Willful dishonesty in responding to superior’s question justifies dismissal of the employee

Willful dishonesty in responding to superior’s question justifies dismissal of the employee
Department of Correction v Katanic, OATH #2117/10

Jason Katanic, a NYC Department of Corrections correction officer, trained other officers in gun safety and marksmanship.

The Department charged Katanic with the possession of “five undocumented handguns and three undocumented rifles, including two rifles that were illegal assault weapons.”

OATH Administrative Law Judge Joan R. Salzman found that Katanic had failed to obtain the required permission from the Department before he purchased the weapons as required by Department Directives.*

Judge Salzman also found that Katanic “was willfully dishonest” on multiple occasions when questioned by his superiors about his possession of those firearms.

Judge Salzman recommended that, despite Katanic’s 13-year record with the Department, his dishonesty and breach of security and trust warranted his being terminated from his position.

* Directive 4511R-A provides that a correction officer was required to file the necessary form to apply for permission from the Commanding Officer to purchase a personal handgun and that “A separate application to/and approval from the member’s Commanding Officer must precede each purchase of an additional firearm.”

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2117.pdf
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Police officer terminated after failing to report the loss of evidence

Police officer terminated after failing to report the loss of evidence
Bonifacio v Safir, App. Div., First Dept., 277 AD2d 8, Motion for leave to appeal denied, 96 NY2d 706

The Appellate Division sustained the dismissal of New York City police officer George Bonifacio after he was found guilty of disciplinary charges filed against him.

One charges involved Bonifacio’s actions after he had been reprimanded for having failed to respond to a radio call. According to the findings of the hearing officer, about an hour after he was reprimanded, Bonifacio approached his sergeant to discuss the matter and was discourteous to the point of being threatening. The fact that Bonifacio was upset at the time did not have any mitigating impact on the hearing officer’s consideration of the episode.

Another element in the disciplinary proceeding: Bonifacio also admitted he had failed to safeguard a firearm that he and his partner had recovered at a crime scene. Bonifacio also admitted that he had neglected to note the recovery of the weapon in his log.

Bonifacio attempted to explain his leaving the gun behind at the scene as a mistake that he wanted to cover up out of embarrassment.

The Appellate Division agreed with the hearing officer’s rejection of this excuse, concurring with the hearing officer’s finding that “it was extraordinarily irresponsible of [Bonifacio] not to tell any of his superiors about having left the gun behind, with the result that evidence of a crime was lost and an automatic weapon remains in the public domain.”

The court said that the penalty of dismissal does not shock its sense of fairness citing the Pell doctrine [Pell v Board of Education, 34 NY2d 222].
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Tests applied in cases alleging dismissal from public service because of political affiliation

Tests applied in cases alleging dismissal from public service because of political affiliation
Bavaro and Hogan v Pataki, CA2, 130 F.3d 46

The Bavaro and Hogan v. Pataki case involved attorneys removed from their respective exempt class positions* in the New York State Health Department following the election of a new governor. There was no question that both were terminated because of their political affiliation.

The decision by the Second Circuit U.S. Court of Appeals is important as it sets out the various elements that the Second Circuit [New York State is within the Second Circuit’s jurisdiction] considers when deciding if an individual can claim First Amendment protection if he or she is terminated from the public service because of his or her political affiliation, or the lack of political affiliation.

Ralph Bavaro and Elizabeth Hogan contended that their terminations because of their political affiliation violated their First Amendment rights, which protected them from dismissal based on their political affiliation. The Circuit Court affirmed a district court’s ruling that “the incumbents of the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.”

There are limitations on political tests for continuing in the public service however. In Elrod v Burns, 427 US 347, the U.S. Supreme Court concluded that patronage dismissals may infringe upon government employees’ First Amendment rights to political belief and association.

However, the High Court also noted that a newly elected administration may expect political loyalty among at least some of its employees “to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.”

Subsequently the High Court reaffirmed that patronage dismissals may contravene the First Amendment in Branti v. Finkel [445 U.S. 507]. Branti concerned a deputy public defender employed by a political subdivision of New York. The test to be applied: has the appointing authority demonstrated that party affiliation is an appropriate requirement for the effective performance of the public office involved?

In Branti, the Supreme Court noted that political affiliation is not always relevant even to the job of a policymaker. As an example, the Branti decision notes that the coach of a state university’s football team [typically a position in the unclassified service] formulates policy, “but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa....”

The Second Circuit said that it understood Branti as standing for the proposition that “political affiliation is an appropriate [job] requirement when there is a rational connection between shared ideology and job performance” and thus the courts must look to the “inherent duties of the position” rather than the actual duties performed by the employee in a particular case. Accordingly, it is the official job description that controls, not the nature of the actual assignment or responsibilities of the individual.

In determining whether a “rational connection” exists between political affiliation and performance of the inherent duties of a position, the court said that it considers a number of factors, including the following:

1. Is the position exempt from civil service protection [subject to certain exceptions, i.e., veterans who served in time of war and exempt volunteer firefighters who may be subject to the provisions of Section 75 of the Civil Service Law]?

2. Is some technical competence or expertise required to satisfactorily perform the duties of the position?

3. Does the individual supervise the work of others? and

4. Is the incumbent “empowered to act and speak on behalf of a policymaker, especially an elected official”?

The court found that the positions held by Bavaro and Hogan (1) were in the exempt class; (2) required Bavaro, a supervisor, and Hogan, who was not a supervisor, to have “technical competence and expertise;” and (3) that they were not empowered to speak directly on behalf of an elected official. These findings, however, did not end the court’s inquiry.

The Circuit Court then found that Bavaro and Hogan represented the State in the performance of their duties, thereby reflecting the views of policymakers. This, the Circuit Court concluded, meant that Bavaro and Hogan were inherently involved in matters of policy extending “well beyond mere ministerial or technical duties.”

The court distinguished the role of Bavaro and Hogan from that of Branti. Branti, a deputy public defender, said the court, represented individuals accused of crimes -- not his employer. Accordingly, in a Branti situation the employee’s duty of loyalty is to the individual accused of a crime rather than to his or her employer - the Office of the Public Defender and there is no employer “policy issue” involved.

According to the ruling, Bavaro’s and Hogan’s “inherent duties” indicated a “rational connection between shared ideology and job performance,” so that “political affiliation is an appropriate [job] requirement” of these positions. Such was not the case in Branti, where political affiliation was not deemed a consideration to an individual’s continuation in public service although the position satisfied the four threshold elements set out by the Circuit Court.

* In September 1982 the Health Department justified its seeking jurisdictional re-classification of these titles to exempt status on the grounds that the incumbents “must be able to reflect the views of the Counsel and the [Health] Commissioner in oral appearances . . . and demonstrate the utmost discretion in handling these cases. To insure that the Commissioner’s views are appropriately reflected, the Agency needs maximum flexibility in selection, retention and remuneration.”

Establing a special eligible list

Establing a special eligible list
NYC v NYS Division of Human Rights, 250 AD2d 273

This case started 25 years ago when Eddie Ricks took and passed Civil Service Examination No. 3090 for the title of sanitation worker in the New York City Department of Sanitation (DOS). Ricks was disqualified because of spina bifida, a condition that, under the medical standards then in place, automatically disqualified an applicant for the position.*

In August 1990, the then-Commissioner of Human Rights signed an order upholding a finding of unlawful discrimination. However, the original eligible list had expired, preventing Ricks from being placed on a special eligible list on the basis of Deas v. Levitt (73 NY2d 525). Nevertheless, the then-Commissioner directed the city to pay Ricks compensatory damages consisting of back pay computed from the date he was disqualified to the date the eligible list expired (offset by his actual earnings during that time) as well as the compensatory damages recommended by an Administrative Law Judge.

The State Division Human Rights subsequently realized that the Commissioner who signed the order had appeared as counsel for SDHR in the matter and that “such dual participation in the proceedings” required de novo review and a new order. The newly appointed successor Commissioner vacated the 1990 order, conducted a de novo review of the hearing record and issued a new order that found that Ricks had been discriminated against on the basis of a disability that did not prevent him from performing the duties of the position sought. The city appealed the new ruling.

The Appellate Division said that there was a significance change in the Civil Service Law since Rick’s initial filing of his complaint with SDHR in 1983 with respect to the Division’s 1990 order. In 1990, under the Deas decision, once an eligible list expired, an applicant could be placed on a special eligible list only if he or she had commenced the proceeding challenging the validity of the list prior to its expiration. In 1994, specifically in response to Deas, the Legislature amended Civil Service Law Section 56 to provided that “[a]n applicant or eligible whose disqualification has been reversed or whose rank order has been adjusted subsequent to the expiration of an eligible list shall be placed on a special eligible list for a length of time ... not to exceed a maximum of one year” (CSL Section 56[3]).

The court said that the amendment recognized that because there were often long delays in adjudicating such claims, whether by administrative or judicial proceeding, “[t]oo often applicants find that, like those in Deas and DiNatale, they have won the battle to be found eligible to compete for a permanent civil service appointment, but have lost the war -- because the eligible list is approaching expiration or has expired.”

The Appellate Division resolved the matter by approving the Commissioner’s order in part, directing the city to:

(1) create a special eligible list for the position of sanitation worker for Ricks;

(2) award Ricks retroactive seniority if he is appointed from the special eligible list; and

(3) pay him $10,000 for mental anguish.

It rejected the Commissioner’s awarding Ricks back pay because Ricks only had “an expectancy” of employment rather than a guarantee of an appointment from an eligible list.

* The medical standards were subsequently revised, and the automatic disqualification for spina bifida was dropped.
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Local law permitting suspension of an employee without pay beyond the 30 days permitted by Civil Service Law Section 75 held controlling

Local law permitting suspension of an employee without pay beyond the 30 days permitted by Civil Service Law Section 75 held controlling
Meringolo v Jacobson, 256 AD2d 20

Section 75(3) of the Civil Service Law authorizes the suspension of an individual upon whom disciplinary charges have been filed for up to 30 days without pay.* If the hearing has not been completed by the 30th day, the individual must be restored to the payroll. But what if a local law provides more flexibility? Which law takes precedence? The Meringolo shows that the answer depends on the details of the legislative history, including which law was enacted first.

Meringolo, a corrections captain, was suspended from his job with New York City for more than 30 days. Administrators cited City Administrative Code Section 9-112, which provides that a member of the city’s uniformed forces may be suspended without pay “while criminal charges are pending.”

When Meringolo challenged the legality of his suspension, the city cited Section 76(4) of the Civil Service Law, which provides that nothing in Section 75 shall be construed to “repeal or modify” any local law. The city claimed it could therefore legally suspend the captain without pay for than the 30-day period, as authorized by Section 75 pursuant to Section 9-112. The Appellate Division, upholding a lower court’s ruling, disagreed.

The court said the problem in the city’s reasoning was that Section 9-112 was not enacted until after Section 76(4) was legislated. Section 76(4) can be thought of as a “grandfather clause” that applies only to local laws enacted before its effective date. This implies that had Section 9-112 been in place prior to the adoption of Section 76(4), it would have been “grandfathered” and probably survived judicial review.

The Appellate Division affirmed the Supreme Court’s order directing the city to restore the captain to its payroll and pay him the back salary due him for the period of his suspension without pay in excess of 30 days.

* Disciplinary grievance procedures set out in a collective bargaining agreement may permit the suspension of an employee without pay pending the resolution of disciplinary charges. Also, Education Law Section 3020-a.2(b) authorizes an educator against whom charges have been filed to be suspended without pay if the individual has entered a guilty plea to or has been convicted of a felony crime involving “the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical or sexual abuse of a minor or student.”
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