Administrator' terminated after being found guilty of ignoring the Civil Service Law with respect to the appointment of personnel

Administrator' terminated after being found guilty of ignoring the Civil Service Law with respect to the promotion of personnel
Gillen v Smithtown Library, 254 AD2d 486, Affirmed, 94 NY2d 776

An administrator who ignores the mandates of the Civil Service Law when it comes to promoting staff members places himself or herself in harms way, as the Gillen case demonstrates.

Thomas G. Gillen, director of the Smithtown Library, was terminated from his position by the Smithtown Library Board of Trustees after being found guilty of illegally promoting employees in contravention of the Civil Service Law.

The Appellate Division rejected his appeal seeking to overturn the disciplinary action taken against him. As to the penalty of termination, the court said that when considered in light of all of the circumstances of this case, dismissal “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” citing the Court of Appeals ruling in Pell v Bd. of Education, 34 NY2d 222.

The ruling also noted that “a high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed, citing Washington v Dolce, 208 AD2d 937.

In affirming the Appellate Division’s decision, the Court of Appeals said:

"Given [Gillen's] repeated violation of the Civil Service Law, it cannot be said that the penalty imposed is 'so disproportionate to the offense ... as to be shocking to one's sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222)....'

"That the Appellate Division in remanded the matter for the imposition of a new penalty after dismissing four of the charges does not change our decision. A reviewing court generally 'will not presume to determine the precise sanction to be imposed' (Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285).

"Thus, where, as here, several charges have been dismissed on appeal, an appellate court will often remit the matter for an appropriate penalty (id.; see also, Matter of Ahsaf v Nyquist, 37 NY2d 182, 186). Our standard of review remains the same based on the charges sustained, not on those dismissed."
NYPPL

Recovering missing public funds

Recovering missing public funds
Utica Mutual Insurance Co., as the Subrogee of the Town of Sand Lake v. Laura Avery, 261 AD2d 802, motion for leave to appeal denied, 93 NY2d 818

From time to time, a public employee resigns from his or her position after some money is found to be missing. The Utica Mutual decision provides some insights as to what might follow such an event.

A State audit had revealed discrepancies in the financial records of the Town of Sand Lake’s Justice Court, including missing funds in excess of $3,000. Town officials were sufficiently convinced that the clerk of its justice court, Laura Avery, was responsible for the loss that it demanded, and received, her resignation. It later was able to ascertain the precise amount that was missing -- $3,648 -- and filed a claim with its insurance company, Utica Mutual, for the loss. Utica Mutual paid the town $3,648.

Utica, as the town’s subrogee [standing in the place of], then sued Avery to recover the money it paid to the town. Instead of filing an answer, Avery moved to dismiss Utica’s action on the ground it was untimely. A State Supreme Court judge agreed and applying the six-year Statute of Limitations (CPLR 213 (a),[1]), dismissed Utica Mutual’s claim as time barred.

Utica Mutual appealed and lost. The Appellate Division said that “the sole issue on this appeal is whether Supreme Court correctly determined the date on which plaintiff’s cause of action accrued.” Utica had argued that the limitations period did not begin to run until the date on which Sand Lake received the Department of Audit and Control’s official audit since prior to that date the Town’s liability for the missing funds was not fixed.

Not so, said the Appellate Division, affirming the lower court’s ruling. It said that Utica’s cause of action accrued when all events essential to the claim were present so that Utica would be entitled to judicial relief. Presumably Utica would have won its lawsuit against Avery to recover the money it had paid to Sand Lake had it filed a timely action.

The Appellate Division suggested that even a shorter statute of limitations might apply is such situations, commenting that “arguably, the mishandling of the funds in question fits the definition of conversion” [stealing] ... for which the shorter three-year Statute of Limitations of CPLR 214 (3) would apply.” However, both parties adopt the position that, in the absence of a specific Statute of Limitations for an action to recover embezzled funds, the applicable limitations period is six years pursuant to CPLR 213 (1).
NYPPL

Disciplining an employee for off-duty misconduct

Disciplining an employee for off-duty misconduct
Anderson v Safir, App. Div., 260 AD2d 179

The Commissioner of Police found that Michael Anderson and some other New York City police officers were guilty of off-duty misconduct when they “wrongfully placed civilians in fear of imminent physical injury by displaying their guns and using racial epithets.”

The Appellate Division sustained the Commissioner’s dismissing the officers, commenting that the finding of their guilt was supported by substantial evidence, including, in particular, that the officers car pool together and that one of them owned the car described with specificity to the 911 operator at the time of the incident.

Finding that there was no basis to disturb Commissioner’s findings regarding credibility concerning the complainants’ identification testimony, the court confirmed the penalty imposed -- termination.
NYPPL

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