Rescinding a resignation

Rescinding a resignation
Otero v Safir, 258 AD2d 297

After being served with disciplinary charges involving allegations that subjected him to criminal charges, New York City police officer Louis Otero submitted his resignation from the force rather than testify at a disciplinary hearing. Later Otero asked a New York State Supreme Court justice to direct the Department to rescind his resignation. When the Supreme Court dismissed his petition, he appealed.

The Appellate Division denied Otero’s appeal. It said that Otero’s resignation was “strategically motivated and not the result of fraud, overreaching or other misconduct on [Department’s] part, was not improperly obtained and, accordingly, may not be judicially countermanded,” citing Cacchioli v Hoberman, 31 NY2d 287.

This case illustrates the general principle that an individual’s request to withdraw a resignation or to have it rescinded is subject to the discretionary approval of the appointing authority. Generally courts will intervene only in situations where the former employee proves that the resignation was the result of fraud or coercion.

Courts will also direct the rescinding of a resignation for certain types of “mistakes.”

For example, a teacher was told that she was a probationer and would not be recommended for tenure. She submitted her resignation solely to avoid having her personal record indicate that she was terminated for failure to satisfactorily complete her probationary period. It was later determined that the teacher had completed her probationary period and had acquired tenure prior to her submitting the resignation.

In Gould v Sewanhaka CSD, 81 NY2d 446, the Court of Appeals approved the rescinding of Gould’s resignation on the theory that the teacher had submitted her resignation under the mistaken belief that she was a probationer.
NYPPL

Reversal of an employee’s criminal conviction may require reconsideration of a disciplinary action based on the acts or omissions

Reversal of an employee’s criminal conviction may require reconsideration of a disciplinary action based on the acts or omissions
Beard v Newburgh, 259 AD2d 613, motion for leave to appeal denied, 93 NY2d 958

Town of Newburgh police officer Joseph Beard asked a state Supreme Court judge to vacate an arbitration award upholding his dismissal from the department based on various rule violations.

Beard complained that an arbitrator gave “collateral estoppel effect” to Beard’s conviction in a criminal matter related to the same events. Even though the criminal judgment was still under appeal at the time, the arbitrator rule that Beard’s criminal conviction automatically made him guilty of various disciplinary offenses stemming from the same underlying events.

The arbitrator ruled that because Beard was found guilty in the criminal action, the doctrine of collateral estoppel required that he be found guilty in the administrative disciplinary proceeding as well.*

On appeal, Beard persuaded an Appellate Division panel to overturn the arbitrator’s ruling. The Appellate Division said the arbitrator’s determination had to be vacated because Beard’s conviction, which was the sole factual basis for the arbitration award, was reversed on appeal. Accordingly, the court directed that a new hearing of the issues be held by the arbitrator.

The Town of Newburgh also argued that Beard’s termination should stand because Section 30.1(e) of the Public Officers Law mandates removal from public office as the automatic penalty in the event a public officer is found guilty of a felony or the violation of his or her oath of office.

However, observed the Appellate Division, was not terminated pursuant to Section 30.1(e) and therefore its applicability was not an issue raised before the arbitrator. Accordingly, “the applicability of the statute is not properly before this court.”

Had Beard been removed from his public office** by operation of law pursuant to Section 30.1(e) of the Public Officers Law, the under the law Beard could have requested reinstatement following the reversal of his conviction.

Section 30.1(e) provides that a non-elected official may ask the appointing authority for reinstatement upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy resulting from the application of Section 30.1(e). The appointing authority is required to hold a hearing to determine whether reinstatement is warranted.

Further, in addition to “the final judgment of the court which reversed or vacated such conviction,” an appointing authority may consider the entire employment history of the individual.

Section 30.1(e) further provides that "Upon its consideration of such information, and any other submissions, the appointing authority may, in its discretion, reappoint the individual to his or her former office, or to a similar office if the former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof."

* In Kelly v. Levin, 440 NY2d 424 the Appellate Division ruled that acquitting an employee in an administrative disciplinary action is a reversible error if the individual has been found guilty of a criminal act involving the same allegations.

** A police officer is a public officer for the purposes of Section 30 of the Public Officers Law.
NYPPL

Obtaining police personnel records pursuant to a Freedom of Information Law [FOIL] demand

Obtaining police personnel records pursuant to a Freedom of Information Law [FOIL] demand
Daily Gazette Co. and Capital Newspapers [Times Union] v City of Schenectady, 93 NY2d 145

The Court of Appeals has resolved a significant question in ruling that the City of Schenectady did not violate the state Freedom of Information Law (FOIL) when it declined to provide journalists with the names of certain police officers who were involved in an off-duty egg-throwing incident. The court ruled that prohibitions on disclosure of personnel records of public safety officers under Section 50-a of the state Civil Rights Law outweighed both the “plain wording” of FOIL and the legislative intent behind FOIL.

Section 50-a, in pertinent part, provides that all personnel records used to evaluate performance toward continued employment or promotion of police officers, correction officers or firefighters “shall be considered confidential and not subject to inspection or review without the express written consent of such [officers] except as may be mandated by lawful court order.” Such a court order is to be issued only after an in camera [private] inspection by the court and after giving the parties affected notice of the demand and an opportunity to be heard.

Both the Albany Times-Union and the Daily Gazette of Schenectady had asked, pursuant to FOIL (Public Officers Law [POL] Sections 84-90), for the records of the disciplinary action taken against 18 officers. The newspapers wanted the names of the officers who allegedly pelted civilian cars from a bus that was used as transportation for a police officer’s bachelor party. According to news reports, the bus stops included bars and a nude dance club.

Schenectady’s chief of police said that “under a promise of confidentiality,” the 18 officers had admitted their participation in the incident in various degrees, and that disciplinary sanctions imposed ranged from written reprimands to loss of vacation days and overtime pay. The chief refused to provide the newspapers with the names of the officers, citing the FOIL exception for certain records; i.e., records “specifically exempted from disclosure by state or federal statute” (POL Section 87[2][a]).

Newspapers sued under FOIL, but a state Supreme Court justice declined to order Schenectady to provide the information.

The Appellate Division reversed that decision, concluding that the records of the disciplinary actions taken against the 18 officers were not exempt from FOIL disclosure under Civil Rights Law Section 50-a. The city appealed and won a reversal of that ruling by the Court of Appeals, New York’s highest court.

The court observed that Civil Rights Law Section 50-a conflicts with the “plain wording” of Freedom of Information Law, and that the limit that Section 50-a places on disclosure “is contrary to its legislative history and is inconsistent with our FOIL precedents.”

Nevertheless, the Court of Appeals pointed out that the statute “was designed to prevent abusive exploitation of personally damaging information” contained in personnel records of law enforcement personnel. Otherwise criminal defense attorneys could always delve into the personnel records of officers to find information to impeach the credibility of police witnesses. FOIL applications by criminal defense attorneys can be used as a means for “harassment and reprisals and for the purposes of cross-examination,” the court said, citing Matter of Prisoners’ Legal Services, 73 NY2d, at page 31.

In making its ruling, the court set out the following test to determine if the refusal to disclose records under the FOIL exception is justified:

In evaluating denying a FOIL request for access to a law enforcement officer’s personnel records that are relevant to promotion or continued employment, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law Section 50-a -- to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer.

In the Schenectady case, the individuals seeking information were journalists, not lawyers. However, “confidentiality under Civil Rights Law Section 50-a will not automatically be defeated solely because the person seeking access is a representative of a news-gathering organization, not contemplating litigation....” the court said.

The court appeared concerned that there was “potential abusive exploitation of the damaging information in personnel records exists irrespective of how, at whose behest or for what purpose the information is released into the public domain.”

In this instance, said the court, if the newspapers were to obtain and publish the identities, misconduct and disciplinary sanctions of the 18 Schenectady police officers involved in the incident, “the information will be fully available for all of the forms and practices of abusive exploitation that Civil Rights Law Section 50-a was designed to suppress.”

Noting that the employer has the burden of demonstrating that its rejection of a FOIL demand falls within the permissible exceptions set out in FOIL, the Court of Appeals said that it is not sufficient merely to show that the recorded data may be “used to evaluate performance toward continued employment or promotion” of the officers” in rejecting a FOIL demand.
NYPPL

Hearing officer finds that employee’s failure to comply with an unlawful order is not misconduct for the purposes of disciplinary action

Hearing officer finds that employee’s failure to comply with an unlawful order is not misconduct for the purposes of disciplinary action
Health and Hospital Corporation v A.S., OATH Index #2742/10

OATH Administrative Law Judge Tynia Richard recommended dismissal AWOL charges brought against A.S.,* an employee at the Health and Hospital Corporation’s Bellevue Hospital Center, after the employee declined to report for a “medical clearance” as directed.

Judge Richard found that Bellevue had “improperly conditioned [the employee’s] return to duty upon presentation of medical clearance.”

Bellevue, said Judge Richard, could not, without following the procedures of its Regulation No.1, which the ALJ characterized as “an analog to Section 72 of the Civil Service Law,” compel the employee to undergo an involuntary psychiatric examination based upon a supervisor's unsubstantiated claim that the employee complained that of being ill and then directed the employee to report the employee’s psychiatric condition to the hospital or be barred from returning to work where the employee had displayed no disruptive behavior or performance related problem.

Having failed to comply with the notice requirements of Regulation No.1, the ALJ concluded that the directive to report to the psychiatric examination was not a lawful order. According, Judge Richard ruled that A.S.'s failure to appear for the examination was not misconduct.

* The decision notes that “Respondent’s full name is being withheld for purposes of publication in order to protect [the employee’s] privacy because this decision discusses [the employee’s] medical records which include matters of a personal nature. This accommodation is being made sua sponte [on the ALJ’s own motion] as the parties have not requested it.”

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2742.pdf
NYPPL

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].
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