Employee organization may not rely of a FOIL request to obtain the names of charter school employees

Employee organization may not rely of a FOIL request to obtain the names of charter school employees
Matter of New York State United Teachers v Brighter Choice Charter School, 2010 NY Slip Op 08383, Decided on November 18, 2010, Court of Appeals

The New York State United Teachers (NYSUT) filed a Freedom of Information Law (FOIL) request with six Charter Schools* seeking, among other things, payroll records showing the full names, titles, corresponding salaries, and home addresses of all persons employed as teachers, instructors and faculty.**

The Charter Schools partially denied NYSUT's request, contending that full compliance would constitute an unwarranted invasion of personal privacy within the meaning of FOIL and “the commercial and fund-raising exemption of Public Officers Law §89(2)(b)(iii).”

Ultimately the issue presented to the Court of Appeals concerned the disclosure of the teachers' full names, NYSUT having abandoned its request for home address information.

The Court of Appeals said that “Charter schools are clearly subject to FOIL (see Education Law §2854[1][e]), meaning that they must maintain ‘a record setting forth the name, public office address, title and salary of every officer or employee,’ [and] … [t]here is a presumption that such records must be made ‘available for public inspection and copying’ … [although] an entity subject to FOIL may deny access to records*** that ‘if disclosed would constitute an unwarranted invasion of personal privacy,’ which, as relevant here, includes the ‘sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes’ (Public Officers Law §89 [2][b][iii]).”

The court, reversing the Appellate Division, denied that part of NYSUT’s petition seeking disclosure of the names of the teachers employed by the Charter Schools, explaining that ordering disclosure of the names would do nothing to further the purpose of FOIL, "which is to assist the public in formulating intelligent informed choices with respect to both the direction and scope of governmental activities."

“If anything,” said the court, "it is precisely because no governmental purpose is served by public disclosure" of this information that §87 2)(b)(iii)'s privacy exemption falls squarely within FOIL's statutory scheme.”

As NYSUT, the court concluded, seeks the teachers' names for contacting prospective members, it ruled that “although NYSUT certainly possesses a right to seek dues-paying members, it may not rely on FOIL to achieve that end.”

* Brighter Choice, Henry Johnson, Kipp Tech Valley, Albany Community, Albany Preparatory and Achievement Academy. None of the Charters Schools' teachers are members of a labor union.

** Subdivision 3(a) of §2859 of the State Education Law, in pertinent part, provides that “An employee of a charter school shall be deemed to be a public employee solely for purposes of article fourteen of the civil service law, [The Taylor Law] except for section two hundred twelve of such law, and for no other purposes ….” Education Law §2859 Subdivision (c-1) provides for the reasonable access to employees of a charter school "If employees of the charter school are not represented, .….” [§2859, Subdivision (b), applies to “The school employees of a charter school that has been converted from an existing public school,” while Section 2859, Subdivision (b-1), applies to “The employees of a charter school that is not a conversion from an existing public school …”]

*** The custodian of the records or documents requested pursuant to FOIL may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08383.htm
NYPPL

Individuals identified as “unknown petitioners” may not be named as plaintiffs in an Article 78 proceeding

Individuals identified as “unknown petitioners” may not be named as plaintiffs in an Article 78 proceeding
Matter of Westchester County Correction Officers Benevolent Assn. Inc. v County of Westchester, 29 Misc.3d 1219(A)

One of the issues in this CPLR Article 78 action was the “Naming of Unknown Petitioners” as plaintiffs by the Westchester County Correction Officers Benevolent Association.

County Court Judge Jeffrey A. Cohen agreed with Westchester County that the petition improperly names John Does "1" through "100" as Petitioners.

The court said that although CPLR 1024 provides for the naming of unknown parties as defendants in an action, it does not provide for the naming of unidentified Petitioners in an Article 78 proceeding.

The judge also faulted the Association for failing to come forward with any statutory authority for naming unknown Petitioners, merely asserting that “there are similarly situated individuals who are presently unknown.”*

In addition, the court commented that the Association failed to show that it had undertaken any efforts to determine the identities of the unidentified Petitioners and have failed to refute County’s evidence that documents in the Association’s possession reveal the identities of other correction officers similarly situated to the individual Petitioners.

Accordingly Judge Cohen dismissed “that branch of the motion to dismiss the petition with respect to the Petitioners named John Does ‘1’ through ‘100’ as motioned by the County.

* Judge Cohen indicated that he had conducted its own review of Article 78 and failed to find any authority for naming “unidentified Petitioners.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52719.htm
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Employee terminated after being found guilty of falsifying his time records

Employee terminated after being found guilty of falsifying his time records
In the Application of Rodriguez, 258 AD2d 419

The Housing Authority terminated John Rodriguez after a disciplinary hearing officer found him guilty of claiming and obtaining overtime pay through the filing of false or misleading overtime records, including overtime pay for time spent commuting.

Rodriguez argued that because he was authorized to clock in and out at a place other than his work site, his claims for overtime were permitted under the Fair Labor Standards Act. The Appellate Division disagreed, stating that the agency’s imposing the “penalty of dismissal does not shock our sense of fairness given what was systematic dishonesty, misrepresentation and falsification of records” by Rodriguez.
NYPPL

Tests applied by courts considering vacating an arbitration award

Tests applied by courts considering vacating an arbitration award
Recore v Chateaugay CSD, 256 AD2d 801, motion for leave to appeal dismissed, 93 NY2d 957

In Recore v Chateaugay Central School District, the Chateaugay district asked to have an arbitrator’s award vacated. The arbitrator had ruled that the district had violated a clause of its collective bargaining agreement with CSEA Local 1000 when it failed to appoint Deborah Recore, a teacher’s aide, to the position of kindergarten aide.

The contract clause involved provided that “[f]or the purposes of filling vacancies or new job openings ... [the district] shall consider both ... seniority and ... skills and abilities. Seniority shall be the determining factor when in the sole judgment of [the district] the affected applicant’s skills and abilities are equal.”

A State Supreme Court justice vacated the arbitrator’s award. The arbitrator erred by inserting the word “relatively” before “equal” in interpreting the contract provision.

This, the court said, meant that “the arbitrator failed to apply the language of the collective bargaining agreement” in resolving the grievance.

CSEA appealed. The Appellate Division decided that the award had defects that “render it irrational,” but did not use the same reasoning as the Supreme Court.

In its decision, the Appellate Division noted that the grounds for vacating an arbitration award are very limited. It said that an arbitration award will be vacated only where “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”

It ruled that “given the considerable discretion afforded arbitrators in interpreting contract language [an arbitrator’s insertion of the word relatively] was an insufficient basis to invalidate the award.”

The Appellate Division emphasized that broad powers are vested in an arbitrator. Unless there is a provision in the arbitration clause to the contrary, an arbitrator is not bound by principles of substantive law or the rules of evidence and “may do justice by making an award reflective of the spirit rather than the letter of the parties’ agreement.”

Accordingly, said the court, an arbitrator’s interpretation of the parties’ agreement “may disregard the apparent, even the plain, meaning of the words of the contract before him and still be impervious to challenge in the courts.”

The Appellate Division found other defects in the arbitration award. The court noted that there were two different grievances arbitrations filed by Recore against the district.

The first concerned Recore’s not being selected for one kindergarten aide vacancy and the second concerned Recore’s not being selected for a second kindergarten aide vacancy.

According to the decision, apparently the arbitrator who conducted the second arbitration, Michael Lewandowski, “based his disposition [of the grievance] on the outcome of the first grievance” decided by another arbitrator, Walter Donnaruma.

Donnaruma had ruled that the district should have “utilized seniority as the primary consideration” with respect to Recore’s application for the first vacancy filled by the district and remitted the grievance to the district for its reconsideration. Upon reconsideration, the district reaffirmed its original decision.

Lewandowski considered the grievance that was filed after Recore was not selected for the second vacancy that the district filled.

The Appellate Division said “there is no discussion [of Recore’s] application for the second vacancy which culminated in the filing of the grievance that actually was before arbitrator Lewandowski, nor the evidence adduced at the hearing with respect to [Recore’s] and the chosen candidate’s qualifications for the position.”

In other words, the court concluded that Lewandowski based his decision of the determinations made by Donnaruma in the first arbitration.

Affirming the vacating of Lewandowski’s award because of this procedural defect rather than for the reasons stated by the lower court regarding Lewandowski’s interpretation of the contract’s language, the Appellate Division said that “inasmuch as [Lewandowski’s] disposition [of the grievance] leaves the controversy unresolved, a rehearing should be ordered” by the Supreme Court.
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Automatic termination from public office by operation of law

Automatic termination from public office by operation of law
Schirmer v Town of Harrison, USDC, SDNY, 1999 WL 61843
Foley v Bratton, Court of Appeals, 92 NY2d 781 [Decided with Griffin v Bratton]

Police officers are public officers and as such a subject to the provisions of Section 30.1 of the Public Officers Law. Section 30.1(d) provides that if a public officer ceases to be an inhabitant of the state, or if he or she is a local officer, of the political subdivision of which he or she is required to be a resident, his or her office “shall be vacant.”

Section 30.1(e) provides for the same result if the officer is convicted of a felony or a crime involving a violation of his or her oath of office. The Schirmer, Foley and Griffin decisions consider the impact of these provisions in cases where the individual may otherwise claim the protection of Section 75 of the Civil Service Law or a disciplinary grievance procedure set out in a collective bargaining agreement.

The Schirmer case

Peter Schirmer was a police officer with the Town of Harrison. He was injured in the line of duty and in March 1994 applied for, and was granted, disability benefits.* In December 1994, Schirmer and his family moved to Connecticut. Harrison terminated him pursuant to Section 30.1(d) on the grounds that he had moved his domicile to Connecticut and therefore was no longer eligible for employment. Schirmer sued, contending that his termination without a hearing violated the Due Process clause of the Constitution and entitled him to relief under 42 USC 1983 and 42 USC 1988.

Federal District Court Judge Allen Schwartz ruled that the provisions of Section 30.1(d) controlled and that under the circumstances Schirmer was not entitled to the Section 75 pre-termination hearing he claimed was due him. The court said “public officials such as [Schirmer] should not expect that the protections of Section 75(1) will apply to all types of dismissals, especially those based on a change in residency.” A public officer should understand that he or she “is vulnerable to summary dismissal” if it appears that he or she fails to meet the conditions of employment set out in Section 30 of the Public Officers Law.

According to the ruling, Section 30.1(d) explicitly informs public officers that their position will be automatically vacated upon an apparent change in domicile and that “post-termination relief is all that such employees may expect.”

This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].

The Foley and Bratton cases

Michael Foley, a New York City police officer, was convicted of a misdemeanor and a violation following an off-duty incident. Dennis Griffin, another New York City police officer was convicted of two misdemeanors. Both were dismissed without a hearing and their appeals were denied by the Supreme Court and the Appellate Division.

Three different statutes or ordinances were cited by the Court of Appeals in its analysis of the appeals filed by Foley and Griffin from the lower court rulings.

In addition to Section 30.1(e) of the Public Officer Law, the Court referred to:

1. Section 14-115(a) of the Administrative Code of the City of New York [The commissioner shall have power ... on conviction ... by any court ... of a member of the force of any criminal offense ... to punish ... by dismissal from the force], and Section 14-115(b) which provides for a pre-termination hearing.

2. Section 891 of the Unconsolidated Laws [A policeman serving in the competitive class ... in any city ... shall not be removed ... except for incompetency or misconduct shown after a hearing upon due notice upon stated charges].

Noting that the three provisions “are locked in a statutory clash,” the Court of Appeals said that “to the extent that the automatic removal provision of Public Officers Law contrast with the pre-dismissal administrative hearing requirements of Administrative Code 14-115 and Unconsolidated Laws 841, we have little difficulty in harmonizing the provisions by concluding that the Legislature flatly determined that a felony or “oath of office” conviction is serious enough, without more, to justify automatic removal.”

However, the court disagreed with the Police Commissioner’s claim that the Administrative Code permits summary termination for any misdemeanor conviction. “It is one thing for the Legislature to decree that certain convictions carry summary removal ... but it is quite different for a court to find, or to write in, a summary dismissal power under Administrative Code provisions that do not contain it.”

The Court of Appeals has held that a misdemeanor conviction for conduct outside the line of duty qualifies as an “oath of office” crime only if the violation is apparent from the Penal Law’s definition of the crime [Duffy v Ward, 81 NY2d 127].

Commenting that the Commissioner dismissed the officers “under Administrative Law 14-115 exclusively” and did not rely on Section 30.1(e) as a basis for the termination, the court reversed the lower courts’ rulings, indicating that if the Commissioner claims that a particular crime falls under the “oath of office” category, “he may proceed under Public Officers Law Section 30.1(e) and the issue will be determined in accordance with Duffy v Ward.” For other convictions a public hearing is required.... This hearing requirement does not compel a retrial of the criminal case. “The conviction may be presented as prima facie proof ... [and] the officer would then have an opportunity to present proof in mitigation....”

* This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
NYPPL

Denying unemployment insurance benefits based on a finding the individual left work without good cause

Denying unemployment insurance benefits based on a finding the individual left work without good cause
Williams v NYC General Services, App. Div., 256 AD2d 792
Rodriguez v Commissioner of Labor, App. Div., 256 AD2d 768

One basis for denying an individual unemployment insurance benefits is a finding that the applicant left his or her employment “without good cause.” The Williams and Rodriguez decisions involve determinations as to what constitutes leaving employment “without good cause.”

The Williams case

Carlton A. Williams, employed as a real property manager the New York City’s Office of General Services, decided to accept the city’s offer of an “early retirement package” instead of facing a scheduled disciplinary hearing for alleged misconduct.

Williams’ decision was based on a statement made by the “case conferencing judge at a prehearing conference” that if Williams decided to go forward with the hearing and the administrative law judge found him guilty, “he would discharged from his employment and would lose the employer’s contributions to his pension.” Williams elected to resign rather than risk dismissal. When the Unemployment Insurance Appeals Board rejected his application for unemployment insurance benefits, Williams appealed. The Appellate Division sustained the board’s determination.

The court said that “neither resigning in anticipation of discharge nor voluntarily separating from one’s employment in order to accept an early retirement incentive package when continuing work is available have been held to constitute good cause for leaving employment.”

The Rodriguez case

Usually leaving employment to relocate to another state in order to remain with one’s family will not disqualify an individual for unemployment insurance benefits. In Rodriguez’s case, the Appellate Division found there were mitigating circumstances sufficient to justify reversing the Unemployment Insurance Board’s rejection of her application for benefits.

In November 1995 Evelyn R. Rodriguez, a state disability claims examiner, remained behind when her husband and two daughters moved to Florida on the advice of their pediatrician, because her children had severe and chronic asthma. Rodriguez stayed because her employment was the source of the family’s health insurance, the family’s house had to be sold, she needed to continue to earn income and she wanted additional membership credit in the retirement system.

In August 1996, Rodriguez resigned and joined her family in Florida. The board, in rejecting her claim for benefits, held that she had “decided to live apart from her family indefinitely, if not permanently.” This, said the board, meant that she was disqualified from receiving benefits because she voluntarily left her job without good cause.

In reversing, the Appellate Division ruled that “the instant case is not a situation where a spouse is trying to decide if she will quit her job and join her transferred spouse.” Instead, said the court, “two parents have endured real hardship for the well-being of their children.”

Both spouses, said the court, had good cause to relocate to Florida, which was as compelling in August 1996 when Rodriguez resigned as the previous October when her husband moved to Florida with their children.

Essentially the court held that Rodriguez “from the outset” intended to relocate to Florida and that her uncertainty as to when she would do so was justified.
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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
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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/
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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.
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