Name-clearing hearings
Aquilone v City of New York, 262 AD2d 13, Motion for leave to appeal denied, 93 NY2d 819
A public employee who has been terminated from his or her position may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual.
The Aquilone case addresses whether a retiree who continues to work as a consultant to the employer is entitled to a name-clearing hearing if his or her behavior prior to retirement is criticized in an investigatory report, putting his or her consulting relationship in jeopardy.
Edward Aquilone, a former Executive Director of Personnel for the New York City Board of Education, won a court order in state Supreme Court directing the school board to hold a name-clearing hearing, only to have the order vacated by the Appellate Division.
Aquilone retired from his position in 1989. Two years later, the Deputy Commissioner of Investigation issued a report that concluded that Aquilone had participated in a cover-up of sexual misconduct involving a fellow employee. The report said that Aquilone appointed friends of the employee to a hearing panel to guarantee a result favorable to the accused and “ensure the proceeding’s secrecy”. The report alleged that Aquilone neglected to give a record of the hearing to the Board’s Office of Personnel Security or log the file into that office’s computer system.
Noting that Aquilone had already retired, the deputy commissioner’s report suggested that suspension or termination of [Aquilone] occasional consulting jobs with the board would constitute “appropriate disciplinary action.”
A four-judge panel of the Appellate Division, 1st Department, ruled that because Aquilone had been retired for two years when the stigmatizing allegations were made, and he was not fired, suspended or demoted, he is not entitled to a name-clearing hearing.
The court ruled that a name-clearing hearing was not appropriate because such a hearing “is a remedy for the deprivation of a person’s due process right when an employee is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence,” citing Donato v Plainview-Old Bethpage School District, 96 F.3d 623, cert. denied 519 US 1150.
In addition, the Appellate Division commented that defamation standing alone does not constitute a deprivation of a liberty interest protected by the due process clause -- some “stigma plus” must be shown before it rises to the level where the individual’s constitutional rights may have been adversely affected.
The court also cited Martz v Inc. Vill. Of Valley Stream, 22 F.3d 26, in which the Second Circuit U.S. Court of Appeals said:
in the context of defamation involving a government employee, defamation ... is not a deprivation of a liberty interest unless it occurs in the course of dismissal or refusal to rehire the individual as a government employee or during termination or alteration of some other legal right or status ... the “plus” is not only significant damage to a person’s employment opportunities, but dismissal from a government job or deprivation of some other legal right or status.
In addition, the court pointed out that reports such as that issued by the deputy commissioner are protected by an “absolute privilege,” referring to the Court of Appeals’ ruling in Ward Telecommunications and Computer Systems Inc. v State of New York, 42 NY2d 289.
In the Ward case, the Court of Appeals -- New York State’s highest court -- ruled that “official ordered reports issued on behalf of the State Comptroller by the Division of Audit and Accounts are subject to an absolute privilege in any action for defamation based on the content of such reports.”
The rationale for this, said the court, was that the public’s interest demands that there be no legal or practical constraint placed on the content of the Comptroller’s reports or deterrent to their availability for public scrutiny.
Applying this rationale to Aquilone’s situation, the Appellate Division said that “the same rule must apply to the results of an official investigation into cover-up of a sex crime committed by a public employee.”
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
October 21, 2010
Testimony by the appointing authority in a disciplinary action
Testimony by the appointing authority in a disciplinary action
DiMattina v LaBua, 262 AD2d 409
One of the issues considered by the Appellate Division in the DiMattina case appeal concerned the fact that the appointing authority both preferred the charges filed against Thomas J. DiMattina and testified against him at the disciplinary hearing that followed.
DiMattina, a Town of Huntington employee, was dismissed from his position after he was found guilty of having “wrongfully obtained and withheld Town-owned lumber, wrongfully obtained and withheld Town-owned tools and equipment, abused his authority, and improperly influenced subordinate Town employees with respect to political activities.”
The appointing authority, the director of the Department of General Services, had preferred the charges against DiMattina and testified at the subsequent disciplinary hearing. But the Appellate Division noted that “he properly disqualified himself from reviewing the recommendations of the Hearing Officer and acting on any of the charges.”
The determination was made by the Deputy Director, who was authorized to act generally in the Director’s absence pursuant to local law and who had been properly designated to render a final determination in DiMattina’s case.
The court said that “it is well settled that when an officer institutes charges of misconduct and testifies at an ensuing hearing, that officer, in the interest of fairness, must disqualify [himself or] herself from reviewing the Hearing Officer’s recommendations and rendering a final determination.” This was done in this case.
NYPPL
DiMattina v LaBua, 262 AD2d 409
One of the issues considered by the Appellate Division in the DiMattina case appeal concerned the fact that the appointing authority both preferred the charges filed against Thomas J. DiMattina and testified against him at the disciplinary hearing that followed.
DiMattina, a Town of Huntington employee, was dismissed from his position after he was found guilty of having “wrongfully obtained and withheld Town-owned lumber, wrongfully obtained and withheld Town-owned tools and equipment, abused his authority, and improperly influenced subordinate Town employees with respect to political activities.”
The appointing authority, the director of the Department of General Services, had preferred the charges against DiMattina and testified at the subsequent disciplinary hearing. But the Appellate Division noted that “he properly disqualified himself from reviewing the recommendations of the Hearing Officer and acting on any of the charges.”
The determination was made by the Deputy Director, who was authorized to act generally in the Director’s absence pursuant to local law and who had been properly designated to render a final determination in DiMattina’s case.
The court said that “it is well settled that when an officer institutes charges of misconduct and testifies at an ensuing hearing, that officer, in the interest of fairness, must disqualify [himself or] herself from reviewing the Hearing Officer’s recommendations and rendering a final determination.” This was done in this case.
NYPPL
October 20, 2010
Documents concerning an employee’s separation and post-termination employment benefits available under New York's Freedom of Information Law
Documents concerning an employee’s separation and post-termination employment benefits available under New York's Freedom of Information Law
William E. Hamilton submitted a Freedom of Information Law (FOIL) request seeking documentation concerning "the modification, amendment and/or termination of the employment agreement" between the Jordan-Elbridge Central School District and its superintendent, Marilyn Dominick, as well as any document relating to the termination of Dominick's employment with the district and any post-termination employment benefits. When the District declined to provide Hamilton with the documents he sought, he filed a petition in Supreme Court seeking a court order compelling the District to provide the documents he had sought.
Judge Greenwood stated that only one document was at issue: the agreement between Jordan-Elbridge and Dominick concerning her resignation and retirement.
Explaining that FOIL is based upon a presumption of access and all records of an agency are available except to the extent that the records or portions thereof fall within one or more grounds for denial, as set forth in Public Officer's Law §87,* the court noted that the statute is to be “liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”
Significantly, Judge Greenwood commented that “both case law and the Committee on Open Government Advisory Opinions have held that a contract between an administrator and a school district must be disclosed under the FOIL, and neither the characterization of the documents as personal records nor their placement in personnel files render the documents confidential or deniable under the law.”
In response to the School District’s “justification for withholding the document,” Judge Greenwood conducted an in camera inspection of the document in question** and concluded that “none of the personal information alleged is contained in the agreement as [the District] claimed. Nor does the agreement contain a confidentiality provision as alleged by [the School District].***
In addition, Judge Greenwood said that the Court “would not be not bound by a confidentiality agreement and must make its own determination regarding disclosure.”
Finally, Judge Greenwood indicated that a party is entitled to its legal fees in prosecuting a FOIL proceeding if the party establishes that:
1) it has substantially prevailed;
2) the record sought was of clearly significant interest to the general public; and
3) the agency lacked a reasonable basis in law for withholding the record.
Here, said the court, there was no confidentiality agreement upon which the School District could have reasonably relied, nor is there any confidential information contained in the document that was required to be redacted.
Also, said the court, Hamilton had shown that the document is of significant interest to the general public and the Superintendent’s desire to keep the reason for her retirement and value of her severance package secret is not a sufficient basis under the Freedom of Information Law to deny the subject FOIL request.
Accordingly, Judge Greenwood awarded Hamilton “attorney's fees in the amount of $2,500.”
* The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].
** The term “in camera” is used to characterize a hearing or inspection of documents that takes places in private, often in a judge's chambers.
*** Robert J. Freeman, Executive Director, Committee on Open Government, has addressed “non-disclosure agreements.” His views are set out in the “Staff Advisory Opinion” posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f14114.htm Further, in LaRocca v Jericho UFSD, 220 AD2d 424, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.” The court ruled that the settlement agreement in question, or any part of it, providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the pubic interest.”
The decision, Hamilton v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51663(U), Decided on September 23, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports], is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51663.htm
NYPPL
William E. Hamilton submitted a Freedom of Information Law (FOIL) request seeking documentation concerning "the modification, amendment and/or termination of the employment agreement" between the Jordan-Elbridge Central School District and its superintendent, Marilyn Dominick, as well as any document relating to the termination of Dominick's employment with the district and any post-termination employment benefits. When the District declined to provide Hamilton with the documents he sought, he filed a petition in Supreme Court seeking a court order compelling the District to provide the documents he had sought.
Judge Greenwood stated that only one document was at issue: the agreement between Jordan-Elbridge and Dominick concerning her resignation and retirement.
Explaining that FOIL is based upon a presumption of access and all records of an agency are available except to the extent that the records or portions thereof fall within one or more grounds for denial, as set forth in Public Officer's Law §87,* the court noted that the statute is to be “liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”
Significantly, Judge Greenwood commented that “both case law and the Committee on Open Government Advisory Opinions have held that a contract between an administrator and a school district must be disclosed under the FOIL, and neither the characterization of the documents as personal records nor their placement in personnel files render the documents confidential or deniable under the law.”
In response to the School District’s “justification for withholding the document,” Judge Greenwood conducted an in camera inspection of the document in question** and concluded that “none of the personal information alleged is contained in the agreement as [the District] claimed. Nor does the agreement contain a confidentiality provision as alleged by [the School District].***
In addition, Judge Greenwood said that the Court “would not be not bound by a confidentiality agreement and must make its own determination regarding disclosure.”
Finally, Judge Greenwood indicated that a party is entitled to its legal fees in prosecuting a FOIL proceeding if the party establishes that:
1) it has substantially prevailed;
2) the record sought was of clearly significant interest to the general public; and
3) the agency lacked a reasonable basis in law for withholding the record.
Here, said the court, there was no confidentiality agreement upon which the School District could have reasonably relied, nor is there any confidential information contained in the document that was required to be redacted.
Also, said the court, Hamilton had shown that the document is of significant interest to the general public and the Superintendent’s desire to keep the reason for her retirement and value of her severance package secret is not a sufficient basis under the Freedom of Information Law to deny the subject FOIL request.
Accordingly, Judge Greenwood awarded Hamilton “attorney's fees in the amount of $2,500.”
* The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].
** The term “in camera” is used to characterize a hearing or inspection of documents that takes places in private, often in a judge's chambers.
*** Robert J. Freeman, Executive Director, Committee on Open Government, has addressed “non-disclosure agreements.” His views are set out in the “Staff Advisory Opinion” posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f14114.htm Further, in LaRocca v Jericho UFSD, 220 AD2d 424, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.” The court ruled that the settlement agreement in question, or any part of it, providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the pubic interest.”
The decision, Hamilton v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51663(U), Decided on September 23, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports], is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51663.htm
NYPPL
Although an employer is required to provide a disabled individual with a reasonable workplace accommodation, commuting to work is not job-related
Although an employer is required to provide a disabled individual with a reasonable workplace accommodation, commuting to work is not job-related
Robin DiNatale initiated a proceeding pursuant to Executive Law §298 seeking to annul the determination by the New York State Division of Human Rights that she failed to establish that her employer, the New York State Insurance Fund, discriminated against her by refusing to accommodate her disability when it declined to permit her to work from her home. The Appellate Division affirmed the Division’s determination and dismissed DiNatale’s petition.
Although DiNatale had asked the Fund to allow her to work from her home, she conceded at the hearing held by a Division Administrative Law Judge that “nothing in her work environment caused the symptoms from which she suffered.” According to DiNatale, her symptoms “were aggravated by her drive to and from work” and thus she should be permitted to work from her home as an accommodation for her disability.
While the State’s Human Rights Law* requires employers to make reasonable accommodations to disabled employees, provided that the accommodations do not impose an undue hardship on the employer, the Appellate Division said that a reasonable accommodation is defined, in relevant part, “as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner."
Noting that DiNatale had declined to move closer to her place of employment, had not asked anyone else, including family members or friends, to drive her to and from work and had not attempted to use available public transportation to commute to work, the court said that her employer was not required to accommodate her difficulties in commuting to and from work.**
An employee's commute, explained the court, "is an activity that is unrelated to and outside of [the] job [, and] an employer is required to provide reasonable accommodations that eliminate barriers in the work environment,” citing Salmon, 4 F Supp 2d at 1163. In the Appellate Division's view, an individual's commuting to and from work did not encompass his or her "work environment" insofar as the employer's duty to provide a reasonable accommodation was concerned.
* See Executive Law §296(3)(b)
** The decision notes that DiNatale had tried carpooling with one individual but the carpooling “was not convenient for that person.”
The decision, Matter of DiNatale v New York State Div. of Human Rights, 2010 NY Slip Op 06895, Decided on October 1, 2010, Appellate Division, Fourth Department, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06895.htm
NYPPL
Robin DiNatale initiated a proceeding pursuant to Executive Law §298 seeking to annul the determination by the New York State Division of Human Rights that she failed to establish that her employer, the New York State Insurance Fund, discriminated against her by refusing to accommodate her disability when it declined to permit her to work from her home. The Appellate Division affirmed the Division’s determination and dismissed DiNatale’s petition.
Although DiNatale had asked the Fund to allow her to work from her home, she conceded at the hearing held by a Division Administrative Law Judge that “nothing in her work environment caused the symptoms from which she suffered.” According to DiNatale, her symptoms “were aggravated by her drive to and from work” and thus she should be permitted to work from her home as an accommodation for her disability.
While the State’s Human Rights Law* requires employers to make reasonable accommodations to disabled employees, provided that the accommodations do not impose an undue hardship on the employer, the Appellate Division said that a reasonable accommodation is defined, in relevant part, “as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner."
Noting that DiNatale had declined to move closer to her place of employment, had not asked anyone else, including family members or friends, to drive her to and from work and had not attempted to use available public transportation to commute to work, the court said that her employer was not required to accommodate her difficulties in commuting to and from work.**
An employee's commute, explained the court, "is an activity that is unrelated to and outside of [the] job [, and] an employer is required to provide reasonable accommodations that eliminate barriers in the work environment,” citing Salmon, 4 F Supp 2d at 1163. In the Appellate Division's view, an individual's commuting to and from work did not encompass his or her "work environment" insofar as the employer's duty to provide a reasonable accommodation was concerned.
* See Executive Law §296(3)(b)
** The decision notes that DiNatale had tried carpooling with one individual but the carpooling “was not convenient for that person.”
The decision, Matter of DiNatale v New York State Div. of Human Rights, 2010 NY Slip Op 06895, Decided on October 1, 2010, Appellate Division, Fourth Department, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06895.htm
NYPPL
Who is the employer?
Who is the employer?
Who was the employer who fired Floral Park Public Library part-time library clerk Barbara Beers: the Village of Floral Park or the Floral Park Public Library? Such a simple question is not as easy to answer as one might expect.
Barbara Beers was terminated from her position as a part-time clerk by the Floral Park Public Library. She sued both the village and the library, claiming that she had been unlawfully removed from her position without a hearing.
Actually Beers filed a “hybrid proceeding” consisting of an Article 78 to compel the library to reinstate her to her former position and a complaint contending the library violated 42 USC 1983, a federal civil rights statute, when it deprived her of a property right -- her job -- without a due process hearing. She also named the village as a defendant based on representations by its attorney that she had been an employee of the village.
In response, both the village and the library filed motions seeking to have Beers’ petition dismissed. The village said it should be severed from the action on the grounds that (notwithstanding the village attorney’s statements to Beers) it was not Beers’ former employer. The village argued that the library was not an agency or department of the village.
The library contended that Beers’ Article 78 action was untimely, having been filed more than four months after she had been terminated. A Supreme Court judge granted both motions and Beers appealed.
The Appellate Division commenced its analysis by noting that a public library is an educational corporation chartered by the New York State Board of Regents with the authority to hire, fire, and pay its employees and that the Education Law provides that a public library is an entity that is “separate and distinct from the municipality that created it.” It then noted that the relationship between the municipality and the public library may be varied by contract, either express or implied.
Was there an implied contract? Based on the record of the municipality’s behavior, the Appellate Division said that there was a triable issue of fact to be resolved as to which entity was Beers’ employer.
The court noted that the village had offered Beers a comparable clerk’s job and sent her a notice directing her to appear on a date certain for employment. In addition, the court said that the village, in its original answer, admitted “that it employed her”. Accordingly, said the court, it was not clear if the village assumed responsibility for the library’s employees, and thereby responsibility for her termination.
As to Beers’ claims against the library, the Appellate Division said that her Article 78 action was untimely because it was filed more than four months after her termination. It commented that Beers “knew that she worked in the library and that the library functioned separately through a board of trustees.”
However, the Appellate Division ruled that Beers’ complaint contending that the library had violated her civil rights under 42 USC 1983 because it terminated her without a hearing was timely.
The question of who is Beers’ employer and whether she was denied her rights to due process will now have to be considered by a state Supreme Court judge.
The decision, Beers v Village of Floral Park, 262 AD2d 315 , is posted on the Internet at:
http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=%22BARBARA+BEERS%22&rlt=CLID_QRYRLT508845531171910&rltdb=CLID_DB199475431171910&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA289785431171910&sv=Split&tempinfo=word&vr=2.0
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Who was the employer who fired Floral Park Public Library part-time library clerk Barbara Beers: the Village of Floral Park or the Floral Park Public Library? Such a simple question is not as easy to answer as one might expect.
Barbara Beers was terminated from her position as a part-time clerk by the Floral Park Public Library. She sued both the village and the library, claiming that she had been unlawfully removed from her position without a hearing.
Actually Beers filed a “hybrid proceeding” consisting of an Article 78 to compel the library to reinstate her to her former position and a complaint contending the library violated 42 USC 1983, a federal civil rights statute, when it deprived her of a property right -- her job -- without a due process hearing. She also named the village as a defendant based on representations by its attorney that she had been an employee of the village.
In response, both the village and the library filed motions seeking to have Beers’ petition dismissed. The village said it should be severed from the action on the grounds that (notwithstanding the village attorney’s statements to Beers) it was not Beers’ former employer. The village argued that the library was not an agency or department of the village.
The library contended that Beers’ Article 78 action was untimely, having been filed more than four months after she had been terminated. A Supreme Court judge granted both motions and Beers appealed.
The Appellate Division commenced its analysis by noting that a public library is an educational corporation chartered by the New York State Board of Regents with the authority to hire, fire, and pay its employees and that the Education Law provides that a public library is an entity that is “separate and distinct from the municipality that created it.” It then noted that the relationship between the municipality and the public library may be varied by contract, either express or implied.
Was there an implied contract? Based on the record of the municipality’s behavior, the Appellate Division said that there was a triable issue of fact to be resolved as to which entity was Beers’ employer.
The court noted that the village had offered Beers a comparable clerk’s job and sent her a notice directing her to appear on a date certain for employment. In addition, the court said that the village, in its original answer, admitted “that it employed her”. Accordingly, said the court, it was not clear if the village assumed responsibility for the library’s employees, and thereby responsibility for her termination.
As to Beers’ claims against the library, the Appellate Division said that her Article 78 action was untimely because it was filed more than four months after her termination. It commented that Beers “knew that she worked in the library and that the library functioned separately through a board of trustees.”
However, the Appellate Division ruled that Beers’ complaint contending that the library had violated her civil rights under 42 USC 1983 because it terminated her without a hearing was timely.
The question of who is Beers’ employer and whether she was denied her rights to due process will now have to be considered by a state Supreme Court judge.
The decision, Beers v Village of Floral Park, 262 AD2d 315 , is posted on the Internet at:
http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=%22BARBARA+BEERS%22&rlt=CLID_QRYRLT508845531171910&rltdb=CLID_DB199475431171910&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA289785431171910&sv=Split&tempinfo=word&vr=2.0
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Individual appointed to a public office does not have a right to reappointment to such public office after the individual’s term of office expires
Individual appointed to a public office does not have a right to reappointment to such public office after the individual’s term of office expires
Gupta v Town of Brighton, 2nd Cir., 182 F.3d 899
Is an individual entitled to be reappointed to public office upon the completion of his or her term? The Gupta decision demonstrates that the individual must be able to prove that he or she had a constitutional right to be continued in the office to prevail.
Brijen K. Gupta, a member of the Board of Trustees of the Brighton Memorial Library, was not reappointed to the board by the Town Council when his term expired. Claiming that he was denied reappointment (a) in retaliation for his public criticism of elected officials engaging in extramarital activities and (b) because of racial animus, Gupta sued the Town of Brighton, its Town Supervisor Sandra Frankel and one of its Council members, Robert Barbato, in federal court.
The Second Circuit U.S. Court of Appeals said that Gupta’s “claims are without merit” and sustained a federal district court judge’s ruling summarily dismissing Gupta’s complaint.
As to Gupta’s claim that his due process rights had been violated because he was not reappointed, the Circuit Court pointed out that in order to get the issue before a jury, much less prevail, Gupta had to show that he had the constitutionally required “legitimate claim of entitlement” to reappointment, citing Board of Regents v. Roth, 408 U.S. 564.
The court concluded that because Gupta was unable to demonstrate any entitlement to, or property interest in, the reappointment, the lower court properly dismissed his petition.
The Circuit Court commented that while Gupta alleged improper motive on the part of two of the five board members, “he has made no substantiated allegations that the remaining three board members were so motivated.” Accordingly, the court concluded, there is insufficient evidence of either discrimination or retaliation, especially since the vote not to reappoint him as a trustee of the library was unanimous.
.
Gupta v Town of Brighton, 2nd Cir., 182 F.3d 899
Is an individual entitled to be reappointed to public office upon the completion of his or her term? The Gupta decision demonstrates that the individual must be able to prove that he or she had a constitutional right to be continued in the office to prevail.
Brijen K. Gupta, a member of the Board of Trustees of the Brighton Memorial Library, was not reappointed to the board by the Town Council when his term expired. Claiming that he was denied reappointment (a) in retaliation for his public criticism of elected officials engaging in extramarital activities and (b) because of racial animus, Gupta sued the Town of Brighton, its Town Supervisor Sandra Frankel and one of its Council members, Robert Barbato, in federal court.
The Second Circuit U.S. Court of Appeals said that Gupta’s “claims are without merit” and sustained a federal district court judge’s ruling summarily dismissing Gupta’s complaint.
As to Gupta’s claim that his due process rights had been violated because he was not reappointed, the Circuit Court pointed out that in order to get the issue before a jury, much less prevail, Gupta had to show that he had the constitutionally required “legitimate claim of entitlement” to reappointment, citing Board of Regents v. Roth, 408 U.S. 564.
The court concluded that because Gupta was unable to demonstrate any entitlement to, or property interest in, the reappointment, the lower court properly dismissed his petition.
The Circuit Court commented that while Gupta alleged improper motive on the part of two of the five board members, “he has made no substantiated allegations that the remaining three board members were so motivated.” Accordingly, the court concluded, there is insufficient evidence of either discrimination or retaliation, especially since the vote not to reappoint him as a trustee of the library was unanimous.
.
Rescinding a letter of resignation
Rescinding a letter of resignationGrogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756
Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.
Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.
The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”
In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.
Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.
The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.
The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”
It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.
For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.
In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:
Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.
Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."
New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."
When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.
The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.
Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.
The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”
In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.
Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.
The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.
The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”
It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.
For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.
In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:
Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.
Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."
New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."
When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.
The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Rescinding a letter of resignation
Rescinding a letter of resignation
Grogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756
Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.
Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.
The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”
In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.
Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.
The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.
The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”
It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.
For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.
In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:
Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.
Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."
New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."
When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.
The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Grogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756
Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.
Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.
The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”
In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.
Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.
The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.
The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”
It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.
For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.
In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:
Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.
Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."
New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."
When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.
The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationships
Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationships
Adler v Pataki, 2nd Circ., 185 F.3d 35
Although the Second Circuit U.S. Court of Appeals has allowed a public employer to terminate a “policy-maker” solely for reasons of patronage, the Adler decision indicates that there is at least one possible exception to this general rule -- when the termination is alleged to involve “mixed-motives.” This case involved allegations that the policy-maker’s termination was not based on political considerations but was in retaliation because the policy-maker’s spouse had sued the State.
Alan Adler, a former deputy counsel with the State’s Office of Mental Retardation and Developmental Disabilities [OMRDD], sued the State, alleging that his First Amendment right of intimate association was violated because OMRDD terminated him because his wife had filed a lawsuit against state officials, including the State Attorney General.
Adler’s wife, a former Assistant Attorney General, was terminated from her position. She commenced a wrongful termination action against the Attorney General alleging that she was fired because she was not a Republican. She filed her lawsuit about a year before Adler was dismissed by OMRDD.
The Circuit Court said that the nature and extent of the right of intimate association is “hardly clear” but concluded that in Roberts v United States Jaycees, 468 U.S. 609, the U.S. Supreme Court has recognized such a right of association with two distinct components:
1. An individual’s right to associate with others in intimate relationships; and
2. A right to associate with others for purposes of engaging in activities traditionally protected by the First Amendment, such as speech and other expressive conduct.
The Circuit Court said that “[i]f simple vindictiveness against the plaintiff on account of his wife’s lawsuit was the defendants’ true motive, a First Amendment violation would be established” [emphasis added], overruling Northern District Judge Frederick J. Scullin Jr.
Judge Scullin had held that Adler was a policy-maker, and therefore he did not have any First Amendment protection against termination solely because of his political affiliation.
In addition, Judge Scullin said that to the extent that Adler’s claim was based on alleged mixed motives -- his political affiliation and his wife’s initiation of litigation against the state -- such an action “was foreclosed” by the Second Circuit’s decision in McEvoy v Spencer, 124 F.3d 92.”
But the three-judge Second Circuit panel said the district judge misinterpreted McEvoy. Although a policy-maker cannot claim First Amendment protection if he or she is dismissed because of political affiliation, “a policy-maker may not be discharged for such reasons as race, sex, or national origin.” Consistent with that view, the court ruled that:
1. Adler could proceed with his claim that he was fired solely in retaliation for his wife’s lawsuit, and not at all for reasons of political patronage.
2. Since Adler was a policy-maker, the State will prevail only if it can “ultimately demonstrate that he was in fact fired solely for reasons of political patronage”.
3. “To the extent that the [State] acted with a mixed motive, i.e., if they fired [Adler] in retaliation for his wife’s activities and for reasons of political patronage,” the McEvoy decision does not control and that the State has the burden of demonstrating that they would have removed the Adler from his position even if his wife had not been involved in litigation against the State.
The lesson here is that where a policy-maker was dismissed because of his or her political affiliation, the federal courts will uphold the termination if there is proof that the separation was the solely based on patronage considerations. But where “mixed-motives” are present, the public employer must prove that the policy-maker would have been terminated even if there were “no mix to the motive” for the termination to survive judicial scrutiny.
.
Adler v Pataki, 2nd Circ., 185 F.3d 35
Although the Second Circuit U.S. Court of Appeals has allowed a public employer to terminate a “policy-maker” solely for reasons of patronage, the Adler decision indicates that there is at least one possible exception to this general rule -- when the termination is alleged to involve “mixed-motives.” This case involved allegations that the policy-maker’s termination was not based on political considerations but was in retaliation because the policy-maker’s spouse had sued the State.
Alan Adler, a former deputy counsel with the State’s Office of Mental Retardation and Developmental Disabilities [OMRDD], sued the State, alleging that his First Amendment right of intimate association was violated because OMRDD terminated him because his wife had filed a lawsuit against state officials, including the State Attorney General.
Adler’s wife, a former Assistant Attorney General, was terminated from her position. She commenced a wrongful termination action against the Attorney General alleging that she was fired because she was not a Republican. She filed her lawsuit about a year before Adler was dismissed by OMRDD.
The Circuit Court said that the nature and extent of the right of intimate association is “hardly clear” but concluded that in Roberts v United States Jaycees, 468 U.S. 609, the U.S. Supreme Court has recognized such a right of association with two distinct components:
1. An individual’s right to associate with others in intimate relationships; and
2. A right to associate with others for purposes of engaging in activities traditionally protected by the First Amendment, such as speech and other expressive conduct.
The Circuit Court said that “[i]f simple vindictiveness against the plaintiff on account of his wife’s lawsuit was the defendants’ true motive, a First Amendment violation would be established” [emphasis added], overruling Northern District Judge Frederick J. Scullin Jr.
Judge Scullin had held that Adler was a policy-maker, and therefore he did not have any First Amendment protection against termination solely because of his political affiliation.
In addition, Judge Scullin said that to the extent that Adler’s claim was based on alleged mixed motives -- his political affiliation and his wife’s initiation of litigation against the state -- such an action “was foreclosed” by the Second Circuit’s decision in McEvoy v Spencer, 124 F.3d 92.”
But the three-judge Second Circuit panel said the district judge misinterpreted McEvoy. Although a policy-maker cannot claim First Amendment protection if he or she is dismissed because of political affiliation, “a policy-maker may not be discharged for such reasons as race, sex, or national origin.” Consistent with that view, the court ruled that:
1. Adler could proceed with his claim that he was fired solely in retaliation for his wife’s lawsuit, and not at all for reasons of political patronage.
2. Since Adler was a policy-maker, the State will prevail only if it can “ultimately demonstrate that he was in fact fired solely for reasons of political patronage”.
3. “To the extent that the [State] acted with a mixed motive, i.e., if they fired [Adler] in retaliation for his wife’s activities and for reasons of political patronage,” the McEvoy decision does not control and that the State has the burden of demonstrating that they would have removed the Adler from his position even if his wife had not been involved in litigation against the State.
The lesson here is that where a policy-maker was dismissed because of his or her political affiliation, the federal courts will uphold the termination if there is proof that the separation was the solely based on patronage considerations. But where “mixed-motives” are present, the public employer must prove that the policy-maker would have been terminated even if there were “no mix to the motive” for the termination to survive judicial scrutiny.
.
Probationary termination
Probationary termination
Green v Board of Education, 263 AD2d 385
Verna Green, a New York City probationary teacher, was terminated from her position. She sued, seeking reinstatement to her former position.
The Appellate Division sustained a lower court’s dismissal of Green’s petition. It pointed out that Green, as a probationary employee, could be terminated without a statement of reasons provided that the termination was not made in bad faith, was not made in violation of statutory or decisional law, or made for unconstitutional or illegal reasons.
Green had the burden of establishing such bad faith or illegal reasons were the basis for her termination. On this issue, the Appellate Division commented that “conclusory allegations of bad faith are insufficient to meet this burden or to warrant a hearing.”
.
Green v Board of Education, 263 AD2d 385
Verna Green, a New York City probationary teacher, was terminated from her position. She sued, seeking reinstatement to her former position.
The Appellate Division sustained a lower court’s dismissal of Green’s petition. It pointed out that Green, as a probationary employee, could be terminated without a statement of reasons provided that the termination was not made in bad faith, was not made in violation of statutory or decisional law, or made for unconstitutional or illegal reasons.
Green had the burden of establishing such bad faith or illegal reasons were the basis for her termination. On this issue, the Appellate Division commented that “conclusory allegations of bad faith are insufficient to meet this burden or to warrant a hearing.”
.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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