persons or other entities that recruit or refer persons for employment for a fee, to verify the employment authorization and identity of all employees hired to work in the United States after November 6, 1986.

To comply with the law, an employer is responsible for the completion of a Form I-9, the Employment Eligibility Verification (Form I-9), for each new employee, including United States citizens.

The Department of Homeland Security has issued final regulations to provide that employers who are required to complete and retain the Form I-9, Employment Eligibility Verification may sign the form electronically and retain the form in an electronic format.

The final rule is effective August 23, 2010 and essentially requires that employers complete the required Form I-9 within three business days. The employer may use paper, electronic systems, or a combination of paper and electronic systems for this purpose.

The Form I-9, available to the public in numerous paper and electronic forms, since 1986, is now available online at the U.S. Citizenship and Immigration Services (USCIS) Web site as a Portable Document Format (.pdf) fillable and printable form. The form is posted on the Internet at http://uscis.gov/files/form/i-9.pdf.

In addition, the Handbook for Employers published by the Department of Homeland Security setting out instructions for completing the Form I-9 (a.k.a. the Employment Eligibility Verification Form) is posted on the Internet at:
http://www.bipc.com/images/newsletters/M-274_I-9_Handbook.pdf

The text of the Department of Homeland Security's Final Regulation is posted on the Internet at: http://www.federalregister.gov/articles/2010/07/22/2010-17806/electronic-signature-and-storage-of-form-i9-employment-eligibility-verification
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U.S. Department of Labor expands definition of “son” or “daughter” for FMLA purposes

U.S. Department of Labor expands definition of “son” or “daughter” for FMLA purposes
Source: Roetzel & Andress , Douglas M. Kennedy, Esq.
[http://www.ralaw.com/about.cfm?sp=overview ]

An Administrator's Interpretation Letter on June 22, 2010 from the Department of Labor has clarified the definition of son or daughter as it applies to an employee taking FMLA leave to care for a newborn, newly placed or sick child. Using the portion of FMLA referring to the term "in loco parentis," the DOL's letter states that one does not have to have a biological or legal relationship with the child to be able to take FMLA leave. One must look at factors like the age of the child, the degree to which the child is dependent on the person providing care, the amount of support provided and the extent to which duties commonly associated with parenthood are exercised.

The letter specifically refers to an employee caring for his or her unmarried partner's child, as well as a grandparent, aunt or uncle, as examples of those who could stand "in loco parentis," and also says that an employee must only provide "a simple statement asserting that the requisite family relationship exists" in order to support a request for leave.

Security records were properly admitted into evidence by disciplinary hearing officer

Security records were properly admitted into evidence by disciplinary hearing officer
Peil v Beirne, 72 AD3d 1095*

In this appeal the Appellate Division held:

1. Security records were properly admitted into evidence by disciplinary hearing officer.

2. The existence of another, alternative rational conclusion does not warrant annulment of the appointing authority’s conclusion that Peil was guilty of the charges preferred against him, citing Incorporated Vill. of Lake Success v New York State Public Employment Relations Board, 41 AD3d 599.

* Text of decision e-mailed to registered readers.

The status of the individual performing services for a public employer may be critical in determining liability

The status of the individual performing services for a public employer may be critical in determining liability
Czark v Hauppauge UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Czark case illustrates that the status of the individual performing services for a public employer may be critical in determining whether or not the public employer will be held liable for an injury to an individual.

A Hauppauge Union Free School District student complained that in the course of a school sports physical examination the examining physician “touched and fondled her breast.” The student and her mother sued the district and the physician allegedly involved. Hauppauge asked State Supreme Court Justice Floyd to dismiss it from the law suit, contending that (a) the physician alleged to have touched the student was “an independent contractor and not an employee of the school district” and that (b) the district “had no knowledge of any prior sexual propensities” of the physician.

Justice Floyd said that a school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties. Here, however, Justice Floyd ruled that the record clearly establishes an independent contractor status between the school district and the physician.

The defendant physician was the associate of the physician that was under contract with the district to provide medical services to the school district and was paid a scheduled fee for services performed. Also noted was the fact that the contracting physician was not named as a party to the action.

Accordingly, Justice Floyd dismissed the claims against the District for negligent supervision, negligent hiring and vicarious liability because, he said, “[t]here are no terms and conditions contained within this contract that would permit this Court to conclude that an employer/employee relationship had been established.”

The Court, however, refused to dismiss the suit filed against the physician by the student for the alleged battery and by her parent for the alleged “loss of services.”