Barring an individual from a PERB proceeding

Barring an individual from a PERB proceeding
Advisory Opinion of Counsel, 32 PERB 5001*

PERB’s counsel was asked if PERB or its administrative law judges “have the power” to issue an order disqualifying an attorney from representing a party based on a “potential substantive violation of the Code of Professional Responsibility”.

After noting that the Appellate Division is vested with the authority to discipline attorneys for alleged misconduct, Counsel pointed out that under Section 205(5)(j) of the Civil Service Law, PERB is not restricted from taking action to “exclude, suspend, or disbar any representative for misconduct in accordance with the Board’s rules.”

Section 207.4(j) of PERB’s rules [4 NYCRR 204.7(j)] provides:

Misconduct at any hearing before an administrative law judge shall be grounds for summary exclusion from the hearing. Such misconduct, if of an aggravating character and engaged in by an attorney or other representative of a party, shall be grounds for suspension or disbarment from further practice before the board after due notice and hearing.

Counsel concluded that although a violation of the Code might also constitute misconduct in a PERB proceeding, “for PERB’s purposes, the critical issue regarding such conduct would not be whether it violated the Code of Professional Responsibility, but whether it was misconduct that threatened a party’s rights, the Taylor Law, or PERB’s administration of that law.”

* Advisory Opinions of Counsel are not binding on PERB
NYPPL

Circuit Court of Appeals rules that hearsay testimony is admissible to support the issuance of a preliminary injunction

Circuit Court of Appeals rules that hearsay testimony is admissible to support the issuance of a preliminary injunctionMullins v. City of New York, USCA, 2nd Circuit, 08-1839-cv, Decided November 11, 2010

The Circuit Court of Appeals affirmed a District Court ruling enjoining the City of New York and the New York City Police Department from investigating and disciplining a New York City police officer based upon testimony or participation in a pending lawsuit, concluding that hearsay testimony is admissible to support the issuance of a preliminary injunction, and the district court did not abuse its discretion in granting preliminary injunctive relief based in part on such evidence.

About 4300 current and former New York City police sergeants sued the City, claiming “systematic violations of their overtime rights under the Fair Labor Standards Act of 1938 (“FLSA”).*
One plaintiff, Sergeant Paul Capotosto, Citywide Secretary of the Sergeants Benevolent Association, testified at the preliminary injunction hearing, reciting at least a dozen phone calls he received from worried plaintiffs in the lawsuit, who expressed concern to him that the NYPD was retaliating against them for their participation in the lawsuit.

Another plaintiff, Sergeant Edward Scott, alleged that his retirement was “administratively deferred” pending resolution of an unspecified “disciplinary matter” some months later. It subsequently “came to light that [Scott] was under investigation for testimony he had given during his deposition.” Sergeant Scott stated that, at the time, “I believed that if I withdrew from this FLSA lawsuit, the City would close its investigation into my deposition testimony.”

The Circuit court ruled that the district court did not abuse its discretion in finding either that Mullins, the named plaintiff in the action, is likely to succeed on the merits of their FLSA retaliation claim, or that Mullins established that irreparable harm is likely to flow from the putative FLSA violation absent injunctive relief and dismissed the Department’s arguments, concluding “that they are without merit.”

* N.B. This case may renew the question “Do federal courts have jurisdiction to consider alleged violations of the FLSA in actions brought against state and local governments?”

A decision by the U.S. Supreme Court holds that the federal courts have no authority to enforce the FLSA on non-federal governments under the 11th Amendment, which limits federal judicial power ["the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”].

The development of the jurisdiction of federal courts to consider alleged violations of the FLSA involving State and local governments is somewhat convoluted.

In 1996 the U.S. Supreme Court ruled that Congress cannot expand the authority of the judiciary beyond the constraints of the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. [Seminole Tribe v Florida, 116 S. Ct. 1114].

This decision profoundly affected FLSA issues because the Fair Labor Standards Act was enacted by Congress pursuant the Interstate Commerce Clause, which the Supreme Court said was indistinguishable from the Indian Commerce Clause.

The Supreme Court next indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided."

Following the Seminole ruling, a number of federal courts decided that federal courts lack power to enforce the provisions of the FLSA in a law suit against a State or a political subdivision of that State. Distinguishing between the State as the employer and political subdivisions of the State as the employer, however, the Supreme Court may have signaled a retreat from this expansive view.

In a footnote in Auer v Robbins, 519 U.S. 452, the Supreme Court commented that insofar as the Eleventh Amendment is implicated, a board of municipal police commissioners "does not share the immunity of the State of Missouri".

The Mullins decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/doc/08-1839-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/hilite/
NYPPL

Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position

Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position
New York State Socy. of Professional Engrs., Inc. v City of New York, 2010 NY Slip Op 08352, Decided on November 16, 2010, Appellate Division, First Department

Prior to September 3, 2008, the New York City Charter required that the Commissioner of Buildings had to be a licensed professional engineer or registered architect.

New York City Local Law 39, which took effect on September 3, 2008, amending §641 of New York’s City Charter to provided that either the Commissioner of Buildings or the First Deputy Commissioner to be a licensed professional engineer or a registered architect. §642 was also amended to authorize the Commissioner to delegate any duties to the First Deputy Commissioner.

New York State Society of Professional Engineers, Inc., challenged this amendment and asked the court to declare Local Law 39 unconstitutional on its face on the grounds that it was inconsistent with and preempted by Articles 145 and 147 of the State Education Law, which, respectively, set out the State’s licensing requirements for professional engineers and registered architects.

The Society also contended that by no longer requiring the Commissioner to be a licensed professional engineer or registered architect, the City Council has thereby permitted that official to engage in the practice of engineering without a license.

The Appellate Division rejected the Society’s claim, holding that the fact that an unlicensed Commissioner had the expressed power to delegate any duties that involve the practice of engineering or architecture to a properly licensed Deputy First Commissioner validates Local Law 39.

In addition, the court ruled that the State law does not preempt the City from establishing the qualifications for the offices of Commissioner and First Deputy Commissioner of Buildings, as the City is specifically permitted to set and enforce its own Building Code.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08352.htm

Employee dismissed for altering the value of his paycheck

Employee dismissed for altering the value of his paycheck
Local 375 v NYC Health & Hospital Corp., 257 AD2d 530

Jose Hernandez was charged with changing a “3” on his pay check into an “8,” “significantly enhancing the putative value of the check.” Hernandez explained that the change was caused by his inadvertent “doodling.”

A disciplinary arbitrator found him guilty of altering the value of the amount of the check payable to him, concluding that “Hernandez’s consistent conduct [with respect to attempting to cash the check or have it reissued in the “forged amount”] evinced an effort to benefit from an alteration concededly made by him.” Hernandez was terminated and his union, Local 375, appealed.

A State Supreme Court justice, finding some inconsistencies in the arbitrator’s findings and that criminal charges concerning the same allegations had been dismissed,* vacated the award on the grounds that the arbitrator had exceed her authority.

The Appellate Division reversed and reinstating the arbitrator’s determination. It noted that Section 7511 of the Civil Practice Law and Rules allows an arbitration award to be vacated only in situations such as “fraud, corruption or bias of the arbitrator” or a procedural violation by the arbitrator, or in the event the arbitrator exceeds his or her authority, none of which were present here.

The court said that it found no basis to set the arbitration award aside “notwithstanding the explainable absence of the check and some possible inconsistencies in the arbitrator’s findings.** It commented that the lower court’s conclusions “amount to no more than impermissible second-guessing these factual findings.”

* In Kelly v. Levin, 440 NYS2d 424, the court ruled that is 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. In contrast, an individual may be found guilty of charges in an administrative disciplinary hearing notwithstanding the fact that he or she may have been acquitted of criminal charges involving the same allegations. The reason for this is that the standard of proof required to prove guilt in a criminal proceeding is more rigorous than that in an administrative disciplinary proceeding. In a criminal case, the standard is “proof beyond a reasonable doubt” while in an administrative disciplinary action the standard of proof is the less demanding “substantial evidence” test. In an administrative proceeding, “substantial evidence” will support a finding that the individual is guilty of the disciplinary charge or charges. In some case, however, the standard used to determine guilt applied in an administrative disciplinary action is the even less demanding “preponderance of the evidence” test [see Martin v Ambach, 67 NY2d 975].

** Criminal charges had been filed against Hernandez. The altered check, however, “was destroyed in the normal course of events” by the District Attorney after forgery charges brought against him were dismissed and thus the item could not be introduced as evidence at the disciplinary administrative hearing.
NYPPL

Changing the scheduled number of hours that employees are to work during the workweek

Changing the scheduled number of hours that employees are to work during the workweek
Mitchell v LaBarge, 257 AD2d 834

Ann M. Mitchell and other employees and former employees sued the Town of Ulster when it unilaterally changed their workweek from 30 hours to 35 hours, contending that the town’s action violated the federal Fair Labor Standards Act.

At the time the individuals were hired the normal workweek was Monday through Friday, 9:00 a.m. through 4:00 p.m. Effective January 1996 they were required to work Monday through Friday, 9:00 a.m. through 5:00 p.m. without additional compensation.

This, Mitchell contended violated the FLSA because of the town’s “refusal to bargain [the change] in good faith.” A state Supreme Court justice granted the town’s motion to dismiss the action.

The Appellate Division affirmed the lower court’s dismissal of Mitchell’s complaint. It said that the sole federal claim set out in Mitchell’s petition alleged that the Town “violated the Fair Labor Standards Act [FLSA] by their refusal to bargain in good faith.” As the Act “does not impose a duty upon the employer to negotiate in good faith,” the court concluded that Mitchell failed to state a federal cause of action and dismissal of her claim was appropriate.

The Appellate Division commented that the Fair Labor Standards Act sets out “minimum wage and maximum hour requirements” [29 USC 206, 207] while the particular section relied upon by Mitchell, 29 USC 213, provides for exceptions to those provisions.
NYPPL

School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education

School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education
Guadagnino v Lancaster CSD, CEd 14080

The Lancaster Central School District filed disciplinary charges against Anthony P. Guadagnino pursuant to Section 75 of the Civil Service Law. The charges alleged that Guadagnino, a custodian, made false, baseless and damaging statements concerning alleged inappropriate conduct by a building principal, the president of the school board and others to various district officials and staff members.

Found guilty of all charges, Guadagnino was dismissed from his position. His appeal to the Erie County Civil Service Commission pursuant to Section 76 of the Civil Service Law was denied.

Guadagnino next filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law contending that the school district violated federal and state law protecting “whistle blowers” by terminating him in retaliation for his making and pursuing his allegations of “inappropriate conduct.”

The Commissioner dismissed the appeal for lack of subject matter jurisdiction. He said that with respect to Guadagnino’s claims concerning “whistle blowing” [Civil Service Law Section 75-b], such claims may be asserted as a defense in a Section 75 hearing. However, nothing in the Education Law authorizes an appeal to the Commissioner from disciplinary action taken under Section 75. The Commissioner noted that “it is well established ... that the suspension or termination of classified employees is not an appropriate subject of an appeal brought pursuant to Education Law Section 310.”

As to Guadagnino’s federal claims, the Commissioner pointed out that the federal law cited, 5 USC 1213, is generally applicable to federal employees and those in federally related employment.
NYPPL

Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement

Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement
Burns v NY State and Local Police and Fire Retirement Systems, 258 AD2d 692

Town of Clarkstown police officer Robert Burns was granted Section 207-c benefits after suffering a work-related injury in May 1993. In 1996, the department filed an application for disability retirement with the State and Local Police and Fire Retirement Systems [PFRS] seeking Burns “involuntary retirement from the police force.”*

When PFRS asked Burns to sign a consent form for the release of his medical records for its review, he refused. The Comptroller then issued subpoenas for the production of his medical records to a hospital and to two physicians. Burns attempted to quash the subpoenas on the grounds that the release of his medical records would “violate the physician-patient privilege” of Section 4505 of the Civil Practice Law and Rules. The Appellate Division affirmed a lower court’s ruling that Section 4504 did not protect Burns’ medical records since the Comptroller had the authority to determine applications for retirement benefits and had statutory authority to issue subpoenas.

The Appellate Division said that Burns “affirmatively placed his medical condition in issue and effectively waived the physician-patient privilege” by applying for Section 207-c benefits.

The Court said that “to exempt medical records essential to a determination of whether the disability resulted from an in-service injury would vitiate the purpose of [Section 363-c(c)(2) of the Retirement and Social Security Law], expressly permitting a municipal employer to seek the involuntary retirement of a disabled officer.”

* Both Section 207-a and Section 207-c of the General Municipal Law authorize the employer to file an application for disability retirement on behalf of an individual receiving benefits pursuant to these sections.
NYPPL

Employee may be disciplined for excessive absence from work

Employee may be disciplined for excessive absence from work
Gradel v Sullivan Co. Public Works, 257 AD2d 972

May an individual who has been authorized to take time off from work be disciplined for “excessive absence” based on an accumulation of “authorized” absences?

The Gradel case involved Section 75 disciplinary charges that were filed against Len Gradel, a Sullivan County sanitation worker. The charges alleged misconduct in the form of excessive absences, as well as poor job performance and insubordination, notwithstanding Gradel’s claim that he was authorized to take the time off.

“[T]he fact that [Gradel] was authorized to take the days off does not preclude a finding of guilt, especially where, as here, [Gradel] was repeatedly informed by memoranda that his pattern of absences was disruptive and burdensome to his employer and co-workers,” the Appellate Division ruled, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934.

Another issue involved the penalty imposed. Finding Gradel guilty of all of the charges filed against him, a hearing officer recommended that Gradel be suspended without pay for four days and placed on probation for one year.

The county, while agreeing with the hearing officer’s determination as to guilt, imposed the penalty of termination instead of the penalty recommended by the hearing officer. Gradel contended that the penalty imposed was excessive.

The Appellate Division rejected his arguments, holding that there was ample evidence in the record to support the hearing officer’s findings and confirm the county’s decision as to the penalty imposed. The court said that it was “unpersuaded by [Gradel’s] contention that the penalty of termination, which exceed that recommended by the Hearing Officer, was disproportionate to the offenses committed as to shock one’s sense of fairness.”
NYPPL