Discontinuing or postponing administrative disciplinary action while criminal action involving the same event is pending and related issues

Discontinuing or postponing administrative disciplinary action while criminal action involving the same event is pending and related issues
Levine v New York City Transit Authority, 70 AD2d 900, affirmed 49 NY2d 747

New York courts have considered discontinuing disciplinary action while criminal action is pending, holding that an appointing authority has no obligation to postpone administrative disciplinary action even if the county district attorney requests that the administrative disciplinary action be postponed. This was the point made by the court in Levine v New York City Transit Authority.

It may, however, sometimes be advantageous for the appointing authority to wait until the criminal matter has been adjudicated. New York courts have ruled that a criminal conviction compels an automatic finding of guilt in an administrative disciplinary hearing involving the same offense.

If an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are filed related to that same incident of theft, there is no lawful way for a disciplinary hearing officer to find the employee not guilty of stealing. Probably the leading case illustrating this point is Kelly v. Levin, 440 NY2d 424. In Kelly the court ruled that is a reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.

The reason this is true is that the standard of proof required in a criminal proceeding is greater than that in an administrative disciplinary proceeding. In a criminal case, the standard is proof beyond a reasonable doubt. In contrast, the standard to be met to find an employee guilty of the charges filed against him or her in administrative disciplinary action is “substantial evidence” or, in some situations, “a preponderance of the evidence.”

Is an employee subjected to "double jeopardy" if the employer proceeds with an administrative disciplinary action at the same time as criminal charges are pending or following the criminal action should the employee be acquitted? Courts have ruled this is not double jeopardy.

In Bermudez v NYC Transit Authority, Appellate Division, upholding a lower court's determination, said that as to the "double jeopardy" issue,[1] "the dismissal of the criminal charges brought against [Bermudez], which were predicated upon the same acts which were the subject of the disciplinary proceeding commenced against him, has no bearing upon the determination terminating his employment."

In Matter of the Haverstraw-Stony Point CSD, 24 Ed. Dept. Rep. 466, the Commissioner of Education ruled that a Section 3020-a hearing panel is not required to adjourn an administrative disciplinary hearing when parallel criminal proceedings are underway.

A claim of double jeopardy is, however, more frequently encountered in efforts to suppress a disciplinary action in situations were the charges reflect the same acts or omissions that were the subject of counseling memoranda or performance evaluations. The courts have rejected this theory.

In Patterson v Smith, 53 NY2d 98 the Court of Appeals said that including charges concerning performance that were addressed in a counseling memorandum was not “double jeopardy.”

The court explained that a “proper counseling memoranda” contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself. Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event or events.

The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate [Fusco v Jefferson County School District, CEd, 14,396 and Irving v Troy City School District, CEd 14,373].

The point made in Fusco and Irving is that comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature?

In Holt v Board of Education, 52 NY2d 625, the Court of Appeals decided that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding. In other words, the act of placing correspondence critical of the employee’s conduct or performance in his or her personnel file did not constitute discipline.

The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism. In contrast, alleged “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure. In other words, an appointing authority may not frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure by claiming its action was merely “constructive criticism.”

In the Fusco and Irving cases, the Commissioner of Education found that “critical comment” exceeded the parameters circumscribing “lawful instruction” concerning unacceptable performance.

In Fusco’s case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” noting that the memorandum “contains no constructive criticism or a single suggestion for improvement.” Rather, said the Commissioner, the memorandum focused on “castigating [Fusco] for prior alleged misconduct.”

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.

* Bermudez attempt to vacate the award contending that he had been acquitted of criminal charges that had led to the administrative disciplinary action.

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NYPPL

Title VII does not bar the selection of an individual because of the individual’s personal relationship with the appointing authority

Title VII does not bar the selection of an individual because of the individual’s personal relationship with the appointing authority
Fella v County of Rockland, 297 A.D.2d 813

According to the court's decision, the Rockland County Director of Employee Rights and Equity Compliance concluded that Rockland County Commissioner of Hospitals Peter T. Fella had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant assistant director of nursing position.*

The Director had determined that Fella violated the County's Equal Employment Opportunity Policy [EEOP] because some employees said that they felt uncomfortable at work because Fella had this "romantic relationship" with a co-employee. This, said the Director, constituted a hostile work environment and, as such, violated the EEOP.

As a result, C. Scott Vanderhoef, County Executive of the County of Rockland, suspended Fella from his position without pay for a period of 30 days.

Supreme Court vacated the County Executive's action and the Appellate Division sustained the lower court's ruling.

In its decision the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'"

Citing DeCinto v Westchester County Medical Center, 807 F2d 304, the court explained that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship." Accordingly, said the court, the County Executive's finding that Fella created a hostile work environment in violation of the EEOP was arbitrary, capricious, and without a rational basis, and was therefore properly annulled but the Supreme Court.
NYPPL

Using tape-recorded testimony in an administrative proceeding

Using tape-recorded testimony in an administrative proceeding
Miller v Howard Safir, App. Div., 259 AD2d 337

John Miller, Jr. challenged the New York City police commissioner’s revocation of his designation as a Special Patrolman. The commissioner had determined that Miller was “unfit for the position of Special Patrolman” following an incident during which Miller assaulted an individual.

The Appellate Division noted that the police commissioner’s determination was supported by substantial evidence, including Miller’s own admission that he knocked down the individual’s door and assaulted her.

However, Miller complained that the determination was based on a tape recording by the individual rather than her giving her personally testifying in the presence of the hearing officer.

The Appellate Division ruled that the tape-recorded evidence, which was sworn testimony, constituted substantial evidence, citing Abdur-Raheem v Mann, 85 NY2d 113 and Butler v Coughlin, 193 AD2d 973 in support of its ruling.
NYPPL

Term appointments of employees in the Classified Service

Term appointments of employees in the Classified Service
Wheeler v Washington Co., 259 AD2d 902

Term appointments are rare in the classified service. The Wheeler case involves such a type of appointment and considers the rights of an incumbent upon the expiration of his or her term of office.

Section 100 of the Highway Law provides that a county Superintendent of Highways is appointed for a four-year term and “may be removed from office for malfeasance or misfeasance before expiration of the term.”*

Kenneth F. Wheeler was initially appointed to the position of Superintendent of Highways for a four-year term in 1987 and was reappointed to an additional four-year term, beginning on January 1, 1993. In 1991, his job title was changed to Superintendent of Public Works. At the conclusion of his term on December 31, 1996, Wheeler was not reappointed but remained as Superintendent until a successor was appointed by the Board of Supervisors on February 3, 1997.

Claiming that his termination was unlawful, Wheeler sued.

According to the decision, Wheeler’s most recent term of office as Superintendent of Public Works commenced on January 1, 1993 and expired on December 31, 1996. The issue, as the Appellate Division saw it, was “whether the rights afforded a permanent, competitive employee under Civil Service Law Section 75 extended to [Wheeler] after the expiration of his term of office.”

Wheeler contended that his position was wrongfully reclassified in 1996 from competitive to “unclassified” or noncompetitive status and that his position did not meet the requirements for “unclassified” status. Relying on his alleged permanent, competitive status in the classified service, Wheeler argued that Section 75 barred his termination except for misconduct or incompetence.

The court said that contrary to Wheeler’s contention, he was not terminated or removed from office but rather, his four-year term pursuant to Highway Law Section 100 merely expired. Since he was not reappointed and his successor had not yet been chosen, the position became vacant at the expiration of his term on December 31, 1996.

However, until his successor took office in February 1996, Wheeler was a holdover and an at-will employee as provided by Section 5 of the Public Officers Law. Therefore, the court concluded, Section 75 was inapplicable and thus Wheeler was not entitled to a review of the County’s decision not to reappoint him after completion of his then current term of office.

As to the question of whether Wheeler’s position was wrongfully reclassified from the competitive class to another jurisdictional classification, the Appellate Division said that the change in jurisdictional classification was irrelevant since Wheeler was not removed from his position prior to the expiration of his term of office.

The decision implies that a person holding a term appointment authorized by law, unless reappointed, is to be deemed terminated upon the expiration of his or her term “by operation of law” notwithstanding the fact that he or she may otherwise be protected against removal except for incompetence or misconduct by the provisions of Section 75 of the Civil Service Law.

* Among others in the classified service holding a “term appointment” is the personnel officer of a county, suburban town, or a city where such a position has been established. Such a personnel officer is appointed for a term of six years [Section 15.1.(b), Civil Service Law].
NYPPL

Termination of employment pursuant to Civil Service Law Section 73

Termination of employment pursuant to Civil Service Law Section 73
Fallon v Triboro. Bridge & Tunnel Auth., 259 AD2d 377

An individual who is terminated pursuant to Section 71 or Section 73 of the Civil Service Law because of his or her absence caused by a disability may decide to sue the employer, claiming the termination was unlawful.* Such was the situation underlying the Fallon case.

The Triboro Bridge and Tunnel Authority terminated Gregory Fallon pursuant to Section 73 of the Civil Service Law after he had been continuously absent in excess of one year. Fallon sued, claiming various violations of his civil rights under federal and state law. The court found that Fallon had been absent on disability leave for 12 years and had never sought to return to work, with or without accommodation, even after he was denied ordinary disability retirement benefits.

The Authority had told Fallon that it would terminate him if he failed to qualify for ordinary disability retirement. This, said the Appellate Division, constituted “adequate pretermination notice,” commenting that “[i]n the context of Section 73 discharges, [due process] amounts to no more than an opportunity for the employee to present opposing views as to whether [he] has been absent for one year or more and whether [he] was able to return to [his] position.”

As to any post-termination rights, the Authority “in language tracking the provisions of Civil Service Law Section 73,” had written Fallon advising him of his termination and “that he could apply for a medical examination within a year of the termination of his disability, and if found fit, could apply for reinstatement.” This, said the court, was sufficient to meet due process requirements.

The Appellate Division also ruled that Fallon failed to make a prima facie case of disability-based discrimination under the Vocational Rehabilitation Act (29 USC Section 794) because the Authority “is not a recipient of federal funds.”

Fallon also contended that the Authority had violated the Americans with Disabilities Act. The court determined that his ADA rights had not been violated “since he makes no allegation that he requested an accommodation for his alleged disability and was refused.”

In view of this, the court ruled, “there is no ground to conclude that [the Authority] violated the New York State Human Rights Law (Executive Law Section 296), prohibiting disability-based discrimination” and dismissed Fallon’s appeal.

* Section 71 provides for leave in connection with a work-connected injury or disease. Section 73 provides for the termination of an individual who is on leave pursuant to Section 72, which mandates leaves of absence in the event an employee is unable to work because of an injury or disease that did not result from a work-related incident.
NYPPL

Maryland Police may not claim a "privacy shield" when making a “traffic stop”

Maryland Police may not claim a "privacy shield" when making a "traffic stop”
Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2010 AELE

”A motorist stopped by two Maryland state troopers recorded his interaction with the officers without informing them he was doing so. The recording included both video and audio. He later posted the recordings on the YouTube website. He was subsequently arrested and then indicted on charges that included, among other things, making the recordings of an oral private conversation.”

The trial judge ruled that the recorded audio exchange between the arrestee and the officers was not a private conversation as intended by the provisions of a state wiretap statute.*

In the words of the court: "There is no expectation of privacy concerning a traffic stop on a public street. The law is clearly established that a traffic stop is not a private encounter."

"Charges concerning making and disseminating the recording were dismissed, while charges concerning traffic violations arising from the same incident will go forward."

"Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation." State of Maryland v. Graber, #12-K-10-647 (Circuit Court, Harford County, Md. 2010).”

* The relevant Maryland Statutes, Section 10-402(a)(1) and 10-402(a)(2) of the Courts and Judicial Proceedings Article, provide as follows:

1. Section 10-402(a)(1): Except as otherwise specifically provided in this subtitle it is unlawful for any person to wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, oral, or electronic communication."

2. Section 10-402(a)(2) defines oral communication as: "... any conversation or words spoken to or by any person in private conversation."
NYPPL

Unemployment Insurance claims

Unemployment Insurance claims
Prusch v Shenendehowa CSD, 259 AD2d 877, Motion for leave to appeal denied, 93 NY2d 816

As a general rule, criticism of an employee’s job performance by a supervisor or receipt of a negative performance evaluation does not necessarily constitute good cause for leaving employment for the purpose of establishing eligibility for unemployment insurance benefits. The same is true with respect to an individual resigning in anticipation of his or her dismissal.

These are the lessons of the Prusch case.

John E. Prusch was employed by the Shenendehowa Central School District as a teacher of foreign languages. He resigned from his position effective April 25, 1997 and applied for unemployment insurance benefits. Prusch indicated that he resigned because he was “stressed out” and because he had received an unsatisfactory rating on a performance review, which recommended that he not be rehired for the upcoming school year.

The Unemployment Insurance Appeal Board rejected Prusch’s claim, ruling that he was disqualified from receiving benefits because he had voluntarily left his employment without good cause. Prusch appealed only to have the Appellate Division affirm the board’s determination.

Although Prusch alleged that he resigned based upon advice from his psychologist that he quit as soon as possible because of stress caused by his negative evaluation, the court commented that the record indicated that he “nevertheless chose to remain, continuing his employment for another month, and his resignation letter contained no reference to a physician’s recommendation.”
NYPPL

Initiating disciplinary action based on anonymous allegations of wrongdoing

Initiating disciplinary action based on anonymous allegations of wrongdoing
Wilson v City of White Plains, 259 AD2d 756, reversed, 95 NY2d 783

Anonymous communications that allege improper conduct by an employee place the appointing authority on the horns of a dilemma. If the employer ignores the communication, it may later develop that there was some substance to the allegation, and the employer will be exposed to criticism (or liability) for failing to act “on the information.” On the other hand, if the appointing authority confronts the employee, relying solely on the information it received anonymously, it may be criticized for taking adverse action against the employee based on such information alone. Such was the situation that faced the appointing authority in the Wilson case.

White Plains firefighter Scott Wilson had been directed to submit to blood and urine tests based on what the Appellate Division characterized as “unsubstantiated information contained in an anonymous letter” that had been received by the department. Ultimately disciplinary charges were filed against Wilson. A hearing officer found Wilson guilty of six charges of misconduct. The Commissioner of Public Safety adopted the findings and recommendations of the hearing officer and dismissed Wilson from his position. Wilson appealed his termination and persuaded the court that his removal was arbitrary.

Noting that “there was no objective evidence which would have suggested that the [Wilson] was abusing alcohol or drugs,” the Appellate Division said that under these circumstances, ordering Wilson to undergo such testing “was arbitrary and without even a minimal basis of justification.” Finding that Wilson’s dismissal was improper under the circumstances, the court directed the department to reinstate him to his former position with back pay and benefits.

The key issue: Did the Department have “reasonable suspicion” to require Wilson to submit to blood and urine tests for alcohol or drugs? Finding that the order was based on “reasonable suspicion,” the Court of Appeals reversed the Appellate Division’s ruling.

The court said that “Reversal is warranted because the [lower] Court erred in concluding that there was no objective evidence as to Wilson's substance abuse and overlooked the following findings of the Hearing Officer: In 1986, four years after joining the City of White Plains Fire Department, Wilson voluntarily sought treatment at a substance abuse facility.”

When he returned to duty, Wilson was told that he would be monitored for signs of recurring substance abuse and tested if he showed such signs.

Further, Wilson acknowledged that he understood that any repetition of his substance abuse would result in disciplinary charges.

In August 1996, the Fire Commissioner received an anonymous letter, indicating that Wilson had been reporting to work under the influence of alcohol. After reviewing the letter with other fire department officials, the Fire Commissioner decided to investigate the situation further. As a part of the investigation, fire department officials reviewed Wilson's personnel file, which revealed a history of chronic absenteeism.

In the words of the Court of Appeals: “A public agency may lawfully order an employee to submit to a drug test on reasonable suspicion of drug use.” The that this the Department had met this standard and, in addition, the Department’s “reasonable suspicion” was supported by far more than just the anonymous letter.

In addition to the letter, said the court, the City presented evidence of Wilson's physical manifestations of substance abuse the day he was tested, a long record of excessive absences, prior substance abuse problems, a reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.
NYPPL

Extending an eligible list

Extending an eligible list
Doyle v NYC Dept. of Citywide Administrative Services, 261 A.D.2d 110

Thomas Doyle brought an Article 78 action to compel the New York City Department of Citywide Administrative Services to extend a civil service eligible list beyond its “maximum life.” The Appellate Division dismissed Doyle’s petition.

Noting that Doyle asked relief in the nature of mandamus (i.e., an order that a responsible official or agency perform a required duty), the Appellate Division said that mandamus is available only to compel a nondiscretionary governmental act, citing Matter of Altamore v Barrios-Paoli, 90 NY2d 378.

Here, said the court, Doyle is demanding that a civil service eligible list be extended. Because there is no question that the extension of a civil service eligible list is a discretionary act on the part of the administrator charged with maintaining such eligible lists, the court said it could not order the city to extend the list.

The Appellate Division said that there was no evidence that Department’s determination to let the list expire at the end of its maximum statutory term was arbitrary and capricious or made in bad faith.

As set out in Section 56 of the Civil Service Law, the duration of an eligible list shall be for at least one year but shall not extend beyond four years.

However, Section 56.3 provides that in the event an individual whose “disqualification has been reversed” or whose rank on the eligible list has been “adjusted by administrative or judicial action”, the candidate’s name is to be placed on the relevant eligible list[s] “for a period of time equal to the period of disqualification or for the period the application [sic] has been improperly ranked, up to a maximum period of one year or until the expiration of the eligibility list, whichever is longer.

If the list expires before the individual has had his or her name “restoration to the eligible list,” for at least one year, the individual’s name is to be placed on a “special list” for the period remaining; if the list expires before being “restored,” the individual’s name is to be placed on a special eligible list “for a length of time equal to the restored period of time not to exceed a maximum of one year.”
NYPPL

Transfer of employees

Transfer of employees
Allah v NYC Health and Hosp. Corp., 259 AD2d 409, Appeal dismissed, 93 NY2d 999

Section 45 of the Civil Service Law provides for the continuation of employment for eligible employees of a private entity when a public agency assumes the functions formerly performed by the private organization.

The Allah case concerns a variation of this: the “transfer” employees of a private employer to a public employer when (1) the private employer continues to provide services and (2) the public employer performs some of these functions as well. This was the situation when New York City’s Health and Hospital Corporation [HHC] decided to provide some of the services then being provided by the New York Medical College and Coney Island Medical Group as private entities. In other words, there was no Section 45 take-over of these two organizations.

HHC decided that it needed to transfer some of the College’s and the Group’s personnel to perform these “new” services.

To facilitate this “transfer,” the State Legislature enacted Unconsolidated Laws Section 7390(2)(b) exempting health care personnel formerly employed by the College and the Group transferred to HHC from having to take and pass a competitive examination as a condition of becoming civil service employees with permanent competitive status within the HHC system.

The Appellate Division ruled that this provision did not violate Article V, Section 6 of the State Constitution, which requires civil service appointments to be made according to merit and fitness and, as far as practicable, by competitive examination. The court said that the Legislature had expressly determined that “requiring a competitive examination as a condition of transferring the aforementioned personnel to HHC civil service employment with permanent competitive status would seriously interrupt the continuous provision of health and medical services.”

Another issue, however, concerned the “seniority” of individuals “transferred” to HHC.

Section 45 provides that employees in a “takeover” retain the seniority “as among themselves.” However, insofar as their seniority in the public service for the purposes of layoff and other statutory requirements is concerned, such individuals cannot claim seniority pre-dating the effective date of their permanent appointment in the public service with respect to the seniority of employees in the public service on or before the date of a takeover.

Allah and other individuals claimed that employees who had been transferred to HHC employment from New York Medical College and Coney Island Medical Group pursuant to the Unconsolidated Law had Section 45 seniority rights.

The Appellate Division disagreed, ruling that Section 45 is triggered only upon public acquisition of a private institution. Here, the Court decided, there was no takeover of a private entity but merely a transfer of employees to enable HHC to perform functions that New York Medical College and the Coney Island Medical Group continue to provide subsequent to their transfer. Accordingly, there was no acquisition within the meaning of Section 45 and therefore the statute is not applicable.
NYPPL