Union dues a factor in a divorce proceeding

Union dues a factor in a divorce proceeding
Elizabeth A. v Hector S., NYS Supreme Court, Judge Bednar, [Not selected for publication in the Official Reports]

Would you think that union dues could be a factor in a divorce proceeding? It was in the case of Elizabeth A. v Hector S.

Hector was told that he had to pay $157.00 bi-weekly as child support. He objected, contending that the hearing examiner had miscalculated his adjusted gross income by neglecting to deduct his union dues from his gross income.

Judge Bednar ruled the hearing officer's calculations were correct. While the federal Internal Revenue Code allows a taxpayer to deduct union dues as a "miscellaneous itemized deduction," the Family Court Act [FCA] does not. Although FCA allows a limited number of exclusions from income when determining child support, union dues is not one of the enumerated deductions allowed by the Act in determining a parent's child support obligations.
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What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges

What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges
Response to an inquiry from a NYPPL reader

A NYPPL reader asks: If an individual served with disciplinary charges pursuant to Section 75 of the Civil Service does not file an answer to the charges and specifications, may the appointing authority impose the proposed penalty without holding a disciplinary hearing?

Although it appears that this specific question has yet to be litigated, a close reading of Section 75 suggests such an action by an employer would not survive judicial scrutiny.

Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.

In contrast, Section 75 is silent with respect to requiring the employee submit any answer to the charges.

This suggests that the individual may remain mute without jeopardizing his or her Section 75 rights.

Indeed, should the accused individual attend the disciplinary hearing and remain mute and present no defense, the employer would still be required to "prove" the alleged misconduct or incompetency.

Clearly, Section 75 provides that the burden of proving incompetency or misconduct ... (is) upon the person alleging the same. In other words, the failure of an employee to offer a defense does not absolve the employer of the duty to prove incompetence or misconduct before imposing disciplinary sanctions.

Indeed, it is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled.

Given that the courts require employers to conduct a disciplinary hearing being conducted pursuant to Civil Service Law Section 75 even if an employee fails to appear at the proceeding, it seems unlikely that the courts would approve imposing a penalty on an individual because he or she failed to answer the disciplinary charges filed by the appointing authority.

Moreover, under Section 75 the employee need not ask for a hearing; it is to be provided as a matter of right.

In contrast, Section 3020-a of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires that the individual affirmatively act and request a disciplinary hearing.

Under Section 3020-a, not only is the accused individual required to tell to the employer whether or not he or she wishes to have a disciplinary hearing scheduled, "the unexcused failure of the employee to notify the [district's] clerk or secretary of his or her desire for a hearing ... shall be deemed a waiver of the right to a hearing ...."

Section 3020-a also provides that in the event the teacher or school administrator does not ask for a Section 3020-a hearing, by design or otherwise, the school board is to determine the case and fix the penalty in accordance with Section 3020-a.4 of the Education Law.

The Section 3020-a model is followed in most alternative disciplinary procedures negotiated pursuant to the Taylor Law. If the employee does not file a timely disciplinary grievance, the appointing authority usually is authorized to impose the penalty proposed in the notice of discipline served on the individual without further action on its part and without referring the issue to arbitration.

What would be the result should the charging party not participate in an administrative proceeding? The decision in Armata and United Federation of Teachers, 30 PERB 4713, is instructive in this regard.

Rebeca Armata elected not to attend the scheduled PERB hearing. The PERB hearing officer dismissed her complaint on the ground that she had failed to prosecute it.

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Collecting a paycheck could be a work related activity

Collecting a paycheck could be a work related activity
Dandola v Workers' Compensation Board, App Div, 244 AD2d 729

William Dandola, a New York City Corrections Officer, slipped and fell, injuring his knee. According to the decision, Dandola fell in front of the Rikers Island correction facility while running to pick up his paycheck on his day off. Did Dandola suffer a work related injury entitling him to workers' compensation benefits? Yes, said the Workers' Compensation Appeals Board in a decision affirmed by the Appellate Division.

Although the City Department of Correction argued that Dandola's injury occurred while he was engaged in "an essentially personal errand on his day off," the Appellate Division said that it has been held that "an employee may be within the scope of employment when collecting his or her pay check while off duty." In this instance, the Court decided that Dandola was injured in the course of his employment.

Why? Because, the Court explained, Correction's "paycheck distribution procedures" indicate that although arrangements to mail an employee's paycheck to his or her residence can be made, the expected procedure is for employees to pick up their paycheck in person. According, said the Court, the Appeals Board's holding that Dandola's injury arose out of and in the course of his employment is supported by substantial evidence.
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Acquisition of a private entity by a public employer

Acquisition of a private entity by a public employer
Neron v NYC Health and Hospitals Corp., Supreme Court [Not selected for publication in the Official Reports]

In January 1998, New York State Supreme Court Justice Shainswit considered a personnel issue that is rarely litigated -- the status of individuals who work for a private employer having a contract with a public entity to provide certain services and later become employees of that public entity.

About 125 hospital technicians working at the New York City's Jacobi Medical Center, a municipal hospital, sued their employer, the New York City Health and Hospitals Corporation (HHC), claiming that they were entitled to (1) permanent competitive status without first having to take and pass a competitive examination for their respective positions and (2) seniority "theretofore held by them as among themselves." The technicians argued that HHC's failure to provide for this was arbitrary, capricious, and an abuse of discretion, citing Section 7390 of the Unconsolidated Laws and Section 45 of the Civil Service Law as authority for this claim. As to the events leading to this lawsuit:

1. Initially HHC entered into an "Affiliation Agreement" with Albert Einstein College of Medicine under which Einstein supplied Jacobi with doctors and non-physician technical personnel.

2. In November 1991, Coney Island Medical Group ("CIMG") assumed the Einstein/Jacobi affiliation agreement and became the employer of Jacobi's non-physician technical staff under a Jacobi-CIMG affiliation agreement.

3. In September 1996, the Jacobi-CIMG affiliation agreement expired and HHC offered "civil service employment" to all non-physician technical staff who had been employed under the now expired affiliation agreement.

This resulted in HHC provisionally appointing about 106 individuals previously serving under the Jacobi-CIMG agreement to positions in the competitive class; the remaining individuals were placed in exempt class or non-competitive class positions.

The technicians pointed to Unconsolidated Laws Section 7390.2, which in relevant part provides that "employees of the voluntary hospitals and medical schools be continued in the employment of HHC without competitive examination, and shall be afforded permanent competitive status." They also claim that HHC violated Section 45.1 of the Civil Service Law, which deals with the takeover of a private employer by a public employer.

HHC, on the other hand, urged the Court to rule that Section 7390, enacted in 1973, did not require it to grant the 106 technicians permanent competitive status without such individuals first taking and passing a competitive examination because Section 7390 was intended to have limited application as it related to a specific, immediate, but [then] temporary concern. The Corporation also argued Section 45 was inapplicable because there was no acquisition of a private institution by a government agency.

The Court rejected HHC's contention that Section 7390 did not apply in this instance, finding that "it expressly applies to situations where HHC assumes the employment of individuals who previously provided medical services for HHC as employees of the voluntary hospitals and medical schools in the municipal hospitals of the City of New York." The Court noted that nothing in Section 7390 indicates that it was intended to apply only to the situation faced by HHC in 1973 and ceased to be in force thereafter.

Justice Shainswit explained his ruling by indicating that "to require that competitive examinations be given to any of the former employees of the voluntary hospitals and medical schools now performing such services would seriously interrupt the administration of health and medical services necessary for the general welfare of the people of the City and would thus be impracticable."

HHC, however, fared better with its arguments concerning the applicability of Section 45 in this situation. Why? Because, as the Court noted, there was no showing that functions in contrast to the mere assumption of employees' services, was involved and thus there was no acquisition of a private entity within the meaning of Section 45.

The bottom line: HHC was ordered to give permanent competitive appointments without competitive examination to the 106 technicians qualified for such an appointment.

"Contracting-out" for services may have unanticipated consequences. For example, EEOC, reacting to the increase in the use of a "contingent workforce," including temporary and contract employees, by employers, has concluded that "if both the staffing firm and its client have the right to control the worker, both can be liable for civil rights violations."
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Second Circuit Court of Appeals explains why ADEA, Title VII, Equal Protection, LMRA and ERISA claims against the City had to be dismissed

Second Circuit Court of Appeals explains why ADEA, Title VII, Equal Protection, LMRA and ERISA claims against the City had to be dismissed
Vandermark v City of N.Y., 09-4746-cv (2nd Cir. 9-7-2010) [Summary Order*]

Marshall Vandermark was the lead plaintiff when a number of Environmental Police Officers (EPOs) employed by the City of New York sued the City alleging that the City had violated various state and federal laws with respect to their compensation and fringe benefits.

The district court dismissed the federal claims for failure to state a cause of action and declined to exercise supplemental jurisdiction over Vandermark's State Law claims.

Vandermark had filed the lawsuit claiming violations of the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the Labor Management Relations Act (LMRA), the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act as well as alleged violations of 42 U.S.C. §§ 1983 and 1985 [equal protection].

The Circuit Court affirmed the district court’s dismissal of Vandermark’s ADEA, Title VII, Equal Protection, and LMRA and ERISA claims.

The court explained that:

1. To establish their Title VII claim, a plaintiff would need to show employment discrimination on the basis of "race, color, religion, sex, or national origin" [see 42 U.S.C. § 2000e-2(a)(1)] but Vandermark alleged no such nexus.

2. To establish their ADEA claim, a plaintiff would need to show employment discrimination on the basis of age [see 29 U.S.C. § 623(a)(1)]. However, Vandermark complained of “unequal retirement benefits.” Such allegations do not encompass allegations of age discrimination said the court.

3. To establish §§ 1983 and 1985 equal protection claims, a plaintiff would need to show that there is no "reasonably conceivable state of facts that could provide a rational basis for the classification." The Circuit Court agreed with the district court's observation that "[t]here are numerous reasonable bases on which the City of New York might decide that NYPD officers and EPOs should receive different compensation and benefits, including the danger associated with the positions, the physical strain of the job, and the cost of living in the areas in which NYPD officers and EPOs work."

In addition, the court noted that neither the LMRA nor ERISA applies to political subdivisions of a State [see 29 U.S.C. § 152(2) (LMRA) and 29 U.S.C. §§ 1002(32), 1003(b) (ERISA)] and said that “It is clear to us . . . that the New York City Department of Health and Mental Hygiene is a `political subdivision' of New York that is exempt under [the statutes relied upon by Vandermark] ….”

As to Vandermark’s FLSA claim, the Circuit Court said that the district court “correctly applied the §207(k) exemption, [see 29 U.S.C. § 207(k)] as it was undisputed that EPOs [1] are "empowered . . .to enforce laws . . ., and to prevent and detect crimes"; [2] "ha[ve] the power to arrest"; and [3] "undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics," citing 29 C.F.R. § 553.211(a).

Finding no merit in Vandermark remaining arguments, the Circuit Court affirmed the district court's decision and dismissed his appeal.

* N.B. - Rulings by summary order do not have precedential effect.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/doc/09-4746_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/hilite/
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Answering the questions asked by an investigator

Answering the questions asked by an investigator
Chance v Erickson, US Supreme Court, 522 U.S. 262

The U.S. Supreme Court has ruled that federal employees being investigated in connection with alleged employment-related misconduct who knowingly give false answers to the investigators may be given stiffer penalties than might otherwise be imposed on them for the underlying misconduct.

The Court said that an individual may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.

It is expected that other courts will follow the Supreme Court's rationale in cases involving efforts by state and municipal employers to impose additional sanctions on public employees who make false statements to persons conducting internal investigations of alleged wrongdoing by public workers.

The Chance decision concerned efforts by federal appointing authorities to increase the punishment imposed for misconduct in situations in which federal workers were found to have deliberately falsified responses to questions in the course of an internal investigation. Those investigations led to the filing of disciplinary charges against the individual under investigation.

The right to employee representation during questioning was not an issue in Chance. However, it should be noted that Section 75.2 of the Civil Service Law provides that an employee who at the time of questioning appears to be a potential subject of disciplinary action must be advised, in writing, that he or she has the right to have a representative present during the questioning. Disciplinary procedures negotiated under the Taylor Law frequently provide for employee representation during the investigatory phase of the procedure.

The Supreme Court overturned decisions by various appellate courts that upheld Federal Merit System Protection Board rulings that barred the imposition of extra punishment on employees who made false statements in the course of an internal departmental investigation of alleged misconduct by the employees.

The Board had reduced the harsher penalties by forcing federal employers to:

1. Issue a letter of reprimand instead of imposing demotions and 30-day suspensions on two individuals for working on non-government activities on government time.

2. Suspend a male supervisor for 14 days instead of demoting him for making inappropriate remarks to a female subordinate.

3. Suspend an individual for 15 days instead of dismissing the employee for motivating another individual to make harassing telephone calls to a third person.

4. Suspend an employee for 45 days instead of dismissing the individual for misuse of an agency credit card

5. Suspend a health employee for 90 days instead of instead of dismissing him for having had sex with a patient.

The Court commented that the fact that the false statements were not made under oath made no difference. Being charged and found guilty of making false statements in the course of an agency's investigation does not require that the employee make the false statements while under oath.

What about a situation where a truthful answer could expose the employee to criminal prosecution? If, said the Court, answering an agency's investigatory question could expose an employee to a criminal prosecution, he or she may exercise his or her Fifth Amendment right to remain silent -- but may not provide falsehoods in response to the question without being vulnerable to being disciplined for making such false statements.

As to the employee's refusal to answer, the decision notes that it may well be that an agency, in ascertaining the truth or falsity of the charge, would take into consideration the failure of the employee to respond ... there is nothing inherently irrational about such an investigative posture. The Court cited Baxter v. Palmigiano, 425 U.S. 308, which discusses the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.

For these reasons, said the Court we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.

In another case, Brogan v United States, 522 U.S. 398, the Supreme Court, by a 7-2 vote, upheld the conviction of a former union officer who answered no to a question asked by investigators concerning illegal payments he was allegedly paid. This untrue response was the basis for his being convicted of a federal law that made any false, fictitious or fraudulent statements or representations to the federal government a felony, even if the statement was not made under oath. The Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.

The test of the Chance decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/falsely-answering-investigators.html
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Appealing a Disciplinary Action

Appealing a Disciplinary Action
Podszus v Mt. Vernon, App Div, 246 AD2d 548

The Podszus case demonstrates the importance of selecting the correct forum to hear an appeal.

The Commissioner of Public Safety found William Podszus, a City of Mount Vernon police officer, guilty of charges of insubordination and malicious gossip and imposed as the penalty of the forfeiture of 10 days of pay. Podszus filed an Article 78 action in State Supreme Court challenging both the evidentiary basis for the Commissioner's determination and the penalty imposed. This proved to be the wrong court for such an appeal.

The Appellate Division said that Section 120 of the City's Charter provided that the exclusive vehicle for a police officer seeking review of a determination of the Commissioner is a direct appeal to the Appellate Division within 30 days following the Commissioner's decision.

Accordingly, the Court dismissed the appeal as the Supreme Court did not have subject matter jurisdiction to consider Podszus' petition nor authority to transfer it to the Appellate Division.

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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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Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"

Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"
Kopetz v Article 1-B Pension Fund, 255 A.D.2d 443

The so-called Cancer Bill, General Municipal Law Section 207-kk, provides eligibility for accidental disability retirement under certain conditions.

Frederick Kopetz, a former New York City firefighter, challenged a determination by his pension fund rejecting his application for an accidental disability retirement allowance. Kopetz's claim was based on his having had cancer and undergoing a nephrectomy for removal of the right kidney.

Kopetz had returned to full duty, and had been cancer-free since the surgery. He was placed on light duty because of other medical conditions. Eventually the Medical Board of the New York City Fire Department Article 1-B Pension Fund concluded that he was not capable of full duty and recommended that he be retired on ordinary disability.

The Board of Trustees of the pension fund concurred. It observed that Kopetz's own physicians indicated that his disability was caused by hypertension and cerebrovascular insufficiency. Because his disability was not result of cancer or any line-of-duty injury, the board concluded that he was not entitled to benefits under the cancer bill.

Kopetz objected, contending that he should be retired on accidental disability retirement on the theory that he was entitled to an ADR because he once had cancer.

He contended that the law granted accidental disability retirement benefits to qualified persons who suffer:

... any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems or (ii) melanoma resulting in total or partial disability or death to a paid member of a fire department in a city with a population of one million or more [i.e., the City of New York], who successfully passed a physical examination on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.

New York State Supreme Court Justice Vaughan dismissed Kopetz's petition. The court commenting that Kopetz, who bore the burden of proof, had not met his burden. A court cannot disturb an administrative determination unless it finds that the determination is arbitrary or capricious or erroneous as a matter of law. Justice Vaughn said there was no basis for such a determination in this case.
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Retirees’ rights to health insurance benefits

Retirees’ rights to health insurance benefits
Prater v Ohio Education Assoc. CA6, Docket #06-4393

Retired employees of Education Association sued, contending that the Association had improperly terminated their health benefits that had been provided in accordance with the terms of a series of collective bargaining agreements.

The Circuit Court ruled that descriptions of health insurance benefits prepared by the Association cannot supersede the provisions set out in a collective bargaining agreement.

The full text of the decision is posted at:

http://www.ca6.uscourts.gov/opinions.pdf/07a0405p-06.pdf
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Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee

Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee
Delia v. City of Rialto, USCA, 9th Circuit, No. 09-55514, decided September 9, 2010

In this 42 USC §1983 action, Firefighter Nicholas B. Delia sued the City of Rialto, the Rialto Fire Department, a number of Rialto Fire Department officials and a private attorney, Steve Filarsky alleging violations of his constitutional rights during a departmental internal affairs investigation in which he was involved.

Although the Ninth Circuit concluded that Delia’s constitutional right under the Fourth Amendment were violated as the result of a warrantless search of his home, it also determined that this right was not clearly established at the time of this constitutional violation. Accordingly, the Circuit Court affirmed the district court’s order granting qualified immunity to the several fire officials named in Delia’ complaint and affirmed the lower court’s granting the City’s motion for summary judgment dismissing Delia’s complaint.

The Circuit Court, however, reverse the district court’s granting qualified immunity to Filarsky, the private attorney retained by the City in the course of its investigation of Delia.*

The court explained that the doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” citing Pearson v Callahan, 129 S. Ct. 808.

In Pearson the Supreme Court indicated that the basis for proving public officials with “qualified immunity” was to balance “two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Addressing the lower court’s deeming Filarsky eligible for such qualified immunity, the Circuit Court said that “Unlike the other individual defendants in this case, Filarsky is not an employee of the City." Rather, said the court, he is a private attorney, retained by the City to perform certain services in connection with an internal affairs investigation.

Delia contended that Filarsky, as a private attorney, was not entitled to claim a qualified immunity while Filarsky argued that under the circumstances, and his work on behalf of the City, this was “a distinction without a difference.”

In support of his argument Filarsky cited Culliman v Abramson, 128 F.3d 301. In Culliman the Sixth Circuit Court of Appeals held that a law firm that had been hired by the City of Louisville to serve as outside counsel was entitled to qualified immunity against plaintiffs’ §1983 claims.

In Culliman the court said “We see no good reason to hold the city’s in-house counsel eligible for qualified immunity and not the city’s outside counsel.”

Acknowledging the 6th Circuit’s ruling, the Ninth Circuit court noted that in Gonzalez v Spencer, 336 F.3d 832, a different panel of the 9th Circuit held that a private attorney representing a county was not entitled to qualified immunity.

The defendant in Gonzales was a private attorney retained to defend Los Angeles County in an underlying civil rights suit brought by the plaintiff.

In rejecting the attorney’s claim of qualified immunity, the Gonzales court reasoned, “[the attorney] is not entitled to qualified immunity. She is a private party, not a government employee, and she has pointed to ‘no special reasons significantly favoring an extension of governmental immunity’ to private parties in her position.’”

The Circuit Court said that it was bound by the Gonzalez decision as Filarsky did not allege any “intervening en banc decision [by the Ninth Circuit], Supreme Court decision,** or intervening legislation which would permit us to overrule the holding in Gonzalez.”

Thus, said the court, Filarsky was not entitled to qualified immunity as a private attorney performing services for a public entity and reversed the district court’s grant of summary judgment in his favor. It then remanded the matter for trial or “further proceedings as determined by the district court.”

* Filarsky had previously represented the City in conducting interviews during internal affairs investigations.

** The 6th Circuit’s holding in Culliman and the 9th Circuit’s holding in Gonzalez suggests that the issue of whether an attorney in private practice performing services on behalf of a government entity may claim a “qualified immunity” if named as a defendant as the result of some act or omission in the performance of his or her duties may be ripe for consideration by the Supreme Court.

The decision is posted on the Internet at:
http://www.ca9.uscourts.gov/datastore/opinions/2010/09/09/09-55514.pdf
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Continuing Legal Education courses offered pro bono by Tully Rinckey, PLLC

Continuing Legal Education courses offered pro bono by Tully Rinckey, PLLC
Source: Announcement from Tully Rinckey

Tully Rinckey, a law firm headquartered in Albany, New York, is offering a number of continuing legal education [CLE] courses that can be used to satisfy the minimum annual CLE requirements for newly admitted attorneys without any cost to the participants.

The first in the series of the monthly CLE courses being offered, Domestic Violence, will be held on September 21, 2010 in the Tully Rinckey Conference Room, 441 New Karner Road, Albany, NY. This one-hour course will be presented by Jennifer Corcoran, Esq. and starts at 6:00 p.m. Participants will earn one [1] CLE credit in the area of professional practice.

To register for the course, and for information about the other CLE courses to be offered, call Tully Rinckey [518-640-1258] or e-mail the firm at CLE@tullylegal.com.
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Early termination of a school superintendent's contract permitted

Early termination of a school superintendent's contract permitted
Peebles and Forestville CSD, Comm of Ed Decision 13845

A school board's approval of the early termination of its school superintendent's contract resulted in a board member filing a complaint concerning its action with the Commissioner of Education.

Forestville Central School District Superintendent J. Richard Rodriguez was under contract with the District through June 30, 1997. The contract allowed Rodriguez to resign prior to that date by giving the Board of Education at least 90 days written notice. The contract also permitted the Board and the Superintendent to terminate the Superintendent's employment at any time on such terms as they mutually agree upon in writing.

On June 5, 1996 Rodriguez learned that he had been appointed as superintendent by another district effective August 5, 1996. Rodriguez and Tina Duliba, the then Board President, discussed the District's waiving the 90-day notice requirement in exchange for Rodriguez's returning 31 unused vacation days and a pro-rata portion of a $10,000 performance award due him.

During an executive session held by the Board on June 19, 1996, the waiver plan was discussed and Rodriguez submitted his resignation. At its regular meeting on the same day Board member Richard L. Peebles introduced a motion to accept Rodriguez's resignation effective August 4, 1996. His motion was adopted by a unanimous vote.

On August 26, 1996 Peebles filed an appeal with the Commissioner of Education challenging the Board's waiver allowing the early termination of Rodriguez's contract. Peebles contended that Duliba permitted Rodriguez to violate his employment contract by allowing him to leave 45 days early. He also charged that Rodriguez's salary had been miscalculated, resulting in a $12,500 loss to the District. Peebles asked the Commissioner to remove Duliba from the Board and to order Rodriguez to reimburse the District $12,500.

On September 4, 1996 the Board adopted a resolution ratifying its June 19 executive session agreement with Rodriguez, including his surrendering vacation days and part of his performance pay in exchange for its waiving the 90-day notice requirement.

The Board responded to Peebles' claims by arguing that it and Rodriguez had mutually agreed upon the terms of his release from the contract at the June 19 executive session and any failure to record the terms of the agreement were [sic] cured when the Board ratified the agreement with a formal resolution on September 4, 1996.

The Commissioner dismissed Peebles' appeal, finding:

1. Peebles failed to satisfy his burden of establishing the facts upon which he sought relief.

2. Evidence submitted by the Board indicated that the entire Board discussed and approved the early release date and accepted Rodriguez's offer to exchange vacation days and a pro-rata portion of his performance bonus for its approving his early release from the contract.

3. Although the business office had originally miscalculated Rodriguez's salary, the error was eventually corrected and it does not appear that the District overpaid Rodriguez .

In addition, the Commissioner said that there is simply no basis for the removal of ... Duliba since there is no evidence of a willful violation or neglect of duty under [Section 306.1 of the Education] law.

Probably this situation would have been avoided had the District memorialized the decision or agreements reached by the parties during the Board's executive session at the Board's regular meeting later that day.
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Financial Disclosure by Federal Officers

Financial Disclosure by Federal Officers
Formal Opinion of the Attorney General 98-F1

The Attorney General concludes that federal officials serving as members or directors of State public benefit corporation to monitor federal funds cannot be required to comply with New York's financial disclosure requirements [Section 73-a, Public Officers Law].

The opinion indicates that a state cannot impose qualifications on federal officials in addition to those the federal government had deemed sufficient where the federal officials are serving with the corporation as officials of the federal government rather than in their personal capacities.
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Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful

Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful
Francis v. City of Meriden, CA2, 129 F.3d 281, Cert. denied, 526 U.S. 1018

Does disciplining law enforcement personnel and firefighters who fail to meet certain “weight/height” guidelines constitute unlawful discrimination under Americans with Disabilities Act of 1990 [ADA] or the Rehabilitation Act of 1973 [RHA]? In the Francis case, the U.S. Circuit Court of Appeals, Second Circuit [New York], ruled that such discipline is not discriminatory.

City of Meriden, Connecticut, firefighter John A. Francis had been suspended for one day because he exceeded the Meriden fire department’s weight/fitness guidelines for firefighters set out in a collective bargaining agreement. Under the terms of the agreement, a firefighter whose weight exceeded the limits had to demonstrate his or her fitness by passing either a body fat test or a physical fitness test. If the firefighter was unable to do so, he or she could be disciplined and subject to disciplinary penalties up to and including termination.

Obesity, except in cases where the obesity relates to a physiological disorder, is not a “physical impairment” within the meaning of the statutes. For the purposes of ADA and RHA, an “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within “normal” range and are not the result of a physiological disorder. [29 C.F.R. Section 1630.2(h)]

To state a claim under the ADA or the RHA, individual must either have an impairment or be able to show that he or she was “regarded as” having such an impairment.” An employer who disciplines an employee for not meeting certain weight guidelines has not unlawfully discriminated against the employee unless it can be shown that either (1) the weight condition is the symptom of a physiological disorder, or (2) that the employer’s disciplinary action was based on the perception that the employee is obese as a result of a physiological disorder (“morbidly obese.”) [See Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997)]

According to the decision, “a plaintiff ... must allege that the employer believed, however erroneously, that the individual suffered from an “impairment” that, if it truly existed, would be covered under the statutes and that the employer discriminated against the plaintiff on that basis.” The Court said Francis’ action had to be dismissed because “to hold otherwise would open up the ‘regarded as’ prongs of the ADA and the RHA to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered by the Acts.”

The Court said that employers subject to ADA and the Rehabilitation Act may not discriminate against a qualified individual with a disability with respect to the “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

A “physical impairment” under the ADA is defined by regulations issued by the Equal Employment Opportunity Commission (“EEOC”) as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, ... cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. Section 1630.2(h)(1).1. For the purposes of HRA, the same definition is applied [45 C.F.R. Section 84.3(j)(2)(i).2].

The text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/heightweight-requirements-in-public.html

Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation

Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation
Matter of Pakter v New York City Dept .of Educ., 2010 NY Slip Op 32451(U, August 20, 2010, Supreme Court, New York County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]

David Pakter, a school teacher employed by the New York City Department of Education [DOE], was charged with misconduct and removed from his classroom teaching duties and assigned to one of the DOE’S reassignment centers, also known as the “rubber rooms.’’

On March 21, 2010, the New York Post published an article titled “Bored of Ed. in Rubber Rooms.” A sidebar to this article featuring “notable rubber room residents” included Pakter and stated that he was charged with sexual misconduct. Pakter, however, had not been charged with sexual misconduct and the Post subsequently ran a retraction.

Pakter, believing himself to have been defamed and intending to bring a lawsuit against the person or persons who provided the Post with the inaccurate information, asked the Post and DOE to identify the source of the incorrect statement.

When his request was denied, Pakter filed a petition in Supreme Court seeking a court order to compel the disclosure the name or names of the person or persons involved with providing the information and any documentation that he had been charged with sexual misconduct. He also asked for a court order compelling the Post and DOE to preserve all “notes, emails, and electronically stored information” concerning the event.

Judge Kern ruled that Pakter was entitled to “pre-action disclosure of information” as to the identity of the source or sources who provided the Post with the statement as he had made a “strong showing that a cause of action exists” for a cause of action for defamation alleging a false statement, published without privilege or authorization to a third party.

Further, said the court, such pre-action discovery is permitted in cases, such as here, where an individual having a valid claim for defamation needs "to identify the unnamed source or sources who provided defamatory information to a newspaper in order to bring an action against them."

The Post was ordered to answer interrogatories limited to the issue of the name(s) of the source or sources who provided the Post with the statement that Pakter had been charged with sexual misconduct "as reported in the article and sidebar to the article entitled 'Bored of Ed. in Rubber Rooms'" and, in addition, both the Post and DOE were directed “to preserve any documents, reporter’s notes, emails, and electronically stored information related to the statement at issue.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32451.pdf

N.B. Now pending before the Court of Appeals is Geraci v Probst [see 61 AD3d 717]. This case concerns whether the original publisher of a libelous letter could be held responsible for its subsequent publication in a newspaper. The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_02971.htm
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