Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties
Walsh v County of Saratoga, 256 AD2d 953 [decided with Mason v County of Saratoga]
In this “tax sale” lawsuit, the Saratoga County Treasurer, George Gasser, said that his official position in the matter and that of the Board of Supervisors were incongruous. When the County Attorney said that he would represent the County in the litigation, Gasser sought independent counsel.
Gasser subsequently asked the County to reimburse his attorney’s fees as provided under Section 18 of the Public Officers Law.
The county declined to do so, claiming that Gasser “never made the required written request for a defense.”
A State Supreme Court justice ruled that Gasser “should be insulated from litigation expenses arising out of the performance of his duties” and the county appealed.
The Appellate Division rejected the county’s contention that Gasser’s failure to “tender the required written notice” precluded its reimbursing him for his legal costs. It said it “consistently held that a statute’s notice requirements need not be deemed a condition precedent to an employee’s right to legal representation.”
According to the ruling, the purpose of such a notice is “to prevent default and to afford the municipality an opportunity to promptly investigate the incident to determine, among other things, whether the employee was acting within the scope of his or her employment.”
The court found that “it was undisputed” that Gasser was acting within the scope of his employment” and that the county was aware of the proceedings at their commencement and had ample opportunity to investigate.
The Appellate Division, affirming the lower court’s ruling, said that there was “no impediment to [Gasser’s] representation pursuant to Public Officers Law Section 18.” Gasser was statutorily entitled to representation by independent counsel once the County Attorney informed him that he would not be appearing on his behalf in the matter.
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
November 23, 2010
The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve
The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve
Roma v Ruffo, Court of Appeals, 92 NY2d 489
The collective bargaining agreement between the Susquehanna Valley Central School District and CSEA Local 1000 provided that school matrons would normally work an eight-hour day/40-hour work week and that the district would negotiate any changes in the matron’s working conditions with Local 1000.
The agreement also included a “management rights” clause reserving to the district the right to “transfer and abolish positions” and a “non-binding arbitration” provision. The “final grievance decision” was vested in the school board.
Without negotiating the change with Local 1000, the district told the matrons that their work schedule would be changed to a six-hour day/30-hour workweek “due to budgetary considerations.” The union filed a grievance under the collective bargaining agreement contending that this unilateral change in the work schedule constituted a violation of the contract.
When the school board, the final step in the grievance procedure, denied the grievance after finding that the agreement had not been violated, Local 1000 sued. A state Supreme Court justice decided that the school board’s determination was arbitrary in view of the specific contract provision at issue. It directed the district to reinstate the matron’s former work schedule.
The district appealed, arguing that the lower court’s order was unenforceable because “PERB had exclusive jurisdiction” over the controversy. In other words, the district argued that the Supreme Court did not have jurisdiction to decide the matter. The Appellate Division agreed, vacating the lower court’s decision.
But on further appeal, the Court of Appeals, New York State’s highest court, found the issue involved an allegation that the terms of the contract were violated, not that the district may have committed and improper practice by refusing to negotiate. The court held that if a term and condition of employment specifically covered by the collective bargaining agreement is alleged to have been violated, the issue may be resolved through the agreement’s grievance procedure.
The decision notes that because the matrons’ work hours were covered by a provision in the contract, “neither party had a statutory duty to negotiate changes in those hours.” Thus, said the court, “it necessarily follows that the school district’s unilateral change cannot constitute the improper practice of failure to bargain in good faith.” The court characterized the district’s action as a breach of the contract, remediable through the contractual grievance procedure agreed upon by the parties.
If, however, the contract’s work hours provision was subject to a so-called “contract re-opener” clause, in which the parties identify in the contract a specific issue to be reconsidered at a later date, any change would be subject to collective bargaining. If a party then failed to bargain in good faith, PERB would have exclusive jurisdiction to resolve that issue.
In Susquehanna Valley situation, however, the court ruled that PERB does not have “exclusive jurisdiction” for two reasons:
1. CSEA did not allege anything that was within PERB’s jurisdiction under Section 209-a[1][d] of the Civil Service Law. This subdivision provides that an employer’s alleged failure to bargain in good faith constitutes an “improper employer practice” as Local 1000 simply complained that the district had violated specific terms and conditions of employment set out in the agreement.
2. Section 205(5)(d) places limits PERB’s authority and PERB does not have jurisdiction with respect to (a) enforcing the terms of an agreement between the parties, nor (b) considering alleged violations of a Taylor Law agreement.
Reinstating the ruling by the Supreme Court, the Court of Appeals held that the district had violated the “unambiguous” terms of the Taylor Law agreement between the parties. It directed the district to restore their full-time working hours, salary and benefits “unless/until the conditions of said employment are altered in accordance with the provisions of the collective bargaining agreement.”
As to the “management right’s clause” aspect of the controversy, the Court of Appeals observed that “the scope of the management prerogative clauses was ... ‘a contractual issue beyond PERB’s jurisdiction’” as well. Presumably, this provision could be advanced by the district in support of claim that its unilateral change in the matron’s work schedule did not violate the contract.
NYPPL
Roma v Ruffo, Court of Appeals, 92 NY2d 489
The collective bargaining agreement between the Susquehanna Valley Central School District and CSEA Local 1000 provided that school matrons would normally work an eight-hour day/40-hour work week and that the district would negotiate any changes in the matron’s working conditions with Local 1000.
The agreement also included a “management rights” clause reserving to the district the right to “transfer and abolish positions” and a “non-binding arbitration” provision. The “final grievance decision” was vested in the school board.
Without negotiating the change with Local 1000, the district told the matrons that their work schedule would be changed to a six-hour day/30-hour workweek “due to budgetary considerations.” The union filed a grievance under the collective bargaining agreement contending that this unilateral change in the work schedule constituted a violation of the contract.
When the school board, the final step in the grievance procedure, denied the grievance after finding that the agreement had not been violated, Local 1000 sued. A state Supreme Court justice decided that the school board’s determination was arbitrary in view of the specific contract provision at issue. It directed the district to reinstate the matron’s former work schedule.
The district appealed, arguing that the lower court’s order was unenforceable because “PERB had exclusive jurisdiction” over the controversy. In other words, the district argued that the Supreme Court did not have jurisdiction to decide the matter. The Appellate Division agreed, vacating the lower court’s decision.
But on further appeal, the Court of Appeals, New York State’s highest court, found the issue involved an allegation that the terms of the contract were violated, not that the district may have committed and improper practice by refusing to negotiate. The court held that if a term and condition of employment specifically covered by the collective bargaining agreement is alleged to have been violated, the issue may be resolved through the agreement’s grievance procedure.
The decision notes that because the matrons’ work hours were covered by a provision in the contract, “neither party had a statutory duty to negotiate changes in those hours.” Thus, said the court, “it necessarily follows that the school district’s unilateral change cannot constitute the improper practice of failure to bargain in good faith.” The court characterized the district’s action as a breach of the contract, remediable through the contractual grievance procedure agreed upon by the parties.
If, however, the contract’s work hours provision was subject to a so-called “contract re-opener” clause, in which the parties identify in the contract a specific issue to be reconsidered at a later date, any change would be subject to collective bargaining. If a party then failed to bargain in good faith, PERB would have exclusive jurisdiction to resolve that issue.
In Susquehanna Valley situation, however, the court ruled that PERB does not have “exclusive jurisdiction” for two reasons:
1. CSEA did not allege anything that was within PERB’s jurisdiction under Section 209-a[1][d] of the Civil Service Law. This subdivision provides that an employer’s alleged failure to bargain in good faith constitutes an “improper employer practice” as Local 1000 simply complained that the district had violated specific terms and conditions of employment set out in the agreement.
2. Section 205(5)(d) places limits PERB’s authority and PERB does not have jurisdiction with respect to (a) enforcing the terms of an agreement between the parties, nor (b) considering alleged violations of a Taylor Law agreement.
Reinstating the ruling by the Supreme Court, the Court of Appeals held that the district had violated the “unambiguous” terms of the Taylor Law agreement between the parties. It directed the district to restore their full-time working hours, salary and benefits “unless/until the conditions of said employment are altered in accordance with the provisions of the collective bargaining agreement.”
As to the “management right’s clause” aspect of the controversy, the Court of Appeals observed that “the scope of the management prerogative clauses was ... ‘a contractual issue beyond PERB’s jurisdiction’” as well. Presumably, this provision could be advanced by the district in support of claim that its unilateral change in the matron’s work schedule did not violate the contract.
NYPPL
Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability
Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability
Stroh v Harrison School District, NYS Sup. Ct., [Not selected for publication in the Official Reports]
The Stroh case illustrates some of the elements an employer should consider in the event an individual is disabled as the result of a work-connected injury or disease for the purposes of Section 71 of the Civil Service Law.
Essentially Section 71 provides that where an individual has been disabled within the meaning of the Workers’ Compensation Law, he or she is entitled to a leave of absence for at least one year, unless the individual is permanently incapacitated from performing the duties of his or her position. This is commonly referred to as “Section 71 leave.” If the employee is terminated from a Section 71 leave, he or she may seek reinstatement by applying to the civil service commission having jurisdiction for a medical examination. This application must be submitted by the individual within one year of the termination of his or her disability.
If the commission’s medical officer certifies that the individual is physically and mentally fit to perform the duties of the position, the individual is to be reinstated to his or her former position, if it is available. If it is not available, the individual is to be reinstated to a similar position or a position for which he or she is eligible. If no position is available, the individual’s name is to be placed on a preferred list.
In this case, State Supreme Court Justice Samuel G. Fredman held that Thomas Stroh, the Harrison School District’s head custodian, had not been “properly terminated” within the meaning of Section 71 because he had never been placed on leave pursuant to Section 71. Accordingly, Stroh, said the court, was entitled to reinstatement with back salary and benefits as of December 31, 1995.
Justice Fredman concluded that Stroh had not been placed on leave pursuant to Section 71 because the district did not establish “either that [Stroh’s] date of injury was the date of commencement of the governing Section 71 time period, or that [Stroh] was made aware of this fact in any event.”
The court found that Stroh suffered a work-related injury and was out “on workers’ compensation” from April 1994 until he returned to work in February 1995. On March 20, 1995, the district determined that Stroh “was unable to perform his job duties” and placed him on “sick leave.” It later told him that was terminated pursuant to Section 71. The decision also notes that Stroh applied for, but was denied, accidental disability retirement by the New York State Employees’ Retirement System.
Justice Fredman said that he “declines to leave [Stroh] in the untenable position into which [the district’s] actions have placed him, namely, that his employment was terminated by [the district] because he allegedly was disabled, but the Retirement System has found him ‘not permanently incapacitated for the performance’ of the very same duties and denied his application for an Accidental Disability Retirement.”
Another element noted by the court was the medical opinion submitted by the district’s physician which stated that it was the “physician’s ‘impression’ that ‘Mr. Stroh will not be able to fulfill his duties as so outlined’ in ‘the job description of a Head Custodial worker’....” This, said the Justice Fredman, does not “indicate unequivocally” that Stroh was unable to fulfill his duties.
The Americans with Disabilities Act [ADA] could also be a factor in Section 71 cases. If an individual is found, or is perceived to be, disabled, ADA requires that the employer consider the practicability of providing a “reasonable accommodation” of the employee’s disability. Stroh claimed that he could perform the duties of his position while his employer decided that he was not qualified to do so.
Although the ruling is silent on this point, the respective positions of the parties suggest that it would have been appropriate for the district to have explored the possibility of providing Stroh with a “reasonable accommodation” in order to be in compliance with ADA.
Stroh v Harrison School District, NYS Sup. Ct., [Not selected for publication in the Official Reports]
The Stroh case illustrates some of the elements an employer should consider in the event an individual is disabled as the result of a work-connected injury or disease for the purposes of Section 71 of the Civil Service Law.
Essentially Section 71 provides that where an individual has been disabled within the meaning of the Workers’ Compensation Law, he or she is entitled to a leave of absence for at least one year, unless the individual is permanently incapacitated from performing the duties of his or her position. This is commonly referred to as “Section 71 leave.” If the employee is terminated from a Section 71 leave, he or she may seek reinstatement by applying to the civil service commission having jurisdiction for a medical examination. This application must be submitted by the individual within one year of the termination of his or her disability.
If the commission’s medical officer certifies that the individual is physically and mentally fit to perform the duties of the position, the individual is to be reinstated to his or her former position, if it is available. If it is not available, the individual is to be reinstated to a similar position or a position for which he or she is eligible. If no position is available, the individual’s name is to be placed on a preferred list.
In this case, State Supreme Court Justice Samuel G. Fredman held that Thomas Stroh, the Harrison School District’s head custodian, had not been “properly terminated” within the meaning of Section 71 because he had never been placed on leave pursuant to Section 71. Accordingly, Stroh, said the court, was entitled to reinstatement with back salary and benefits as of December 31, 1995.
Justice Fredman concluded that Stroh had not been placed on leave pursuant to Section 71 because the district did not establish “either that [Stroh’s] date of injury was the date of commencement of the governing Section 71 time period, or that [Stroh] was made aware of this fact in any event.”
The court found that Stroh suffered a work-related injury and was out “on workers’ compensation” from April 1994 until he returned to work in February 1995. On March 20, 1995, the district determined that Stroh “was unable to perform his job duties” and placed him on “sick leave.” It later told him that was terminated pursuant to Section 71. The decision also notes that Stroh applied for, but was denied, accidental disability retirement by the New York State Employees’ Retirement System.
Justice Fredman said that he “declines to leave [Stroh] in the untenable position into which [the district’s] actions have placed him, namely, that his employment was terminated by [the district] because he allegedly was disabled, but the Retirement System has found him ‘not permanently incapacitated for the performance’ of the very same duties and denied his application for an Accidental Disability Retirement.”
Another element noted by the court was the medical opinion submitted by the district’s physician which stated that it was the “physician’s ‘impression’ that ‘Mr. Stroh will not be able to fulfill his duties as so outlined’ in ‘the job description of a Head Custodial worker’....” This, said the Justice Fredman, does not “indicate unequivocally” that Stroh was unable to fulfill his duties.
The Americans with Disabilities Act [ADA] could also be a factor in Section 71 cases. If an individual is found, or is perceived to be, disabled, ADA requires that the employer consider the practicability of providing a “reasonable accommodation” of the employee’s disability. Stroh claimed that he could perform the duties of his position while his employer decided that he was not qualified to do so.
Although the ruling is silent on this point, the respective positions of the parties suggest that it would have been appropriate for the district to have explored the possibility of providing Stroh with a “reasonable accommodation” in order to be in compliance with ADA.
NYPPL
November 22, 2010
Hearing officer recommends termination of employee unwilling to follow instructions
Hearing officer recommends termination of employee unwilling to follow instructions
Dept. of Housing Preservation and Development v Hand, OATH Index #2594/10
OATH Administrative Law Judge Kara Miller decided that a clerical employee's persistent unwillingness to properly process tenant appointments warranted termination.
Judge Miller found that the employee, Deborrah Hand, had improperly processed 112 appointments despite the fact that she had been given step-by-step instructions on how to do the task.
Hand, instead, “deliberatively chose to do it her own way.” As a result of Hand's failure to make proper computer entries complaints were automatically closed out and inspectors were not sent to scheduled inspections.
Consequently, Housing received complaints from tenants who waited at home for inspectors who never came.
Judge Miller recommend that Hand be terminated because of her unwillingness to follow instructions “constituted incompetence.” The ALJ also commented that Hand’s incompetence “cannot be cured by moving her to another job title.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2594.pdf
NYPPL
Dept. of Housing Preservation and Development v Hand, OATH Index #2594/10
OATH Administrative Law Judge Kara Miller decided that a clerical employee's persistent unwillingness to properly process tenant appointments warranted termination.
Judge Miller found that the employee, Deborrah Hand, had improperly processed 112 appointments despite the fact that she had been given step-by-step instructions on how to do the task.
Hand, instead, “deliberatively chose to do it her own way.” As a result of Hand's failure to make proper computer entries complaints were automatically closed out and inspectors were not sent to scheduled inspections.
Consequently, Housing received complaints from tenants who waited at home for inspectors who never came.
Judge Miller recommend that Hand be terminated because of her unwillingness to follow instructions “constituted incompetence.” The ALJ also commented that Hand’s incompetence “cannot be cured by moving her to another job title.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2594.pdf
NYPPL
A party seeking to vacate an arbitration award must prove one or more of the limited reasons for vacating the award set out in Article 75
A party seeking to vacate an arbitration award must prove one or more of the limited reasons for vacating the award set out in Article 75
Matter of Smith v New York City Dept. of Educ., 2010 NY Slip Op 51989(U), Decided on November 8, 2010, Supreme Court, New York County, Judge Barbara Jaffe, [Not selected for publication in the Official Reports]
Theodore Smith, a tenured physical education teacher at the New York City Department of Education’s Museum School, was served with 23 charges Education Law 3020-a.
Arbitrator Jack Tillem was assigned to conduct the hearing in the [first] proceeding. In the course of this proceeding Smith’s attorney, David Kearney,* told Tillem that Smith had threatened to kill Tillem, whereupon Tillem recused himself from conducting the hearing in the first proceeding. .
Following an investigation by Office of the Special Commissioner of Investigations (SCI) into Kearney's allegations Smith was referred to the Department of Education’s Medical Unit for psychiatric evaluation. In the meanwhile, Kearney moved for leave to withdraw as counsel for Smith in the federal court action and described why he wished to so withdraw -- the threats Smith allegedly made against Tillem.**
Subsequently a new arbitrator conducted the disciplinary hearing , found Smith guilty of certain charges and recommended that Smith be suspended without pay for one year, a ruling that was ultimately sustained by the Appellate Division. [Smith v Department of Education, 67 AD3d 555, motion for leave to appeal denied, Slip Opinion No: 2010 NY Slip Op 66952].
The Department of Education then commenced a second disciplinary proceeding against Smith pursuant to Education Law 3020-a in which it alleged that Smith had made death threats against Tillem resulting in Tillem's recusing himself from the first proceeding thus “causing delay and thereby obstructing, impairing and perverting the administration of law.”***
The arbitrator found that Smith had "uttered death threats" against the arbitrator assigned to his first §3020-a hearing and that "such threats constituted just cause for [Smith's] dismissal from service."
Smith filed a petition pursuant to CPLR Article 75 contending that the arbitration award should be vacated on the ground of corruption, or fraud or misconduct by the arbitrator and the Department's attorneys, “which undermined the validity of the award and prejudiced his rights, as the arbitrator was biased against him.”
Noting that the scope of judicial review of an arbitration proceeding is extremely limited, Judge Jaffe said that “The court must defer to the arbitrator's decision and is bound by the arbitrator's factual findings and interpretations of the agreement at issue.”
Judge Jaffe explained that after a hearing is held pursuant to §3020-a, a party may apply to vacate the arbitrator's decision pursuant to CPLR 7511 based on allegations of misconduct, bias, excess of power, or procedural defects.
The party challenging the arbitration award, however, has the burden of proving that the award is invalid for one or more of the reasons for vacating an arbitration award specified in CPLR Article 75. Further, an allegation of bias against an arbitrator must be established by clear and convincing proof, showing more than a mere inference of partiality.
Judge Jaffe, finding that the arbitrator’s award in the second proceeding was rational and supported by adequate evidence, ruled that Smith had not satisfied his burden of proving that the arbitrator engaged in corruption, or fraud, or misconduct, and confirmed the arbitration award.
* Prior to the charges being brought against Smith, Smith retained the law firm of Neal Brickman & Associates to file a lawsuit in federal court against the NYC Department of Education. David Kearney, an attorney with the firm, agreed to represent Smith in the Federal action and subsequently agreed to represent Smith in the §3020-a proceeding.
** SCI reported that it had substantiated Kearney's allegations regarding Smith’s threats and recommended that Smith's employment be terminated and that he be placed on the Department’s “ineligible employment list.”
*** Smith was later served with third set of charges related to time and attendance. All of the charges were consolidated and considered in the second §3020-a hearing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51989.htm
NYPPL
Matter of Smith v New York City Dept. of Educ., 2010 NY Slip Op 51989(U), Decided on November 8, 2010, Supreme Court, New York County, Judge Barbara Jaffe, [Not selected for publication in the Official Reports]
Theodore Smith, a tenured physical education teacher at the New York City Department of Education’s Museum School, was served with 23 charges Education Law 3020-a.
Arbitrator Jack Tillem was assigned to conduct the hearing in the [first] proceeding. In the course of this proceeding Smith’s attorney, David Kearney,* told Tillem that Smith had threatened to kill Tillem, whereupon Tillem recused himself from conducting the hearing in the first proceeding. .
Following an investigation by Office of the Special Commissioner of Investigations (SCI) into Kearney's allegations Smith was referred to the Department of Education’s Medical Unit for psychiatric evaluation. In the meanwhile, Kearney moved for leave to withdraw as counsel for Smith in the federal court action and described why he wished to so withdraw -- the threats Smith allegedly made against Tillem.**
Subsequently a new arbitrator conducted the disciplinary hearing , found Smith guilty of certain charges and recommended that Smith be suspended without pay for one year, a ruling that was ultimately sustained by the Appellate Division. [Smith v Department of Education, 67 AD3d 555, motion for leave to appeal denied, Slip Opinion No: 2010 NY Slip Op 66952].
The Department of Education then commenced a second disciplinary proceeding against Smith pursuant to Education Law 3020-a in which it alleged that Smith had made death threats against Tillem resulting in Tillem's recusing himself from the first proceeding thus “causing delay and thereby obstructing, impairing and perverting the administration of law.”***
The arbitrator found that Smith had "uttered death threats" against the arbitrator assigned to his first §3020-a hearing and that "such threats constituted just cause for [Smith's] dismissal from service."
Smith filed a petition pursuant to CPLR Article 75 contending that the arbitration award should be vacated on the ground of corruption, or fraud or misconduct by the arbitrator and the Department's attorneys, “which undermined the validity of the award and prejudiced his rights, as the arbitrator was biased against him.”
Noting that the scope of judicial review of an arbitration proceeding is extremely limited, Judge Jaffe said that “The court must defer to the arbitrator's decision and is bound by the arbitrator's factual findings and interpretations of the agreement at issue.”
Judge Jaffe explained that after a hearing is held pursuant to §3020-a, a party may apply to vacate the arbitrator's decision pursuant to CPLR 7511 based on allegations of misconduct, bias, excess of power, or procedural defects.
The party challenging the arbitration award, however, has the burden of proving that the award is invalid for one or more of the reasons for vacating an arbitration award specified in CPLR Article 75. Further, an allegation of bias against an arbitrator must be established by clear and convincing proof, showing more than a mere inference of partiality.
Judge Jaffe, finding that the arbitrator’s award in the second proceeding was rational and supported by adequate evidence, ruled that Smith had not satisfied his burden of proving that the arbitrator engaged in corruption, or fraud, or misconduct, and confirmed the arbitration award.
* Prior to the charges being brought against Smith, Smith retained the law firm of Neal Brickman & Associates to file a lawsuit in federal court against the NYC Department of Education. David Kearney, an attorney with the firm, agreed to represent Smith in the Federal action and subsequently agreed to represent Smith in the §3020-a proceeding.
** SCI reported that it had substantiated Kearney's allegations regarding Smith’s threats and recommended that Smith's employment be terminated and that he be placed on the Department’s “ineligible employment list.”
*** Smith was later served with third set of charges related to time and attendance. All of the charges were consolidated and considered in the second §3020-a hearing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51989.htm
NYPPL
Statute of limitations for filing Section 75 disciplinary charges
Statute of limitations for filing Section 75 disciplinary charges
Wade v Ticonderoga Town Board, 256 AD2d 860, motion for leave to appeal denied, 93 NY2d 804
Section 75 disciplinary charges were brought against John K. Wade, then serving as the Town of Ticonderoga’s chief of police. The charges alleged that Wade had engaged in sexual misconduct directed at town employees or former town employees. Wade was found guilty of the charges and the penalty imposed was dismissal.
Wade appealed, contending that certain charges filed against him were barred by the statute of limitations as they were brought more than 12 months after the relevant incident. He argued that Section 75.4’s 18-month statute of limitation for bring such charges did not apply in his case because he was a “managerial employee” and the statute of limitations for such employees is one-year after the occurrence of the alleged incompetency or misconduct occurred.
The Appellate Division, however, pointed out that Wade’s theory overlooked one critical phrase contained in Section 75.4: a “state employee who is designated managerial or confidential” within the meaning of the Taylor Law. The court said “the simple answer is that, as Chief of a Town police force, [Wade] was not a State employee.”
Accordingly, the court ruled, Section 75.4’s “general 18-month Statute of Limitations will govern all of the specifications against [Wade] except those which, “if proved in a court of appropriate jurisdiction, [would] constitute a crime, in which case no limitations period applies.”
Apparently some of the charges were brought more than 18 months after the underlying incident. The Appellate Division commented that such charges, “if established at trial, have made out either the crime of sexual abuse in the third degree [Penal Law Section 130.55] or the crime of aggravated harassment in the second degree [Penal Law Section 240.30(1)] or both.”
As to the penalty imposed, dismissal, the court said that Wade’s “unprovoked, unwelcome and unwarranted sexual advances, sexual contact and demeaning comments of a sexual nature directed to female employees were entirely inappropriate and constitute conduct unbecoming a police officer.”
Finding that the penalty was “by no means so disproportionate as to shock our sense of fairness,” the Appellate Division pointed out that in Petties v NYS Department of Mental Retardation and Development Disabilities, 93 AD2d 960, it held that “sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.”
NYPPL
Wade v Ticonderoga Town Board, 256 AD2d 860, motion for leave to appeal denied, 93 NY2d 804
Section 75 disciplinary charges were brought against John K. Wade, then serving as the Town of Ticonderoga’s chief of police. The charges alleged that Wade had engaged in sexual misconduct directed at town employees or former town employees. Wade was found guilty of the charges and the penalty imposed was dismissal.
Wade appealed, contending that certain charges filed against him were barred by the statute of limitations as they were brought more than 12 months after the relevant incident. He argued that Section 75.4’s 18-month statute of limitation for bring such charges did not apply in his case because he was a “managerial employee” and the statute of limitations for such employees is one-year after the occurrence of the alleged incompetency or misconduct occurred.
The Appellate Division, however, pointed out that Wade’s theory overlooked one critical phrase contained in Section 75.4: a “state employee who is designated managerial or confidential” within the meaning of the Taylor Law. The court said “the simple answer is that, as Chief of a Town police force, [Wade] was not a State employee.”
Accordingly, the court ruled, Section 75.4’s “general 18-month Statute of Limitations will govern all of the specifications against [Wade] except those which, “if proved in a court of appropriate jurisdiction, [would] constitute a crime, in which case no limitations period applies.”
Apparently some of the charges were brought more than 18 months after the underlying incident. The Appellate Division commented that such charges, “if established at trial, have made out either the crime of sexual abuse in the third degree [Penal Law Section 130.55] or the crime of aggravated harassment in the second degree [Penal Law Section 240.30(1)] or both.”
As to the penalty imposed, dismissal, the court said that Wade’s “unprovoked, unwelcome and unwarranted sexual advances, sexual contact and demeaning comments of a sexual nature directed to female employees were entirely inappropriate and constitute conduct unbecoming a police officer.”
Finding that the penalty was “by no means so disproportionate as to shock our sense of fairness,” the Appellate Division pointed out that in Petties v NYS Department of Mental Retardation and Development Disabilities, 93 AD2d 960, it held that “sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.”
NYPPL
Employee charged with “computer trespass” for allegedly tampering with department’s computer records
Employee charged with “computer trespass” for allegedly tampering with department’s computer records
Saunders v Washington County, 255 AD2d 788
After announcing that she was resigning her from position as payroll clerk with the Washington County Sheriff’s Department, Mary Lou Saunders told a co-worker, Joanne Murone, she had deleted a budget report from the computer and planned on deleting other files.
Murone reported Saunders’ statement to her superiors and Saunders’ computer access code was deactivated the same day - July 22, 1992.
On July 23, 1992, a current purchase order list could not be retrieved from the computer. It was then discovered that between 9:30 a.m. and 9:42 a.m. “someone had accessed the computer from the communications center using Murone’s access code and deleted over 100 files.” When questioned by the Sheriff, Saunders admitted that she had used Murone’s access code without permission to delete the files, claiming that “she did not intentionally delete current files.”
During a subsequent investigation by the State Police, Saunders “indicated that she had been the subject of harassment at work and readily acknowledged that, after being denied access to the computer system, she used Murone’s code to delete files in an ‘attempt to show the department the value of [her] services.’”
Saunders was arrested and charged with a felony count of “computer trespass” [Penal Law Section 156.10(2)] and a misdemeanor count of tampering with public records ... [Penal Law Section 175.20]. The felony charge was reduced to misdemeanor.
After a jury acquitted Saunders of all charges, she sued the county, alleging “false arrest, malicious prosecution and defamation.” A State Supreme Court justice granted the county’s motion for summary judgment, dismissing Saunders’ petition.
With respect to Saunders’ allegations of false arrest and malicious prosecution, the Appellate Division affirmed the lower court’s dismissal of her complaint, indicating that “the unrefuted evidence in the record, including [Saunders’] own admissions and the statements of her co-workers, supports a finding that a reasonable person would have believed that [Saunders] had committed the crimes for which she was arrested.”
As to Saunders’ defamation claims, which was based on the Sheriff’s Department’s issuing a press release reporting her arrest, the Appellate Division pointed out that “truth constitutes a complete defense to such a claim.”
Since there was no substantive factual dispute that all the statements contained in the press release were true, the Appellate Division held that Saunders’ defamation cause of action was also properly dismissed by the lower court.
NYPPL
Saunders v Washington County, 255 AD2d 788
After announcing that she was resigning her from position as payroll clerk with the Washington County Sheriff’s Department, Mary Lou Saunders told a co-worker, Joanne Murone, she had deleted a budget report from the computer and planned on deleting other files.
Murone reported Saunders’ statement to her superiors and Saunders’ computer access code was deactivated the same day - July 22, 1992.
On July 23, 1992, a current purchase order list could not be retrieved from the computer. It was then discovered that between 9:30 a.m. and 9:42 a.m. “someone had accessed the computer from the communications center using Murone’s access code and deleted over 100 files.” When questioned by the Sheriff, Saunders admitted that she had used Murone’s access code without permission to delete the files, claiming that “she did not intentionally delete current files.”
During a subsequent investigation by the State Police, Saunders “indicated that she had been the subject of harassment at work and readily acknowledged that, after being denied access to the computer system, she used Murone’s code to delete files in an ‘attempt to show the department the value of [her] services.’”
Saunders was arrested and charged with a felony count of “computer trespass” [Penal Law Section 156.10(2)] and a misdemeanor count of tampering with public records ... [Penal Law Section 175.20]. The felony charge was reduced to misdemeanor.
After a jury acquitted Saunders of all charges, she sued the county, alleging “false arrest, malicious prosecution and defamation.” A State Supreme Court justice granted the county’s motion for summary judgment, dismissing Saunders’ petition.
With respect to Saunders’ allegations of false arrest and malicious prosecution, the Appellate Division affirmed the lower court’s dismissal of her complaint, indicating that “the unrefuted evidence in the record, including [Saunders’] own admissions and the statements of her co-workers, supports a finding that a reasonable person would have believed that [Saunders] had committed the crimes for which she was arrested.”
As to Saunders’ defamation claims, which was based on the Sheriff’s Department’s issuing a press release reporting her arrest, the Appellate Division pointed out that “truth constitutes a complete defense to such a claim.”
Since there was no substantive factual dispute that all the statements contained in the press release were true, the Appellate Division held that Saunders’ defamation cause of action was also properly dismissed by the lower court.
NYPPL
Employee denied unemployment insurance benefits following termination after threatening her supervisor
Employee denied unemployment insurance benefits following termination after threatening her supervisor
Tracy v Comm. of Labor, App. Div., 256 AD2d 800
In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy case indicates, however, leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence.
Pamela A. Tracy was apparently upset about the manner in which management handled her complaints concerning a co-worker’s conduct. She left a “vulgar and threatening” message on her supervisor’s voice mail. As a result she was fired. The Unemployment Insurance Appeals Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct.”
The Appellate Division sustained the board’s decision. It said that it was “well settled that the use of vulgar language and disrespectful conduct towards supervisors constitutes disqualifying misconduct.”
NYPPL
Tracy v Comm. of Labor, App. Div., 256 AD2d 800
In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy case indicates, however, leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence.
Pamela A. Tracy was apparently upset about the manner in which management handled her complaints concerning a co-worker’s conduct. She left a “vulgar and threatening” message on her supervisor’s voice mail. As a result she was fired. The Unemployment Insurance Appeals Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct.”
The Appellate Division sustained the board’s decision. It said that it was “well settled that the use of vulgar language and disrespectful conduct towards supervisors constitutes disqualifying misconduct.”
NYPPL
Payments for superintendent’s doctorate studies by school district found lawful
Payments for superintendent’s doctorate studies by school district found lawful
Decisions of the Commissioner of Education, 14032
Taxpayer David Shufelt complained that the Board of Education of Webutuck Central School District in Dutchess County “authorized payments to district employees without formal resolution or public vote.”
Among the payments challenged by Shufelt was an “educational allowance” supporting the superintendent’s studies towards her doctorate degree. The Commissioner of Education dismissed Shufelt’s appeal as untimely but nevertheless commented that:
The superintendent’s contract clearly allowed for the board to pay her an educational allowance. [Shufelt] has failed to demonstrate that this benefit was in any way improper.
NYPPL
Decisions of the Commissioner of Education, 14032
Taxpayer David Shufelt complained that the Board of Education of Webutuck Central School District in Dutchess County “authorized payments to district employees without formal resolution or public vote.”
Among the payments challenged by Shufelt was an “educational allowance” supporting the superintendent’s studies towards her doctorate degree. The Commissioner of Education dismissed Shufelt’s appeal as untimely but nevertheless commented that:
The superintendent’s contract clearly allowed for the board to pay her an educational allowance. [Shufelt] has failed to demonstrate that this benefit was in any way improper.
NYPPL
November 19, 2010
Goggle Blogger Reading List
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The "Blogger Reading List" you create enables you to subscribe to any blog with a feed* and will update instantly each time a new post is published on any blog listed on your "Blogger Reading List."
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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