A public employee's freedom of speech with respect to statements made to the press

A public employee's freedom of speech with respect to statements made to the pressHarman v. City of New York, CA2, 140 F.3d 111.

Two New York City agencies, the Human Resources Administration [HRA] and the Administration for Children’s Services [ACS] adopted policies [Executive Orders 101 and 641] requiring employees to obtain agency permission before speaking to the media concerning any policies or activities of the agency.

The City claimed that the policies were necessary to (1) meet the agencies’ obligations under federal and state law to protect the confidentiality of reports and information relating to children, families, and other individuals served by the agencies; and promote the effective operation of the organizations.

Rosalie Harman and other employees challenged these policies on the grounds that they violated the First Amendment rights of the workers. A federal District Court judge agreed and struck down the policy. The Second Circuit Court of Appeals [New York] upheld the District Court’s ruling.

The case began after Harman, a CWA employee, was suspended because of her statements to ABC News concerning the death of a six-year-old, Elisa Izquierdo. It was alleged that the child was beaten to death by her mother. The child’s death became the subject of intense media scrutiny when it was revealed that CWA had received numerous reports about the child before her death.

The court found that Harman had been disciplined for stating to the press that “the workers who are considered the best workers are the ones who seem to be able to move cases out quickly,” and, “there are lots of fatalities the press doesn’t know anything about.”

In affirming the District Court’s ruling that the gag orders were unconstitutional, the Circuit Court said:

1. Individuals do not relinquish their First Amendment rights by accepting employment with the government.

2. The Supreme Court has recognized that the government “may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large. [U.S. v National Treasury Employees Union, 513 US 454].

3. In evaluating the validity of a restraint on government employee speech, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” [Matter of Pickering, 391 US at 568].

4. Pickering’s balancing test applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest” [Connick v Myers, 461 US 138].

5. Where its employee speaks on matters of public concern, the government bears the burden of justifying any adverse employment action [Rankin v McPherson, 483 US 378].

It was undisputed that many federal and state laws require ACS and HRA records, reports, and information relating to specific children or families, be kept confidential. In fact, disclosure of statutorily confidential information, or failure to take reasonable security precautions that leads to such disclosure, is a misdemeanor under state social service provisions.

Nevertheless, the Circuit Court concluded that the gag orders clearly aim at speech that is of considerable importance to the public. “Indeed,” the opinion notes, “discussion regarding current government policies and activities is perhaps the paradigmatic matter[s] of public concern.”

Harman’s speech, according to the decision, concerned the priorities and effectiveness of the CWA, and obviously is of interest to the public whom the agency serves. Therefore, the city bears the burden of demonstrating that the challenged policies are necessary to the efficient operation of the agencies.

Among the justifications advanced by the city was its assertion “that the agencies will not prohibit employees from commenting on the non-confidential operations of the agency once they have ensured that the proposed speech is consistent with the efficient and effective operation of the agency.” However, such conditions do not satisfy free speech requirements, said the Court, because “even according to this interpretation, the regulations clearly interfere with employees’ ability to communicate their views to the media.”

The kind of approval procedure mandated by the city is generally disfavored under First Amendment law because it “chills potential speech before it happens”; it allows the agencies to determine in advance what kind of speech will harm agency operations instead of punishing disruptive remarks after their effect has been felt. For this reason, the court decided, the regulations run afoul of the general presumption against prior restraint on speech.

The Circuit Court affirmed District Court’s decision, ruling that Executive Orders 101 and 641 were unconstitutional infringements on the First Amendment rights of city employees.

The full text of the opinion is posted at:
http://nypublicpersonnellawarchives.blogspot.com/

Using e-mail as evidence in disciplinary actions

Using e-mail as evidence in disciplinary actions
Strauss v Microsoft, USDC SDNY, Lexis 7433

Employers and employees are discovering that with the increased use of electronic mail [e-mail], records thought not to exist may be hidden in computer files. Accordingly, employers are now reviewing computer backup tapes to find evidence of employee misconduct for use in disciplinary actions while employees are using the same sources to discover incriminating evidence of employer wrongdoing such as unlawful discrimination or sexual harassment.

The Strauss case illustrates this trend. Strauss, an employee of Microsoft, alleging she was not promoted because of gender discrimination. Microsoft’s efforts to have her charges summarily dismissed failed when Strauss introduced “explicit e-mail messages from her supervisor” that she found on backup tapes during the discovery phase of litigation.

Courts are usually disposed to granting motions that “appear reasonably calculated to lead to the discovery of admissible evidence.” The fact that the material sought is in electronic rather than a traditional paper form has not been a barrier to approvals.

In another case, Davidian v O’Mara, [USDC TN, 2-97-0020] a newspaper asked a federal district court to allow it to obtain information stored on City of Cooksville [Tennessee] employee’s computer hard drives under the state’s Freedom of Information Law. The newspaper wanted to find out the “web sites” that may have accessed through the City’s computers by its employees by reviewing the “cookie files” stored on the drives.

Originally the city said the newspaper had to pay for the information -- over $300 -- but later decided to refuse to produce the information, claiming the computer files were not public records. However, “cookie files” are like “telephone logs” according to some attorneys involved in First Amendment litigation and therefore must be produced under “Freedom of Information.”

What about employee claims that “personal e-mail” is private and not subject to scrutiny by the employer. As this is still an issue unsettled by the courts, many employers are advising employees that:

1. Workers should not have any “expectation of privacy” with respect to any information, official or personal, prepared using the organization’s computer equipment; and

2. The employer may periodically monitor or review computer files prepared using company equipment.

In some case, unions have attempted to include “employee privacy” provisions in collective bargaining agreements.

Official misconduct

Official misconduct
People v Lynch, Rockland County Court, [Not selected for publication in the Official Reports]

Kevin Lynch, a member of a school board, was charged with “Official Misconduct” [Penal Law Section 195 et seq] as the result of his voting in favor of the district’s purchasing health insurance policy recommended by a consultant hired by the school district. Lynch allegedly had a “secret arrangement” with the consultant and his employer, the court said. After the district had accepted the health insurance plan recommended by the consultant, Lynch “received approximately $107,000 in commissions....”

Section 195.02 provides that a public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit he or she knowingly refrains from performing a duty that is imposed upon him or her by law or is clearly inherent in the nature of his or her office.

Lynch contended that Section 195.02 was unconstitutionally vague because there the law did not set out a standard that could be used to determine conduct that was “clearly inherent in the nature of an office.”

Essentially Lynch argued that the Section 195.02 “fails to provide a clear and unmistakable warning as to the acts which will subject one to criminal punishment.” Judge Kelly, however, said “the essential characteristic of official misconduct is that public servants are under an inescapable obligation to serve the public with the highest fidelity.”

Did Lynch’s vote on the health insurance contract constitute “official misconduct?” Judge Kelly thought it did, noting that “... the object of the official misconduct statute is to punish a breach of duty committed with the requisite culpable state of mind ....” Here, said the Court, the evidence reasonably supports the charge that Lynch failed to perform a “duty clearly inherent in the nature of his office.” In addition, said the Court, Lynch had an ethical obligation to perform said his duties free from conflicts and to disclose such conflicts.

According to the Court, Lynch took an oath of office and was provided with an ethics policy enacted pursuant to General Municipal Law Section 806(a). This policy required that, “[i]f [Lynch] participates in the discussion or gives official opinion on any legislation before the Board he will publicly disclose on the official record the nature and extent of any direct or indirect financial or other private interest he has in such legislation.” The policy also prohibited Lynch from “solicit[ing] or accept[ing] any commission, expense, paid trips, or anything of value from individuals or companies who are vendors or potential vendors to the district....”

Judge Kelly concluded that a school board trustee has a duty to procure insurance for the school district "free from conflict” and dismissed Lynch’s motion seeking to have the criminal action against him quashed.

The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/

Individual's refusal to participate in a PERB administrative hearing deemed a failure to prosecute his or her complaint

Individual's refusal to participate in a PERB administrative hearing deemed a failure to prosecute his or her complaint
Armata and United Federation of Teachers, 30 PERB 4713

Rebeca Armata elected not to attend the scheduled PERB hearing. Her complaint was dismissed on the grounds that she had failed to prosecute it. Armata then filed charges with PERB alleging that the United Federation of Teachers had violated its duty of fair representation.*

Armata had boycotted a PERB hearing. She had asked PERB’s Administrative Law Judge [ALJ], Angela M. Blassman, to issue nine subpoenas to compel the attendance of witnesses she wished to question such as the school district’s director of personnel, UFT officers and others. Blassman issued a subpoena for one of the witnesses but denied Armata’s other requests.

Armata told the ALJ that she objected to Blassman’s decision and said that “if PERB changes its position (and issues the remaining subpoenas) ... we’ll be happy to attend the hearing.” When Armata failed to appear, the UFT [and the School District] moved to dismiss the charges based on Armata’s failure to appear.

Blassman, characterizing Armata’s action as a “failure to prosecute,” granted the motion, commenting that Armata “flatly refused to appear for the hearing unless I changed my ruling regarding her subpoena requests.”

Blassman’s rationale for the dismissal was that “a party’s intentional refusal to appear at a hearing unless PERB rules in that party’s favor evidences an intentional disregard of PERB’s process and leaves me no choice but to dismiss the charge.” According to Blassman, “to hold otherwise would improperly allow a party, instead of PERB, to control the conduct of PERB’s proceedings and would permit a party to hold PERB and all other parties hostage to that party’s requests.”

The case raises the question: What should a party do if the ALJ declines to rule in its favor concerning procedural issues such as issuing a subpoena? The answer is simple. The proper course of action is for the party to proceed with the hearing and prosecute, or defend, the charge. If necessary, the party could appeal the ruling to PERB, including the denial of any of its procedural motions by the ALJ.

* The New York City Board of Education was also involved in this case as a “statutory party pursuant to Section 209-a.2 of the Civil Service Law” and had filed an answer denying all of Armata’s material allegations.

Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit

Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit
CSEA Local 1000, v PERB, Appellate Division, 248 A.D.2d 882

May a public employer unilaterally seek to reallocate certain titles to a higher salary grade, if such an action serves to remove employees from a bargaining unit?

Monroe County submitted a proposal to the County Legislature to upgrade county physical and occupational therapists. Approval of the proposal would remove 12 of the positions from the negotiating unit represented by CSEA.

CSEA Local 1000, contending that Monroe could not do this without first negotiating the proposed change with the union, filed an unfair labor practice charge with PERB. The complaint alleged that “the County engaged in bad-faith negotiations” and that its “tactics” were eroding the bargaining unit.

PERB reversed an administrative law judge’s ruling that the County violated Section 209-a(1)(a) and (d) when it unilaterally reallocated these titles to higher salary grades and the unilateral wage increase applied to bargaining unit titles was a per se violation of Section 209-a(1)(a).

PERB held that the reallocation of employees to a higher salary grade was not a mandatory subject of collective bargaining. In response, CSEA appealed to challenge PERB’s findings and conclusions.

The Appellate Division probed PERB’s rationale for its ruling and found it was based on an earlier decision by the Appellate Division holding that the “allocation of positions to salary grade is primarily related to a ‘mission’ of an employer and not to terms and conditions of employment” [Evans v Newman, 71 AD2 240].

The court found this persuasive and upheld PERB’s decision. Relying on the Evans decision, PERB properly found that local governments should not be compelled to negotiate allocations of positions to salary grades because such decisions are “an essential aspect of the level and quality of service to be provided by a public employer.”

The Appellate Division, noting that its power to overturn a PERB decision is limited as PERB has been given the authority to determine whether a particular matter is a term or condition of employment, said that PERB's determination will be judicially upheld so long as PERB’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections.

The Appellate Division also rejected CSEA’s argument that the reallocation and removal of 12 employees from the negotiating unit that resulted from the change was the product of improper motives on the part of the County.

According to the court, "it is clear from the record that the decision to reallocate these titles to higher pay groups was motivated solely by the County's demonstrated need to provide competitive salaries for these positions thereby correcting past recruitment and retention problems.

Correction officer charged with disobeying an order to take a post assignment

Correction officer charged with disobeying an order to take a post assignment
NYC Department of Corrections v Callabrass, OATH Index #1981/10

Regina Callabrass, a New York City correction officer, was served with a number of disciplinary charges alleging, among other things, that she was guilty of disobeying an order to take a post assignment.

OATH Administrative Law Judge Tynia Richard recommended that the charge that the Callabrass disobeyed an order to take an assignment be dismissed. ALJ explained that when Callabrass objected to the assignment, the supervisor did not repeat the directive but, instead, commenced looking for another correction officer to accept the assignment.

With respect to Callabrass’ threat “to call in sick” when she received the unwanted assignment, the ALJ said that this constituted “conduct unbecoming an officer.” In addition Judge Richard found that Callabrass had made a false or misleading logbook entry.

After considering Callabrass’ long service record with no prior discipline, ALJ Richard recommended the imposition of a 5-day suspension without pay as the penalty for these two acts of misconduct.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1981.pdf

Oath of office must be timely filed

Oath of office must be timely filed
Formal Opinion of the Attorney General, 98-F6

The filing of a timely oath of office is critical to an individual’s lawfully holding public office. The inter-relationship of the eligibility of a candidate to assume elective office and the filing of the required oath was addressed by the Attorney General in his Formal Opinion 98-F6.

A candidate for election to the Supreme Court, if elected, would become qualified for the position on January 24. His term of office, however, would commence on January 1. If elected, could the candidate lawfully file the required oath of office upon becoming qualified for the post on January 24?

Pointing out that Section 30 of the Public Officers Law states that an elective officer must file his or her oath of office within thirty days of the beginning of his or her term of office, the Attorney General concluded that in this instance filing the required oath between January 24, and January 30, would meet the Constitutional mandate [Section 1, Article XIII] that a public officer file his or her oath before undertaking the duties of the office.

What happens if the required oath is not filed within the 30-day period allowed under Section 30? The office is declared vacant.*

Where are such oaths to be filed?

1. The oath of every State officer must be filed with the Secretary of State; the oath of a municipal officer, including an officer of a school district, with the clerk of the jurisdiction.

2. The oath of all other officers, including library trustees, and officers of a BOCES, is to be filed with the county clerk of the county in which he or she resides. In addition, judicial officers of the unified court system must file an additional oath of office with the Office of Court Administration.

As noted above, the officer’s failure to file a timely oath results in a vacancy in the office by operation of law as the ruling in Vetere v Ponce demonstrates. Patrick A. Vetere, ready to commence his third four-year term as a member of the Harrison Town Council and Village Trustee, failed to file his oath of office within the 30-day period expiring February 1, 1996 as required by Section 30 of the Public Officers Law.

The town clerk declared Vetere’s office vacant on February 19 because of Vetere’s failure to file his oath of office. Although Vetere filed an oath of office on February 23, a few weeks later the Town Council and Village Trustees held a special meeting at which Benjamin DeForce was appointed to the vacancy.

DeForce subsequently resigned from the position and Vetere was appointed to the vacancy. Vetere then attempted to have the “certificate of vacancy” prepared by the town clerk on February 19 annulled and sought a declaratory judgment by a State Supreme Court justice that he was now entitled to a full four-year term of office as a result his reelection the previous November.

Supreme Court Justice Nicholas Colabella ruled that there was no statutory authority for issuing such a judgment. This means that Vetere will have to run for election for the remainder of the term to which he had already been elected. The decision states that “notwithstanding equitable considerations and the [Town’s] consent to reinstatement, the court can only direct reinstatement in the event it finds the petitioner was improperly removed as a matter of law.”

As Vetere’s removal was held to be proper, the Court dismissed his petition.

* Section 30 excuses the failure to file the oath within the 30-day period if the individual “was on active duty in the armed forces of the United States and absent from the county of his [or her] residence at the time of his [or her] election or appointment....”

Burden of proof of the charges of alleged misconduct never shifts to the individual served with disciplinary charges

Burden of proof of the charges of alleged misconduct never shifts to the individual served with disciplinary charges
NYC Department of Sanitation v Torrence, OATH Index #2015/10

Leo Torrence, a New York Department of Sanitation, worker was required to possess a valid commercial driver's license. His commercial driver’s license was suspended for over one year while he was on a long-term line-of-duty injury leave.

The Department charged Torrence with violating its rule that all required licenses must be kept valid at all times based on its General Order 2008-14 which provides that a disciplinary complaint will be filed if, after ten calendar days from the date of notification that an individual’s license has been suspended, the employee “fails to restore it.”

Although Torrence testified that he was unaware that his license had been suspended while he was on leave and did not learn of the suspension until he applied to have it renewed, Sanitation contended that it is not required to prove that Torrence had received notice of the suspension his license to sustain the charges it had filed against him.

Rather, argued the Department, Torrence was required to prove that he did not receive any notice from Motor Vehicles that his license was suspended to rebut the charge. In other words, Sanitation contended that Torrence had the burden of "proving a negative."

Oath Administrative Law Judge Faye Lewis disagreed, ruling that placing the burden of proof on Torrence in this instance would impermissibly shift the burden of proof in the disciplinary action to the accused in contrast to its being the burden of the charging party. Lewis said that Sanitation was required to show that Torrence had received appropriate notice from Motor Vehicles that his license was suspended and then did nothing within the time permitted to renew it.

Simply stated, the burden is always on the employer to prove the allegations set out in the disciplinary charges filed against the employee.

ALJ Lewis also rejected the Department’s argument that the valid license requirement is a strict liability rule as contrary to the basic precept that a finding of misconduct requires some showing of fault by the employee.

Lewis recommended that the charges filed against Torrence be dismissed.

The text of the decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2515.pdf

Retiree rights under an expired collective bargaining agreement

Retiree rights under an expired collective bargaining agreement
Myers v City of Schenectady, 244 A.D.2d 845, Motion for leave to appeal denied, 91 N.Y.2d 812

In Myers the Appellate Division ruled that under certain circumstances retirees may be entitled to benefits flowing from collective bargaining agreements that have expired.

The case arose after the City of Schenectady decided to change its reimbursement of Medicare premiums policy. For many years the city had encouraged its retirees to enroll in Medicare as their primary health insurance carrier upon attaining age 65. Part B of Medicare required enrollees to pay a premium for coverage.

The city promised in collective bargaining agreements to reimburse the retirees the full cost of any Medicare premium. If a retiree declined to enroll in Medicare, the city would provide him or her with “the same fully paid health insurance coverage as it provided its eligible employees.”

In March 1994 the city announced that it would only pay 50 percent of the cost of Medicare Part B to those who had enrolled in Medicare. Then the city advised retirees that effective June 1994 it would cease all reimbursements for Medicare.

A number of retirees sued, contending that they had a vested contract benefit to “fully paid health insurance” and the City could not unilaterally discontinue its reimbursement of their Medicare premiums. They contended that under the terms of the several collective bargaining agreements in effect when they retired, they were entitled to “the same fully paid Health Insurance coverage” as was available to “all eligible employees.”

The Appellate Division sustained a lower court’s ruling that the city had a contractual obligation to provide the retirees with fully paid health insurance, rejecting Schenectady’s argument that “the agreements themselves had very clear durational limits.”

The court gave considerable weight to “past practice” in determining the rights of individuals claiming benefits or rights flowing from an expired agreement. The city had continued to pay benefits under expired agreements for 19 years, the court noted.

This made it difficult for the city to argue it only intended to give retirees the Medicare benefit for the duration of the contract. “[T]here is no surer way to find out what parties meant than to see what they have done,” the court said.

Schenectady’s “own 19-year practice of continuing to provide fully paid health insurance coverage to [its retirees], even after the expiration of the various collective bargaining agreements ... [constitutes] very substantial evidence that the provisions [of the expired agreements] in question were intended to provide benefits to retirees for the entire period of their retirement,” the court said.

Pre-determination hearings not required unless a deprivation of a property or liberty interest is threatened

Pre-determination hearings not required unless a deprivation of a property or liberty interest is threatened
Taylor v NYS Dept. of Correctional Services, 248 A.D.2d 799

A psychologist advised a correctional facility’s superintendent that State Corrections Officer Mark Taylor “was dangerous and may lose impulse control at any time.” Taylor “became belligerent and abusive” when the psychologist refused to give him a copy of a report that he had prepared for Family Court. Taylor refused repeated requests to leave the psychologist’s office and ultimately police officers were called and escorted him from the office.

The superintendent then prohibited Taylor from carrying a concealed weapon while off-duty.*

Taylor complained that he was denied due process because he was not provided with a “predetermination hearing” before the superintendent prohibited him from carrying a weapon while he was off duty

The rules of the state Correctional Services Department allow it to prohibit an employee from carrying a weapon while off duty if it determines “the employee’s mental or emotional condition is such that his or her possession of a weapon represents a threat to the safety of the employee, the facility or the community.”

According to the Appellate Division’s ruling in the Taylor case, the right to a pre-determination hearing depends on whether or not the individual can demonstrate that administrative decision constituted involved some deprivation of a “property interest” or a “liberty interest.” The Appellate Division said the superintendent had not deprived Taylor of any such “liberty interest.”

The Court next addressed the “property interest” aspect of the case. How does an individual establish a property interest? By showing, said the Court, that he or she has a “legitimate claim of entitlement to it.”

The Appellate Division pointed out that it had previously ruled that the exemption set out in Section 265.20 “is not a vested right.” Accordingly, it did not constitute a property interest for the purposes of invoking claims to any right of due process.

Finding that the superintendent had a rational basis for the action and thus was neither arbitrary nor capricious, the Appellate Division dismissed Taylor’s appeal.

* Section 265.20 of the State Penal Law gives State correction officers a statutory exemption from prosecution for criminal possession of a weapon.