Free speech does not protect employee making a racist statement

Free speech does not protect employee making a racist statementPereira v Commissioner of Social Services (SJC-08218), the Supreme Judicial Court, Mass., 432 Mass. 251

The First Amendment’s guarantee of free speech did not shield a twelve-year public employee from dismissal for telling a racist joke at a political gathering.

Linda M. Pereira, a social worker, was terminated after making remarks that she, herself, described as a stupid, racist, and unthinking joke.

While citing a line of cases that included Pickering v Board of Education, 31 U.S. 563, and Connick v Meyers, 461 U.S. 138, 1983, the Massachusetts high court said that although a public employee’s speech may be entitled to constitutional protection if the employee speaks out on a matter of public concern, and his or her interests as a citizen are not outweighed by the state’s interest in performing a public service, Pereira’s speech was not so protected.

Why not? Because, the court explained, while Pereira spoke at a political event, she conceded that her off-the-cuff ‘joke’ was not intended to convey any message and therefore did not address any matter of public concern. Further, the court noted that although the political affair was not a public gathering, Pereira’s remark was widely reported in the press.

Executive Order #3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity

Executive Order 8-3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity

Among his first acts as Governor, Governor Andrew M. Cuomo signed an Executive Order, Executive Order 8-3, requiring all Executive Chamber staff and other top state officials to participate in ethics training offered by the Commission on Public Integrity. Individuals covered by EO 8-3 includes agency commissioners and their respective counsels and ethics officers.

The training, which will focus on the rules about serving in government. will be available beginning no later than January 31st and must be completed within sixty days.

"Honor and integrity will be a hallmark of this administration, and I am confident that we have assembled a team that reflects that commitment," Governor Cuomo said. "Nonetheless, it is imperative that Chamber staff and other high ranking government officials be versed in the ethics rules and regulations that apply to them. Top government employees should have no questions, no gray areas, and no possibility of confusion regarding what is proper and what is not."

The Executive Order also requires officials to participate in this ethics training every two years.

The text of the Executive Order follows:


EXECUTIVE ORDER -- No. 3 ETHICS TRAINING

WHEREAS, all New York State taxpayers and residents and all those who depend on New York State government services have the right to expect that government programs will be administered and managed with the highest degree of professionalism;

WHEREAS, it is the obligation of every New York State officer and employee to pursue a course of conduct that will not engender public concern as to whether the individual is engaged in acts that may violate his or her public trust;

WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies are subject to certain ethical statutes and rules, including but not limited to the New York State Code of Ethics, statutory restrictions on business and professional activities and opinions issued by the New York State Commission on Public Integrity;

WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies play an important role in ensuring ethics compliance by all State officers and employees;

WHEREAS, New York State has a responsibility to ensure that its officers and employees are versed in the ethical statutes and rules that apply to them; and

WHEREAS, it is appropriate to take steps to ensure that employees and officers maintain the highest ethical and professional standards;

NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the laws of the State of New York, do hereby order as follows:

A. Definitions

1. “Agency” shall mean any state agency, department, office, board, bureau, division, committee, council or office.

2. “Covered Employees” shall mean all officers and employees working in the Executive Chamber in the office of the Governor, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies.

3. “Officers and employees” shall have the meaning given to “state officer or employee” in Section 73 of the Public Officers Law.

B. Ethics Training

1. Every Covered Employee shall participate in an ethics training within sixty days of when such training is prepared and available. The ethics training program will be prepared and available no later than January 31, 2011.

2. New Covered Employees shall participate in such ethics training within sixty days of the later of commencing their employment or when such training is prepared and available.

3. Such training shall include a discussion of the provisions of Sections 73, 73-A, 74 and 78 of the Public Officers Law and Sections 75-b and 107 of the Civil Service Law.

4. Every Covered Employee shall participate in an ethics training every two years following his or her initial training session pursuant to this order.

5. Covered Employees shall submit a signed statement certifying their participation in each training session pursuant to this order, which statements shall be placed in their personnel files.

6. The Executive Chamber shall coordinate with the ethics officers of state agencies, and with the Commission on Public Integrity, to establish regular training sessions sufficient to allow affected individuals to comply with this order.

C. Penalties

Any violation of this order may result in dismissal or other appropriate sanction as determined by the appointing officer of the individual committing such violation.

Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled

Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled
Matter of Neeley v Town of Colonie, 2010 NY Slip Op 09606, Appellate Division, Third Department

William Neeley was appointed to the position of Public Works Operation Supervisor in 1998, while Thomas Romano was appointed to the position of Highway Maintenance Supervisor in 2005.

Both Neeley and Romano worked for the Town of Colonie Department of Public Works and both were suspended from their respective positions in July 2008 pending the resolution of certain disciplinary charges that had been filed against them.

Found guilty of misconduct, the penalty imposed on both Neeley and Romano was demotion in title and grade.

Neeley and Romano appealed to the Town's personnel officer and ultimately their respective demotions were rescinded and a new penalty - suspension without pay for 30 days - was imposed on each.

Although Neeley and Romano were reinstated to their titles, grades and salaries, they appealed contending that certain of their former duties had been curtailed and, therefore, they had been subject to a de facto demotion.

Supreme Court dismissed their Article 78 petition as moot and the Appellate Division affirmed the lower court’s action.

The Appellate Division said that as it was “undisputed” that both Neeley and Romano had been restored to their original titles, grades and salaries in compliance with the decision issued by the Town's personnel officer, they had received “all the relief to which they were entitled.”

Accordingly, said the court, Supreme Court’s dismissal of their petition as moot was correct.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09606.htm

A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years

A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years
Matter of Sultana v New York City Dept. of Educ., 2010 NY Slip Op 09598, Appellate Division, Third Department

It is “black letter law” that "A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment"

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.

Chand Sultana, a per diem substitute teacher employed by the New York City Department of Education, worked a total of 138 days during the school year. At the end of the school year Sultana received a letter from the Department “assuring her of continued employment” during the upcoming school year. The letter indicated the amount of work available and that the economic terms and conditions of employment were to be substantially the same as in the school year then ending.

Sultana applied for unemployment insurance benefits for the intervening summer but Unemployment Insurance Appeal Board determined that she was ineligible to receive them because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).

The Appellate Division rejected Sultana’s appeal challenging the Board’s determination.
The court explained that the record indicated that a Department of Education representative testified that Sultana would have as many opportunities to work during the succeeding school year as she had the prior year inasmuch as more schools were to be opened, resulting in greater demand for substitute teachers and there had been no reduction in the budget. Such testimony, together with the letter sent to Sultana by the Department, constituted substantial evidence supporting the Unemployment Insurance Board's determination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09598.htm