Dual employment
Holbrook v Rockland Co, 260 AD2d 437
Most public officers and employees serve in one position at a time. Sometimes, however, an individual may be employed by two different jurisdictions simultaneously. Such dual employments generally require the knowledge and approval of the appointing authorities involved.*
Dual employments are often suspect -- particularly when both are purported to be “full-time” posts. Another consideration: is there the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation. As the Attorney General advised in an informal opinion:
In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17, May 11, 1998].
The opinion notes that the “leading case on compatibility of office” is People ex rel. Ryan v Green, 58 NY 295. In Ryan the Court of Appeals said that “two offices are incompatible is one is subordinate to the other or if there is an inherent inconsistency between the two offices.”
The Holbrook case involved a “dual employment” situation, but with a novel twist. Here the “appointing authority” in each instance was the voter. Charles E. Holbrook had been elected to two different Rockland County public offices, by two different electorates, and, as a result, was simultaneously serving in two different elective offices in two different jurisdictions.
However, in 1993 Rockland County had passed a local law -- the so-called “two hats” law -- barring an elected county officials from holding any other elected town or village office [Rockland County Local Laws of 1993, #6]. In other words, an individual could not hold a county elective office if in so serving he or she would be simultaneously serving as a local elected officer in another public jurisdiction.**
Holbrook, who was elected to serve in the Rockland County Legislature, had also been elected to position of town supervisor of a town in Rockland County. He challenged Local Law 1993 #6, as well as a 1997 local law providing for reapportionment of election districts, contending that both local laws were invalid because they had been enacted without a voter referendum as mandated by Municipal Home Rule Law Section 23(2)(e) and (f).
The Appellate Division affirmed a ruling by a Supreme Court justice rejecting Holbrook’s complaint, holding that both local laws had been validly adopted. The decision noted that while Section 23(2)(e) and (f) requires a referendum if the proposed local law “changes the term of an elective office”, or “curtails any power of an elective officer,” Rockland’s “two hat” laws merely prohibited Rockland County legislators from simultaneously holding a second elective office. The Appellate Division said that the local laws in question neither changed the terms of an elective office nor curtail any powers of an elective officer.
* Dual employments, in which appointments to different positions are made, are not the same as a “joint appointment.” In a joint appointment, two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two appointing authorities typically share the personnel service costs.
** Local Law 1993, #6, permitted elected county officials then holding two elective offices to continue to serve in both offices until January 1, 1998.
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
November 02, 2010
Duty of fair representation
Duty of fair representation
Matter of Beattie, 32 PERB 3023
Representation by an attorney provided by a union is an important right of membership in an employee organization. The Matter of Beattie decision makes the point that an employee organization’s duty to represent a member “in any further pursuit” of his or her claims against an employer, or in defense against any adverse action taken by the employer, ceases if the individual employs a private attorney to handle the matter.
Guilderland Teachers Aide Association member Patricia Beattie filed improper practice charges against the association with PERB in which she alleged that:
1. The association refused to file a complaint charging another school district employee with sexual harassment when asked to do so.
2. The association’s president told Beattie she would lose her job [sic] because she had employed a private attorney to represent her concerning her sexual harassment complaint.
According to the PERB decision, in response to a June 1996 complaint, Rex Trobridge, an association representative, initially determined that Beattie might have been sexually harassed by another school district employee. Trobridge later learned that in January 1996 the employee Beattie named in her complaint alleged the reverse: that Beattie had sexual harassed him. The association advised Beattie that it would provide her with legal representation in both cases.
Before the association’s attorney had filed any complaint with the Division of Human Rights or had met with the school superintendent on her behalf, Beattie hired private counsel. PERB said that at that point in time the association’s duty to represent her ceased.
Meanwhile, a private attorney named Thomas Kenney was employed by the Guilderland School District to investigate both sets of allegations. Kenney found that “each interviewee with knowledge of the events covered by the complaints corroborated [the other employee’s] claims [of sexual harassment] and offered no support for Beattie’s claims [of sexual harassment].” Ultimately Beattie was told of Kenney’s findings and was formally reprimanded by the school superintendent.
PERB sustained its administrative law judge’s dismissal of the charges Beattie filed against the association. It ruled that Beattie’s claim that her complaint “was handled in a perfunctory manner” by the association was not supported by the record.
PERB, in a footnote, observed that Association attorney Harold Beyer testified that he intended to pursue Beattie’s complaint with the State Division of Human Rights after exhausting the school district’s sexual harassment procedure.
As to Beattie’s allegation that association president Barbara Coogan violated the Taylor Law when she commented that “Beattie was crazy to hire a private attorney...,” PERB said that “there is simply nothing improper in the timing or content” of the statement.
PERB said that it viewed Cooper’s statement as “merely an expression of [her] incredulity that a union member would choose not to utilize the counsel provided by the union, at no charge, and instead choose to pay a private attorney.”
Such a statement, said PERB, in no way violated the Taylor Law since it was an expression of an opinion by Cooper, and as such, “is not actionable.
NYPPL
Matter of Beattie, 32 PERB 3023
Representation by an attorney provided by a union is an important right of membership in an employee organization. The Matter of Beattie decision makes the point that an employee organization’s duty to represent a member “in any further pursuit” of his or her claims against an employer, or in defense against any adverse action taken by the employer, ceases if the individual employs a private attorney to handle the matter.
Guilderland Teachers Aide Association member Patricia Beattie filed improper practice charges against the association with PERB in which she alleged that:
1. The association refused to file a complaint charging another school district employee with sexual harassment when asked to do so.
2. The association’s president told Beattie she would lose her job [sic] because she had employed a private attorney to represent her concerning her sexual harassment complaint.
According to the PERB decision, in response to a June 1996 complaint, Rex Trobridge, an association representative, initially determined that Beattie might have been sexually harassed by another school district employee. Trobridge later learned that in January 1996 the employee Beattie named in her complaint alleged the reverse: that Beattie had sexual harassed him. The association advised Beattie that it would provide her with legal representation in both cases.
Before the association’s attorney had filed any complaint with the Division of Human Rights or had met with the school superintendent on her behalf, Beattie hired private counsel. PERB said that at that point in time the association’s duty to represent her ceased.
Meanwhile, a private attorney named Thomas Kenney was employed by the Guilderland School District to investigate both sets of allegations. Kenney found that “each interviewee with knowledge of the events covered by the complaints corroborated [the other employee’s] claims [of sexual harassment] and offered no support for Beattie’s claims [of sexual harassment].” Ultimately Beattie was told of Kenney’s findings and was formally reprimanded by the school superintendent.
PERB sustained its administrative law judge’s dismissal of the charges Beattie filed against the association. It ruled that Beattie’s claim that her complaint “was handled in a perfunctory manner” by the association was not supported by the record.
PERB, in a footnote, observed that Association attorney Harold Beyer testified that he intended to pursue Beattie’s complaint with the State Division of Human Rights after exhausting the school district’s sexual harassment procedure.
As to Beattie’s allegation that association president Barbara Coogan violated the Taylor Law when she commented that “Beattie was crazy to hire a private attorney...,” PERB said that “there is simply nothing improper in the timing or content” of the statement.
PERB said that it viewed Cooper’s statement as “merely an expression of [her] incredulity that a union member would choose not to utilize the counsel provided by the union, at no charge, and instead choose to pay a private attorney.”
Such a statement, said PERB, in no way violated the Taylor Law since it was an expression of an opinion by Cooper, and as such, “is not actionable.
NYPPL
Criminal conviction may bar teaching if the applicant cannot satisfy the relevant criteria set out in Section 753 of the Correction Law
Criminal conviction may bar teaching if the applicant cannot satisfy the relvant criteria set out in Section 753 of the Correction Law
Arrocha v NYC Bd. of Education, 93 NY2d 361
Sometimes an individual who has been convicted of a crime applies for a license to teach or for employment as a teacher.
The Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime. In other words, an individual may not be automatically barred from teaching because of his or her previous conviction. Instead, the school board should examine the individual’s application in light of the eight criteria set out in Section 753 of the Correction Law:
a. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
b. The specific duties and responsibilities necessarily related to the license or employment sought.
c. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
d. The time that has elapsed since the occurrence of the criminal offense or offenses.
e. The age of the person at the time of occurrence of the criminal offense or offenses.
f. The seriousness of the offense or offenses.
g. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
h. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”
In the Arrocha case, the Court of Appeals -- New York’s highest court -- overturned lower courts’ rulings and said the New York City Board of Education properly considered all eight factors when it refused to grant a teaching license to a person with a criminal record.
Jose Luis Arrocha asked the New York City Board of Education for a license to teach high school Spanish in 1996. He noted in his application form that he had been convicted in 1987, at age 36, of criminal sale of a controlled substance (a B felony) for selling a $10 bag of cocaine to an undercover officer, and subsequently served the minimum of a two-to-six year prison term.
Arrocha submitted a certificate of relief from disabilities. Courts have discretion to issue such certificates to ex-convicts, which are intended to remove any automatic bar to employment or licensure (Correction Law Section 701). Arrocha also submitted letters of recommendation attesting to his skill as a teacher.
His application was rejected on the grounds that his criminal conviction was “serious in nature” and that employment as a teacher “would pose a risk to the safety and welfare of the student population and Board of Education employees.”
Arrocha sued, contending that (1) it was arbitrary and capricious of the board to block his application because of a nine-year old conviction, and (2) the board’s decision violated the Correction Law.
The Court of Appeals said that as a general rule, the courts “cannot interfere [with an administrative decision] unless there is no rational basis for the exercise of discretion” by the administrative agency.
The court pointed out that Section 752.1 of the Correction Law allows an employer to reject an applicant without running afoul of the law where “a direct relationship between [the previous criminal offense] and the specific license or employment sought” exists. Also, Section 752.2 allows such a decision where granting the license or employment would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” It observed that the school board detected a “direct relationship” and an “unreasonable risk,” and it was reluctant to substitute its judgment for that of the board.
The Court of Appeals said the board appeared fair in its deliberations. The record showed that the board had considered all eight of the factors in reaching its conclusion, balancing elements that favored granting Arrocha a license against others that tended to mitigate against such an action.
The Court of Appeals concluded that the board was not obligated to rebut the presumption of Arrocha’s rehabilitation and was entirely justified in considering the nature and seriousness of this particular crime, a B felony cocaine sale “committed by Arrocha at the mature age of 36...” The court said Arrocha’s age when apprehended was legitimately viewed as being “of overriding significance when issuing a high school teaching license.”
The decision suggests that it is consistent with public policy of New York State to refuse to employ a person convicted of drug dealing as a teacher. Support for this view may be found in Section 3020-a of the Education Law.
Section 3020-a(2)(b) bars the suspension without pay of a teacher against whom disciplinary charges have been filed, unless otherwise permitted under an alternate disciplinary procedure negotiated pursuant to the Taylor Law, except in cases where the individual has been convicted of a felony involving illegal drugs. The inclusion of this exception suggests the legislature is deeply troubled by the prospect of schoolchildren being exposed to teachers with felony drug convictions. Section 3020-a(2)(b) also allows a school district or BOCES to suspend a teacher against whom disciplinary charges have been filed without pay if he or she has been convicted of a felony involving the physical or sexual abuse of a minor or a student.
NYPPL
Arrocha v NYC Bd. of Education, 93 NY2d 361
Sometimes an individual who has been convicted of a crime applies for a license to teach or for employment as a teacher.
The Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime. In other words, an individual may not be automatically barred from teaching because of his or her previous conviction. Instead, the school board should examine the individual’s application in light of the eight criteria set out in Section 753 of the Correction Law:
a. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
b. The specific duties and responsibilities necessarily related to the license or employment sought.
c. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
d. The time that has elapsed since the occurrence of the criminal offense or offenses.
e. The age of the person at the time of occurrence of the criminal offense or offenses.
f. The seriousness of the offense or offenses.
g. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
h. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”
In the Arrocha case, the Court of Appeals -- New York’s highest court -- overturned lower courts’ rulings and said the New York City Board of Education properly considered all eight factors when it refused to grant a teaching license to a person with a criminal record.
Jose Luis Arrocha asked the New York City Board of Education for a license to teach high school Spanish in 1996. He noted in his application form that he had been convicted in 1987, at age 36, of criminal sale of a controlled substance (a B felony) for selling a $10 bag of cocaine to an undercover officer, and subsequently served the minimum of a two-to-six year prison term.
Arrocha submitted a certificate of relief from disabilities. Courts have discretion to issue such certificates to ex-convicts, which are intended to remove any automatic bar to employment or licensure (Correction Law Section 701). Arrocha also submitted letters of recommendation attesting to his skill as a teacher.
His application was rejected on the grounds that his criminal conviction was “serious in nature” and that employment as a teacher “would pose a risk to the safety and welfare of the student population and Board of Education employees.”
Arrocha sued, contending that (1) it was arbitrary and capricious of the board to block his application because of a nine-year old conviction, and (2) the board’s decision violated the Correction Law.
The Court of Appeals said that as a general rule, the courts “cannot interfere [with an administrative decision] unless there is no rational basis for the exercise of discretion” by the administrative agency.
The court pointed out that Section 752.1 of the Correction Law allows an employer to reject an applicant without running afoul of the law where “a direct relationship between [the previous criminal offense] and the specific license or employment sought” exists. Also, Section 752.2 allows such a decision where granting the license or employment would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” It observed that the school board detected a “direct relationship” and an “unreasonable risk,” and it was reluctant to substitute its judgment for that of the board.
The Court of Appeals said the board appeared fair in its deliberations. The record showed that the board had considered all eight of the factors in reaching its conclusion, balancing elements that favored granting Arrocha a license against others that tended to mitigate against such an action.
The Court of Appeals concluded that the board was not obligated to rebut the presumption of Arrocha’s rehabilitation and was entirely justified in considering the nature and seriousness of this particular crime, a B felony cocaine sale “committed by Arrocha at the mature age of 36...” The court said Arrocha’s age when apprehended was legitimately viewed as being “of overriding significance when issuing a high school teaching license.”
The decision suggests that it is consistent with public policy of New York State to refuse to employ a person convicted of drug dealing as a teacher. Support for this view may be found in Section 3020-a of the Education Law.
Section 3020-a(2)(b) bars the suspension without pay of a teacher against whom disciplinary charges have been filed, unless otherwise permitted under an alternate disciplinary procedure negotiated pursuant to the Taylor Law, except in cases where the individual has been convicted of a felony involving illegal drugs. The inclusion of this exception suggests the legislature is deeply troubled by the prospect of schoolchildren being exposed to teachers with felony drug convictions. Section 3020-a(2)(b) also allows a school district or BOCES to suspend a teacher against whom disciplinary charges have been filed without pay if he or she has been convicted of a felony involving the physical or sexual abuse of a minor or a student.
NYPPL
November 01, 2010
Substantial evidence requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably”
Substantial evidence requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably”
Matter of Lory v County of Wash., 2010 NY Slip Op 07657, Decided on October 28, 2010, Appellate Division, Third Department
Washington County Sheriff's Department charged Chad R. Lory with four counts of misconduct arising out of his employment as a correction officer pursuant to Civil Service Law §75 alleging that Lory (1) failed to perform his assigned duties in a professional manner, (2) failed to obey all lawful orders, (3) engaged in conduct which tended to undermine the efficiency and discipline within the Department, and (4) was inattentive to duty.
The Hearing Officer found Lory guilty of all four charges and recommended that he be terminated from his position. The Washington County Sheriff Hearing Officers findings and recommendation and Lory was dismissed from his position.
In rejecting Lory’s appeal, the Appellate Division addressed a number of substantive and procedural issues. The court found that:
1. “The violations charged were sufficiently detailed to enable [Lory] to prepare an adequate and extensive defense;
2. “Any references to uncharged conduct found in the determination … were necessary to refute [Lory’s] denial of the charge that his attention was diverted from his duties;
3. The Sheriff’s Department ”was not precluded from instituting charges based on conduct that was [earlier] the subject of counseling and complaints”; and
4. “The Hearing Officer's determination is sufficiently detailed, such that petitioner was not deprived of the opportunity to intelligently challenge and obtain adequate judicial review of the same.”
As to the substance of Lory's claims, the Appellate Division said that the standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence. This, said the court, requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably."
Reviewing the record established in the course of the hearing,* the Appellate Division said that it found substantial evidence to support the Hearing Officer’s findings.
In addition, the court said that “credibility determinations are ‘solely within the province of the [H]earing [O]fficer,’ and this Court may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented, citing Perryman v Village of Saranac Lake, 64 AD3d 830.
As to the penalty imposed, the Appellate Division said that the evidence supports the Hearing Officer's determination that petitioner's conduct evidenced a lack of professional judgment and posed a serious security risk. Accordingly, the court said that it did not find the penalty of dismissal "so disproportionate to the offenses as to be shocking to one's sense of fairness."
As to Lory’s contention that the Hearing Officer should have conducted a separate hearing with respect to the penalty to be recommended, the Appellate Division held that under the under the circumstances in this case, “the Hearing Officer did not err in making a penalty recommendation without having first conducted a separate hearing.”
* §75.3, in pertinent part, provides that “If such officer or employee is found guilty, a copy of the charges, his written answer thereto, a transcript of the hearing, and the determination shall be filed in the office of the department or agency in which he has been employed, and a copy thereof shall be filed with the civil service commission having jurisdiction over such position. A copy of the transcript of the hearing shall, upon request of the officer or employee affected, be furnished to him without charge.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07657.htm
NYPPL
Matter of Lory v County of Wash., 2010 NY Slip Op 07657, Decided on October 28, 2010, Appellate Division, Third Department
Washington County Sheriff's Department charged Chad R. Lory with four counts of misconduct arising out of his employment as a correction officer pursuant to Civil Service Law §75 alleging that Lory (1) failed to perform his assigned duties in a professional manner, (2) failed to obey all lawful orders, (3) engaged in conduct which tended to undermine the efficiency and discipline within the Department, and (4) was inattentive to duty.
The Hearing Officer found Lory guilty of all four charges and recommended that he be terminated from his position. The Washington County Sheriff Hearing Officers findings and recommendation and Lory was dismissed from his position.
In rejecting Lory’s appeal, the Appellate Division addressed a number of substantive and procedural issues. The court found that:
1. “The violations charged were sufficiently detailed to enable [Lory] to prepare an adequate and extensive defense;
2. “Any references to uncharged conduct found in the determination … were necessary to refute [Lory’s] denial of the charge that his attention was diverted from his duties;
3. The Sheriff’s Department ”was not precluded from instituting charges based on conduct that was [earlier] the subject of counseling and complaints”; and
4. “The Hearing Officer's determination is sufficiently detailed, such that petitioner was not deprived of the opportunity to intelligently challenge and obtain adequate judicial review of the same.”
As to the substance of Lory's claims, the Appellate Division said that the standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence. This, said the court, requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably."
Reviewing the record established in the course of the hearing,* the Appellate Division said that it found substantial evidence to support the Hearing Officer’s findings.
In addition, the court said that “credibility determinations are ‘solely within the province of the [H]earing [O]fficer,’ and this Court may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented, citing Perryman v Village of Saranac Lake, 64 AD3d 830.
As to the penalty imposed, the Appellate Division said that the evidence supports the Hearing Officer's determination that petitioner's conduct evidenced a lack of professional judgment and posed a serious security risk. Accordingly, the court said that it did not find the penalty of dismissal "so disproportionate to the offenses as to be shocking to one's sense of fairness."
As to Lory’s contention that the Hearing Officer should have conducted a separate hearing with respect to the penalty to be recommended, the Appellate Division held that under the under the circumstances in this case, “the Hearing Officer did not err in making a penalty recommendation without having first conducted a separate hearing.”
* §75.3, in pertinent part, provides that “If such officer or employee is found guilty, a copy of the charges, his written answer thereto, a transcript of the hearing, and the determination shall be filed in the office of the department or agency in which he has been employed, and a copy thereof shall be filed with the civil service commission having jurisdiction over such position. A copy of the transcript of the hearing shall, upon request of the officer or employee affected, be furnished to him without charge.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07657.htm
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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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