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November 01, 2010

False claim - work-related injury

False claim - work-related injury
Egan v Von Essen, 260 AD2d 479

New York City firefighter Richard M. Egan claimed he injured himself by falling out of a chair while at work. On May 10, 1994, Egan filed an application for a service-incurred disability pension with the Fire Department Pension Fund based on back injuries he allegedly suffered by the fall.

In the course of disciplinary action taken against Egan, the administrative law judge [ALJ] found that Egan had injured his back while participating in a nonwork-related jujitsu class. In addition, the ALJ decided that Egan violated certain regulations of the Fire Department as well as his oath of office by filing an official report containing statements concerning the incident that he knew were untrue.

Based on the findings and recommendation of the ALJ, the Fire Commissioner fired Egan. Egan challenged the Commissioner’s decision, contending that it was not supported by substantial evidence. He also contended that even assuming that he was guilty of the charges filed against him, the penalty of dismissal was unduly harsh.

The Appellate Division rejected Egan’s appeal. It said that under the circumstances of this case, it found that the charges were supported by substantial evidence, including Egan’s “admission of wrongdoing to several witnesses.”

As to the penalty imposed by the commissioner, the court said that “contrary to [Egan’s] contention, the penalty of dismissal was not ‘shocking to one’s sense of fairness’, in view of the evidence that he violated Fire Department regulations and engaged in acts of dishonesty,” citing Pell v Board of Education, 34 NY2d 222.

Similarly, in Miller v NYC Department of Corrections, 260 AD2d 190, the Appellate Division, 1st Department, affirmed the dismissal of New York City correction officer Marie Miller based on the correction commissioner’s finding that Miller made “false and misleading statements during investigatory interviews,” and, accordingly, is guilty of conduct unbecoming a correction officer.
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Free speech

Free speech
Council 82 [ex rel Kuhnel], v State of New York, App. Div., 255 AD2d 54, Affirmed, 94 NY2d 321

State Correction Department rules do not trump a correction officer’s First Amendment right to fly a Nazi flag at his home said the Appellate Division in a decision that affirmed an arbitrator’s ruling in the Kuhnel case. This “free speech” ruling was affirmed by the Court of Appeals.

Edward Kuhnel, a state correction officer, flew a Nazi flag from the front porch of his home. He was served with a notice of discipline charging him with violating a Correction Department’s rule providing that:

[a] no employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or [i]ts personnel; and

[b] an employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.

Kuhnel was suspended without pay pending the completion of a disciplinary arbitration. An arbitrator decided that while the state had probable cause to suspend Kuhnel without pay pursuant to the collective bargaining agreement, he was not guilty of the charges contained in the notice of discipline.

The arbitrator ordered the department to reinstate Kuhnel to his position with back pay and benefits.

The department attempted to have the arbitrator’s award vacated [Section 7511 of the Civil Practice Law and Rules], while Council 82 moved to confirm the award. Rejecting the department’s claims that the arbitrator’s award was totally irrational, the Appellate Division focused on “whether the underlying arbitration or the award resulting therefrom was violative of a strong public policy.”

The court held that the department “failed to demonstrate either that the disciplinary charges brought against Kuhnel were not properly the subject of arbitration or that the public policy of this State, ... prohibits, in an absolute sense, the presence within our prison system of those that display the Nazi flag, or any other flag that may be seen as symbolizing bigotry, racism or totalitarianism.” Accordingly, said the court, it was “constrained to affirm” the arbitration award.

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

"Simply put then, the issue before this Court is not whether we agree with the arbitrator's assessment of the evidence, interpretation of the contract or reasoning in fashioning the award. We are not authorized to revisit those questions. We must focus on the result only, and can vacate the award if the arbitration agreement itself violates public policy; if the award intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this State. Our analysis cannot change because the facts or implications of a case might be disturbing, or because an employee's conduct is particularly reprehensible…. However, in order for us to adopt the State's argument, we would have to reject the specific factual findings made by the arbitrator that Kuhnel in fact posed no such threat. As abhorrent as Kuhnel's personal conduct is, Judges cannot reject the factual findings of an arbitrator simply because they do not agree with them (see, United Paperworkers Intl. Union v Misco, Inc., 484 US 29, at 38)."
NYPPL

Testing for drugs

Testing for drugs
Roy v City of New York, 685 NY2d 668

How much evidence is sufficient to require an employee to take a drug test? And if the employee refuses to take the drug test, is that grounds for dismissal?

The Appellate Division addressed those questions in the Roy case. The court ruled that an informant’s statement to a police officer that she had observed Gary Roy, a New York City police officer, using drugs on numerous occasions constituted substantial evidence and provided the amount of reasonable suspicion required for an order directing a drug test for cause.

The Appellate Division said the informant’s story was reasonably detailed. The fact that some of information provided by the informant was self-incriminatory also suggested credibility to the court. The Appellate Division also commented that Roy’s termination for refusing to submit to a drug test when ordered to do so, under the circumstances, did not shock its sense of fairness, upholding Roy’s termination.

However, there was a “back pay” issue to be resolved. The Appellate Division said that Roy had been suspended without pay for more than 30 days pending resolution of the disciplinary action. The decision notes that Roy was suspended without pay on May 2, 1996 and dismissed, following the hearing and determination of the charge supporting the suspension, on July 26, 1996.

Since there was no evidence that Roy was responsible for the delay in the determination of the charge beyond the 30 days suspension period permitted by Civil Service Law Sections 75(3), he is entitled to back pay for the period from June 2, 1996 to July 26, 1996, less any earnings he may have received from other sources during that period.

This is somewhat troublesome, however. Sections 75, 76 and 77 of the Civil Service Law originally provided for such an adjustment for earnings received from other sources during a period of suspension without pay in excess of 30 days upon the restoration of the individual to his or her former position.

But these three sections were amended in 1984. Chapter 710 of the Law of 1984 deleted the phrase “compensation which he may have earned in any other employment or occupation....”

These sections now provide that an employee who is acquitted of disciplinary charges or whose reinstatement is directed by a civil service commission or the court is to be “restored to his position with full pay for the period of the suspension less the amount of any unemployment insurance benefits he may have received during such period.” It would seem that the same rationale would be applied in cases where an individual has been suspended without pay for a period in excess of that authorized by statute.

Similar language is used in Education Law Section 3020-a.4(b) with respect to the payment of back salary upon acquittal.
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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. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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