Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct

Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct
Acosta-Rodriguez v City of New York, 2010 NY Slip Op 07470, Decided on October 21, 2010, Appellate Division, First Department

An employee of the New York City Board of Education [BOE] was alleged to have sexually abused two students. When the parents of the children sued, the School Board argued that its was not liable because the abuse by its employee “was not committed in furtherance of school business and was done for [the employee’s] personal reasons.”

The Appellate Division agreed, holding that the BOE cannot be held liable under the theory of respondeat superior.*

The parents also contended that the employee was negligently hired, supervised or retained by BOE. However, said the Appellate Division, the parents “failed to raise a factual issue as to whether, at the time of the employee's hiring, BOE was on notice of facts triggering a duty to inquire further, or to contradict BOE's claim that it conducted its standard pre-employment investigation of the employee.”

As to the parents’ evidence that the BOE was on notice, either actual or constructive, of the employee's propensity for sexual abuse of minors because he “bought pizza for the students and observed them at play,” the court held that such activities “does not constitute notice of the employee's proclivity for sexual abuse.”

The Appellate Division also commented that the incident had occurred off school grounds and that there was nothing in the record indicating that BOE released the students to the employee or even knew that the three were together.

Accordingly, the court concluded that “there are no triable issues as to whether [the students’] injuries were caused by a failure of adequate supervision or a disregard on premises that should have alerted [the BOE] to a hazardous situation.

* The common-law doctrine that holds that an employer is liable for the actions of an employee when the employee's actions are within the scope of the individual's duties.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm
NYPPL

Employment application fraud leads to disqualification for employment

Employment application fraud leads to disqualification for employment
Schindlar v Village of Lloyd Harbor, 261 AD2d 626

Providing false information in his application for appointment as a police officer resulted in Dennis Schindlar’s disqualification and removal from his position with the Village of Lloyd Harbor.

The Suffolk County Department of Civil Service, after holding a hearing, revoked the Schindlar’s certification and appointment as a police officer.

The department’s hearing officer determined that Schindlar had “perpetrated a fraud in claiming residency in the Incorporated Village of Lloyd Harbor.” Schindlar had presented evidence that he resided in Lloyd Harbor, including copies of his driver’s license and voter registration cards. There was also testimony by the owner of the property on which he allegedly resided.

Section 50.4(f) of the Civil Service Law provides for the disqualification of individuals “who has intentionally made a false statement of any material fact in his [or her] application.” A pre-disqualification hearing may be provided where appropriate, it but is not mandated by Section 50.4.

The key due process element in Section 50.4 provides that “no person shall be disqualified ... unless he [or she] has been given a written statement of the reasons ... and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The Appellate Division noted that notwithstanding such evidence submitted by Schindlar, the hearing officer “credited the persuasive documentary evidence to the contrary.” The court said that it was well established that a reviewing court may not weigh evidence or reject the choice made by the hearing officer, especially where there is conflicting evidence and room for choice exists.

Finding that there was substantial evidence in the record to sustain a finding that Schindlar did not in fact reside in Lloyd Harbor during the period in question, the court affirmed Schindlar’s disqualification by the department.
NYPPL

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