Proposed amendment of 4 NYCRR 73.2 addresses the disqualification of individuals from participating in the New York State Health Insurance Plan

Proposed amendment of 4 NYCRR 73.2 addresses the disqualification of individuals from participating in the New York State Health Insurance Plan Source: NYS Register, November 24, 2010

The New York State Department of Civil Service has proposed amending 4 NYCRR 73.2 with respect to the disqualification of individuals from participating in the New York State Health Insurance Plan (‘‘NYSHIP’’) and receiving NYSHIP benefits

Text of proposed rule: That subdivision (e) of Section 73.2 of Part 73 of the Regulations of the Department of Civil Service (President’s Regulations) is amended to read as follows:

(e) Disqualification. The president may disqualify from participation in the health insurance plan and from receiving benefits thereunder any employee or retired employee or dependent of an employee or retired employee who has secured or attempted to secure participation in the health insurance plan or benefits under the plan for himself or another by fraud, deception or a false statement of a material fact, or who has accepted benefits for himself or another knowing he was not entitled thereto. No person shall be disqualified or denied benefits pursuant to this subdivision unless he is first given a written statement of the reasons therefor and afforded an opportunity to make an explanation and submit facts in opposition to such action. Such employee, retired employee or dependent of an employee or retired employee may be restored to eligibility for coverage under the plan only on approval of the president and subject to such conditions as may be imposed by the president, including repayment of sums expended for benefits obtained by fraud, deception or false statement of a material fact, or accepted by the employee with knowledge that he was not entitled thereto.

Public comment will be received until: 45 days after publication of the notice. Data, views or arguments concerning the proposed amendment may be submitted to Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us

The text of the proposed amendment and related information is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
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Separate layoff units for NYS Department of Environmental Conservation law enforcement personnel proposed

Separate layoff units for NYS Department of Environmental Conservation law enforcement personnel proposed
Source: NYS Register, November 24, 2010

The amendment, if adopted would “designate the Agency Law Enforcement Services negotiating unit as a separate layoff unit with Dept. of Environmental Conservation.”

The text of the proposed rule and any required statements and analyses may be
obtained from: Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us

Data, views or arguments concerning the proposed amendment may be submitted to: Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us Public comment will be received until: 45 days after publication of this notice.

The full text of the proposal submitted to the Department of State is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
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Video evidence exonerates security officers charged with using excessive force

Video evidence exonerates security officers charged with using excessive force
Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v Charles and Ross, OATH Index Nos. 2802/10 & 2803/10

The NYC Health and Hospital Corporation filed disciplinary charges alleging that two Lincoln Medical Center hospital special officers, Morris Charles and Christopher Ross, used excessive force against a hospital visitor when they escorted him outside.

OATH Administrative Law Judge Kara J. Miller determined that the officers and the visitor began to struggle inside the vestibule between the inner and outer doorways of the facility and then on the sidewalk in front of the building.

However, Judge Miller ruled that the video evidence presented by the Corporation failed to support the charges filed against the two officers and, further, that Charles and Ross “credibly established that the visitor initiated the physical altercation by cursing loudly and trying to hit them with a cane.”

Finding that the two security officers had reasonably attempted to de-escalate the situation and when that failed, the force used was not excessive under the circumstances, Judge Miller recommended that the disciplinary charges be dismissed.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2802.pdf
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Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee

Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee
Matter of Gibbons v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 08571, Decided on November 16, 2010, Appellate Division, Second Department

Grace Gibbons, a court reporter in the District Court, Nassau County, for 22 years, was served with disciplinary charges.

In the course of the disciplinary hearing the Office of Court Administration presented evidence that Gibbons had been “insubordinate to her supervisors and to a District Court Judge, that she failed to produce transcripts in a timely manner, and that she was excessively absent without providing sufficient notice.”

The disciplinary hearing officer, Colleen M. Fondulis, found Gibbons guilty of a number of the charges filed against her and recommended that she be dismissed from her position. The Deputy Chief Administrative Judge for Courts Outside of New York City, Jan H. Plumadore, concurred, finding Gibbons guilty of the misconduct and incompetence alleged in many of the 20 specifications. Judge Plumadore adopted the hearing officer's recommendation as to the penalty to be imposed and terminated Gibbons from her position.

Gibbons filed a petition pursuant to CPLR Article 78 appealing Judge Plumadore’s determination.

The Appellate Division said that test of the lawfullness of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.* In this instance, said the court, it found that that the administrative determination was supported by substantial evidence.

Further, the court said that "[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists," citing Matter of Berenhaus v Ward, 70 NY2d 436.

In considering the penalty imposed on Gibbons, termination, the Appellate Division noted that a penalty imposed following an administrative disciplinary hearing based on a finding that the individual is guilty of one or more of the charges must be sustained unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” the so-called “Pell Standard.”**

Considering Gibbons’ “repeated acts of insubordination, absences, and untimely completion of transcripts,” the Appellate Davison said that the penalty imposed, termination, did not shock its sense of fairness.

* Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"

** Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08571.htm
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Errors in processing a disciplinary action results in annulment of determination

Errors in processing a disciplinary action results in annulment of determination
Collins v Parishville-Hopkinton CSD, 256 AD2d 700

The Collins case demonstrates that even what one might assume is an “open and shut” disciplinary case can go awry.

It was undisputed that Ann Collins, a full-time bus driver employed by the Parishville-Hopkinton Central School District, brought a 12-pack of beer with her to the district’s bus garage and that she drank some of the beer while waiting to be taken to a bus drivers training workshop.

The district filed disciplinary charges against her pursuant to Section 75 of the Civil Service Law, alleging Collins that she:

1. brought and consumed beer on school district property;

2. attended a bus driver safety workshop after having consumed beer;

3. was under the influence of alcohol at the training session;

4. drove out of the district’s parking lot at a high rate of speed, spinning the vehicles tires and “fishtailing;” and

5. appeared distracted and inattentive at the training session.

Although Collins was found guilty “of the charges laid against her” and terminated, the Appellate Division annulled the determination because it found that “the determination of the hearing officer and of the Board of Education were replete with error.”

The hearing officer erred by finding the employee guilty of some offenses with which she had not been charged. This is not permissible under Section 75 unless the charges are amended by the appointing authority, here the school board. Such an error is a denial of due process; the employee must have notice of what offenses he or she is charged with and have an opportunity to prepare a defense.

In Collins’ case, the Appellate Division pointed out that the determination made in a disciplinary proceeding “must be based on the charges [and] no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” The court ruled that the hearing officer erred when he found Collins guilty of two uncharged specifications of misconduct and based his penalty recommendation on those findings.

The school board erred by failing to explain its decision to find the employee guilty of all the original charges, despite the fact that the hearing officer found the employee innocent of some of the original charges.

An appointing authority may ignore a hearing officer’s finding of innocence on a specific charge and nevertheless find the employee guilty of that charge but in such a circumstance it behooves the appointing authority to cite evidence in the record to support its determination. If the employee chooses to appeal the determination, the courts typically will view an “unsupported” determination as arbitrary and capricious.*

As to the action taken by the school board, the Appellate Division explained that “although the Board of Education was not bound by the hearing officer’s determination to dismiss four of the charges [i.e., charges 2-5] levied against [Collins] and was entitled to find [her] guilty of those charges if the evidence provided adequate factual support therefore, it was incumbent upon the Board of Education to render a decision with specific factual findings supporting its conclusions in that regard.”

In other words, while the board could find Collins guilty of charges 2-5 as reflected by its resolution, it was required to set out the evidence it relied upon to support its findings of guilt if it hoped to have its determination withstand judicial scrutiny.

The court said that under the circumstances, the board’s decision had to be annulled and the matter remanded to it so that it may make findings of fact in support of whatever decision it may deem proper “based on the evidence previously presented” to it. Clearly, the Appellate Division’s directive precludes the district from holding a new hearing on the “formal” charges it initially filed against Collins.

* According to the decision, the hearing officer found that Collins brought and consumed beer on school property; offered beer to other drivers; and left beer in the open back of her pick-up truck parked in the district’s parking lot. Concluding that this constituted poor judgment, he recommended that Collins be dismissed. The School Board passed, without further elaboration, a resolution finding Collins “guilty of the charges laid against her and each of them.” It then adopted the hearing officer’s recommendation that Collins be dismissed. It appears that the hearing officer found Collins guilty of charge 1, together with 2 other offenses not charged. The school board apparently found Collins guilty of the charges filed against her, including charge 1, but did not adopt the findings of the hearing regarding Collins offering beer to other drivers and leaving beer exposed in the back of her truck.

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Jurisdiction of the Commissioner of Education to consider Taylor Law and Open Meetings Law issues

Jurisdiction of the Commissioner of Education to consider Taylor Law and Open Meetings Law issues
Matter of Goldin and the Wappingers Falls CSD, Decisions of the Commissioner of Education, 14043

This decision by the Commissioner of Education points out he does not have jurisdiction to resolve a dispute merely because the issue involves a school district. In this Education Law Section 310 appeal filed with the Commissioner, the issues raised concerned the terms of a collective bargaining agreement and the State’s Open Meetings Law.

After noting that Goldin’s appeal had to be dismissed for a number of procedural reasons including her failure to include all necessary parties -- the Board of Education and the Congress -- the Commissioner dismissed the appeal on the grounds that he did not have the authority to resolve these issues.

Since 1988 collective bargaining agreements between the Wappingers Central School District and the Wappingers Congress of Teachers provided that the Congress’ president, in order to conduct union business, “will teach three periods per day if he/she is a secondary teacher and will act as a substitute three days per week if he/she is an elementary teacher.”

A 1995 “side letter” signed by school superintendent John G. Marmillo and Congress president Ronald L. Warman relieved Warman of all of his teaching duties in order to allow him to conduct Congress business. The Congress was to reimburse the district in accordance with an agreed upon formula based on “60 percent of the substitute pay rate.”

Contending that the “side letter is an illegal document,” Dione Goldin filed an appeal with the Commissioner pursuant to Section 310 of the Education Law naming school superintendent John G. Marmillo and Congress president Ronald L. Warman as the respondents. She asked the Commissioner of Education to annul the side letter and order the Congress to reimburse the district the “salary for the period covered under the letter” paid to its president.

This decision demonstrates that including all the “necessary parties” is critical in prosecuting a Section 310 appeal before the Commissioner. As an example, in an appeal in which parents sought to have a school bus driver dismissed because of alleged “abusive conduct” towards students after the district declined to do so, the Commissioner said that “the parents’ failure to name the driver as a respondent required that he dismiss their appeal” [Appeal of Lippman (Holland Central School District), Decision 14041]. The decision points out that “a party whose rights would be adversely affected by a determination of an appeal in favor of the petitioner is a necessary party and must be joined as such.”

The Commissioner pointed out that “to the extent that [Goldin] seeks an order directing the Wappingers Congress of Teachers to reimburse the school district, union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law Section 310.”

Goldin also complained that the Board of Education violated the Open Meetings Law. The Commissioner said that alleged violations of the Open Meetings Law must be pursued in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, rather than a Section 310 appeal.
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