Failing to participate in a counseling program results in disciplinary action

Failing to participate in a counseling program results in disciplinary action
Siciliano v Safir, 259 AD2d 366

New York City police officer Matthew Siciliano was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.

Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.

The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”

The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving Department’s requirements for order, authority and discipline. It ruled that the Department’s determination to dismiss Siciliano is entitled to “great leeway.”

Commenting that the penalty imposed did not shock its sense of fairness, the Appellate Division dismissed Siciliano’s appeal.
NYPPL

Terminating an educator during his or her probationary period

Terminating an educator during his or her probationary period
Green v Bd. of Ed., 262 AD2d 411

The Green decision succinctly sets out the basic guidelines used by courts in determining if an educator was lawfully terminated if he or she was dismissed during, or at the end of, his or her probationary period without being given a statement of the reasons for the termination or an administrative hearing.

Verna Green, a New York City School District probationary teacher, was dismissed by the Board of Education during probation.

The Appellate Division, affirming a lower court’s dismissal of Green’s Article 78 action seeking reinstatement, said:

1. A probationary employee may be terminated without a statement of any reasons for the termination or per-termination hearing provided the termination (1) was not made in bad faith, (2) did not constitute a violation of statutory or decisional law, or (3) was not based on any unconstitutional or illegal reasons;

2. The former probationary employee has the burden of establishing that his or her termination was made in bad faith or for illegal reasons;

3. The former probationer’s conclusory allegations that the employer acted in bad faith do not meet this burden or warrant a hearing.

In another probationary termination case, Williams v Franklin Square Union Free School District, 261 A.D.2d 628, the Appellate Division dismissed an Article 78 action brought by Jeanne M. Williams. Williams had asked the court to order the district to “restore [her] to her position as an elementary [school] teacher.”

The court dismissed her petition, stating that there was no evidence in the record that the district’s denying Williams tenure was for a legally impermissible reason. In addition, the Appellate Division held that “there is no evidence that [Williams] acquired tenure by estoppel.”
NYPPL

Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun

Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun

Materials For the Arts (MFTA) is a program within the New York City Department of Cultural Affairs that collects donated materials and makes them available to not-for-profit arts groups.

Jesse Charland managed a warehouse where items donated to MFTA, including theatre props, are inventoried and stored.

Charland was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he had pointed a replica of a handgun at a supervisor while making threatening comments about “going postal” and needing only “one bullet.”

OATH Administrative Law Judge Kevin Casey credited the supervisor's testimony that the gun looked real and that she felt threatened.

As for Charland's claim that he was only joking, even Charland's witness acknowledged that if one was unfamiliar with Charland's sarcastic sense of humor, “you would take” it as a threat.

ALJ Casey also found that Charland disobeyed orders and was discourteous. The penalty recommended by the ALJ: termination.

Other disciplinary actions taken against public employees involved in “practical jokes” or “horseplay” include:

1. The Corning City School District charging a teacher with using physical force against a student -- pinching the student with a pair of pliers. Disciplinary Hearing Officer James R. Markowitz did not accept the teacher's efforts to excuse the episode as merely classroom "horseplay" and suspended the teacher for two weeks without pay. [NYS Department of Education Disciplinary File 3310].

2. Disciplinary action taken against a supervisor who engaged in a number of off-duty practical jokes resulted the supervisor’s demotion and being placed on a disciplinary probation for six-months [Sguanci v Commissioner of Public Works, Broome County, 158 AD2d 788].

3. A teacher being suspended without pay for one-year after playing practical joke on a supervisor using a fake spider. [Decisions of the Commissioner of Education, 10842].

The decision, Dept. of Cultural Affairs v Charland, OATH #1766/10, is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1766.pdf
NYPPL

Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law

Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law
Toshunbe and Buffalo Board of Education, 32 PERB 3026

Doris Toshunbe was served with disciplinary charges alleging 21 counts of incompetence, 12 counts of insubordination and 11 counts of misconduct. The arbitrator, “apparently ... based on the disciplinary charges before him ... found that Toshunbe was ‘stubborn, abstinent [sic] and lack [sic] respect for authority.’” He ordered that Toshunbe be suspended for two weeks without pay, which the district could deem “a progressive disciplinary action.”

Toshunbe challenged the arbitrator’s decision by filed an improper practice charge with PERB, alleging “improper motivation” by the district. After discussing a number of the procedural issues concerning timeliness, PERB rejected her petition on the basis of “lack of jurisdiction.”

PERB said that “review of an arbitrator’s award is not available in an improper practice proceeding against an employer ... review of that award is available under Civil Practice Law and Rules [CPLR] Article 75.”

Explaining that “to avoid our becoming a substitute for or an alternative to the statutory review procedures, a CPLR proceeding should be the preferred mechanism for the review, modification or vacatur of disciplinary arbitration awards, absent extraordinary circumstances,” PERB sustained the Director of Public Employment Practices and Representation’s determination.
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Selection of arbitrators

Selection of arbitrators
Suffolk Co. PBA v Suffolk, Sup. Ct., Suffolk Co., [Not selected for publication in the Official Reports]

May a legislative body limit the parameters used to select arbitrators in connection with collective bargaining, impasse resolution and contract administration?

Yes, if the reasons are legitimate and the action is consistent with the relevant collective bargaining agreement, the Supreme Court of Suffolk County ruled. Suffolk County PBA sought court review of Suffolk County’s Resolution No. 377-1998, in which the county legislature set out a policy “for the selection of arbitrators in all areas of collective bargaining.”

The reason given for the resolution: The county legislature said that the county has been adversely affected from a fiscal standpoint by the selection of arbitrators for the handling of binding arbitration matters, for collective bargaining agreements voluntarily submitted to arbitration, and for the resolution of labor disputes because of a predilection towards choosing either the same arbitrator or an arbitrator who has used arbitration decisions from an adjacent County rendered by him or her as a ping-pong to ratchet up labor benefits in Suffolk County.

The resolution stated that the county would not consent to use arbitrators who had been involved in any proceeding in which Nassau County was a party during the prior three years.

The Taylor Law contract between the Suffolk County PBA and the county provided that the American Arbitration Association (AAA) would appoint an arbitrator to conduct hearings pursuant to AAA’s voluntary rules in disciplinary proceedings and grievance proceedings.

These rules provided that in the event a party does not return the list of arbitrators sent to it by AAA, all persons are deemed acceptable to act as arbitrators. The rules further provide that if an appointment cannot be made from the submitted lists, the administrator of the AAA may appoint “other members of the panel without submission of any additional list.”

According to the decision, if the county is unable to select any arbitrator as a result of Resolution 377-1998, the AAA may appoint arbitrators without the consent of the county under the terms of the Taylor Law agreement.

PBA sued, claiming that the resolution constituted a unilateral modification of the grievance procedures for both contract violations and employee discipline in violation of the Taylor Law. Supreme Court Justice Cannavo noted, “once the parties have reached an agreement and entered into a collective bargaining agreement, the public employer cannot unilaterally change a term or condition of the contract, citing Roma v. Ruffo, 92 NY2d 489.

However, the court said that the resolution did not change any of the express provisions of the contract by limiting the selection of an arbitrator. According to the ruling, “the PBA and the County bargained and reached an agreement whereby the County was given the unfettered ability to reject arbitrators for any or no reason.”

This, said Justice Cannavo, meant that the county’s ability to reject an arbitrator was not affected by the adoption of Resolution 377-1998 insofar as it limits the selection of arbitrators. Therefore, the resolution did not constitute a unilateral change in the terms of the contract.

The court dismissed the PBA’s petition. It found that the underlying purpose of the resolution “is to control the County’s selection of arbitrators to prevent the ‘ratcheting’ up of salaries in those situations where the County has any discretion concerning the choice of arbitrators, and this bears on a legitimate concern of government.”
NYPPL

Recalling firefighters on General Municipal Law Section 207-a disability leave to report for light duty

Recalling firefighters on General Municipal Law Section 207-a disability leave to report for light duty
Cohoes v Local 2562, IAFF, Court of Appeals, 94 NY2d 686
Barnes v Council 82 [Monroe], Court of Appeals, 94 NY2d 719

What is the proper procedure for a municipal employer to a call disabled firefighter or police officer back to work for a light duty assignment? The Cohoes and Monroe cases offer some of the clearest judicial views on the administrative processing of GML Section 207-a/207-c matters involving light duty.

The Cohoes case

In this appeal, the Appellate Division considered the authority of a municipality to direct a firefighter receiving Section 207-a benefits to report for light-duty assignments.

Disagreeing with some of the rulings made by a state Supreme Court justice, the Appellate Division set out a number of guidelines for recalling an individual to perform light-duty. The Court of Appeals affirmed the Appellate Division’s ruling.

The decisions offer guidance on suspension of General Municipal Law Section 207-a benefits should the individual fail to report for duty, and explains when due process is required. The court set out the following guidelines:

1. The municipality must have the firefighter examined by the municipality’s physician to determine the individual’s fitness.

2. If the report indicates that the firefighter is fit to return to light-duty, he or she may be directed to report for appropriate assignment. Unless a Taylor Law agreement requires some administrative hearing, administrative due process does not require that the municipality hold a hearing prior to its issuing its return to work order.

3. If the firefighter contests the municipality’s directive to report for light-duty, he or she must submit documentation regarding his or her alleged medical inability to perform light-duty tasks.

4. If such documentation is submitted, the municipality is required to conduct an “evidentiary hearing” before it may take any action to modify the Section 207-a benefits being provided to the firefighter.

5. If the firefighter fails to submit medical evidence that he or she is unable to perform light-duty, he or she is entitled to a hearing before a final termination of Section 207-a benefits is imposed. However, the municipality is authorized to immediately withhold payroll checks because the firefighter failed to report to work as he or she did not provide the necessary “contrary medical documentation” required.

The Appellate Division also said that a disabled firefighter who objects to his or her recall for light-duty and submits the required medical documentation may not be required to charge his or her continued absence to accrued leave credits pending a final determination of their case.

Significantly, the court said the rights of individuals who provided “contrary medical documentation” are different from those of individuals who did not submit such documentation.

For instance, individuals who fail to submit such documentation may have their Section 207-a benefits discontinued immediately and must charge their continued absence to their leave credits, it any, if they wish to remain on the payroll.

But the municipality may not require the individuals who provided the required medical documentation to charge their absence to their leave credits in order to remain on the payroll, the court said. It ruled that such action would be improper because the municipality controls the time frame to be followed in completing the required administrative process.

Another issue involved the union’s demand that recall directives be submitted to arbitration. The Appellate Division observed that Section 207-a “does not dictate the procedures to be followed when a firefighter requests a due process hearing to challenge a municipality’s medical opinion.”

While there is no public policy impediment to the arbitration of light-duty disputes where the parties have so agreed, it is not available in instances where there is no such agreement between the parties in place, said the court.

The decision notes that the Taylor Law contract between the parties in the Cohoes case did not specifically provide for the arbitration of any challenge to the City’s directing disabled firefighters to report for light-duty.

Accordingly, said the court, “with no reference to light-duty assignments and no procedure described for contesting [such determinations], petitioners’ dispute does not fall within the terms or conditions of employment encompassed by the broad definition of grievances in the parties’ contract.”*

Do the rules outlined above also pertain to cases in which a municipality orders a firefighter to report for full duty? And do these apply to cases under GML Section 207-c, a parallel law that covers police officers? The court did not address those questions, but presumably the same procedures and guidelines would apply in such cases as well.


The Monroe case

The Monroe case suggests that municipalities do not have to submit disputes involving light duty to contract arbitration unless the contract specifically provides for arbitration of such disputes.

David Monroe worked for the Schenectady County Sheriff’s Department from 1985 to July 15, 1994 when he was terminated as a correction lieutenant for cause. In lieu of pursuing arbitration over his termination, Monroe agreed accepted a demotion and was reinstated to the position of correction officer.

Monroe returned to work on January 17, 1995 as a correction officer but departed within an hour, complaining of an inability to work due to stress and anxiety. On February 7, 1995, Monroe filed an application for, and ultimately won an arbitration award providing full disability benefits pursuant to General Municipal Law Section 207-c.

On January 18, 1997 and March 19, 1998, Monroe was examined by Steven Rappaport, a psychiatrist, who concluded that Monroe was capable of performing light-duty work for four to six weeks and could then return to full duty.

Monroe resisted an order to report for light-duty and “submitted unsigned reports by his own physicians opining that he was not fit to return to work for the Sheriff’s Department.”

The county told Monroe and his union that Monroe’s dispute over the return to work order was governed by Article XI of the county’s procedures. Under that provision, a step three grievance must be filed within 10 days of the employee’s receipt of a back-to-work order. But no grievance was ever filed.

Instead, a notice of arbitration on Monroe’s behalf was filed by the union “pursuant to Article 16 of the collective bargaining agreement between the parties ... and the [county’s] revised Article VI light duty assignments ... 207-c procedure”.

The county obtained a stay of arbitration and Council 82 appealed. The Appellate Division upheld the lower court’s granting the county’s motion to stay the arbitration, holding that:

1. General Municipal Law Section 207-c (3), directing that certain action be taken by the employer, leaves no room for negotiation and, thus, removes the issue from the scope of the Taylor Law. Under the clear language of the statute, an officer is entitled to salary and benefits only if he performs the light-duty assignment.

2. The county’s Article XI properly set out a step three grievance to challenge any determination on light duty. Due process is provided because any decision is subject to review under Article 16.3 of the collective bargaining agreement and allows submission of the step three grievance to arbitration before the Public Employment Review Board.

3. The Section 207-c procedure allows an employee to dispute any specific tasks assigned to him pursuant to a light-duty assignment.

The Court of Appeals affirmed the Appellate Division’s ruling.

These administrative procedures belied the union’s claim that an employee would not have meaningful review of the determination of his eligibility for light duty if he or she is not allowed to demand arbitration pursuant to the collective bargaining agreement.

Also the Appellate Division noted that the Court of Appeals has specifically held that General Municipal Law Section 207-c gives the municipality authority to order officers to light duty and such authority is not “subject to mandatory bargaining,” citing Schenectady Police Benevolent Assn. v New York State Public. Employment. Relations Board, 85 NY2d 480).

The court concluded that it is clear that, in any event, the matter is not arbitrable under the agreement between the parties as a reading of the collective bargaining agreement indicates that the county did not agree to the referral of such disputes to arbitration.

* The April 1, 1999 decisions by the Court of Appeals in the Watertown and Indian River School District cases [93 N.Y.2d 132] address the possibility of arbitration even if it is not specifically provided for in the collective bargaining agreement.

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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html ============================================
NYPPL

Name-clearing hearings

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

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.
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