Name clearing hearings

Name clearing hearings
Ortiz v Ward, 546 NY2d 624

The Appellate Division, 1st Department, was asked to consider the issue of the right of a probationer discharged after the employer determines that he or she has not satisfactorily completed his or her probationary period to either (1) a "pre-termination hearing" before being discharged or (2) a “name-clearing hearing" following his or her termination.

As to the right to a "pre-termination hearing," the Court said that a probationary employee could be discharged without a hearing so long as the termination was made in good faith. However, it appears that the employer may be called upon to demonstrate that the dismissal was made in good faith by providing some evidence to support its decision to terminate the probationer.

In this case the Appellate Division said that "the evidence in this record supports the conclusion that [Ortiz] was discharged for good reason and, accordingly, no hearing was necessary before terminating [Ortiz'] employment."

Although it is frequently said that a probationer may be terminated from his or her employment at any time after completing the minimum probationary period and before the end of the maximum period of probation without any reason being required to be given for the discharge, if the termination is challenged the employer will probably have to disclose the underlying reason or reasons for the firing. Further, these judgments by the employer will have satisfy the court with respect to their being reasonable and made in good faith.

If, on the other hand, the employer wishes to terminate the probationer before he or she has completed the minimum probationary period required for the position, it may do so only after bringing disciplinary action against the employee and holding a disciplinary hearing or proceeding with a Taylor Law disciplinary arbitration.

In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. Courts in the past have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a name-clearing hearing" was not required because of such intra-agency communications.

Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA

Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA
Butler v NYS Dept. of Law, CA2, [Appeal from summary judgment in favor of the State, see Butler v. New York State Dep’t of Law, 998 F. Supp. 336]

Who is a policy maker? This was one of the issues before the court when former Assistant Attorney General Barbara B. Butler sued then Attorney General Dennis Vacco, contending that she had been unlawfully fired from her position as a Deputy Bureau Chief.

Was Butler was a policy maker and thus subject to dismissal for reasons of political patronage? The Court concluded that Butler was a policy maker.

In determining whether an individual is a policymaker in accordance with the Elrod [427 US at 367] and Branti [445 US 507] standards, the Second Circuit said it considers whether or not the employee:

(1) is exempt from civil service protection;

(2) has some technical competence or expertise;

(3) controls others;

(4) is authorized to speak in the name of policymakers;

(5) is perceived as a policymaker by the public;

(6) influences government programs;

(7) has contact with elected officials; and

(8) is responsive to partisan politics and political leaders.

The Circuit Court said that as Deputy Bureau Chief, Butler was not protected against a political patronage dismissal because her position fell within the policymaker exception to First Amendment protection.

Further, said the court, Butler was not protected under Title VII because her position came within the statutory exception for an appointee on the policymaking level.

Finally, Butler’s ADEA claim failed because the State’s Eleventh Amendment immunity prevented her from suing the State Department of Law for age discrimination under ADEA.

Make-up examination

Make-up examination
Alves v NYC Dept. of Citywide Administrative Services, Supreme Court, New York County, Justice Weissberg, [Not selected for publication in the Official Reports]

The New York City Department of Citywide Administrative Services [DCAS] held the written test for fire lieutenant on Saturday, September 27, 1997. 3,627 firefighters took the test. Those unable to take the test on the 27th could take a special test if the reason why they could not appear is on an enumerated list, which includes religious observances and military duties.

A special examination was taken by two firefighters who were Sabbath observers on Friday, September 26. On October 8, 1997, a make-up examination was administered to thirteen firefighters who were unable to appear on September 27. The questions on all three tests were the same, but the order in which they were presented was different.

On October 7, 1997, DCAS received an anonymous complaint alleging that a copy of the September 27 examination was seen in a Brooklyn firehouse on the evening of September 26 and that copies of the examination were, after September 27, seen in firehouses throughout the City. The October 8 make-up test was held as scheduled.

The City’s Department of Investigation (DOI) investigated the alleged breach in the integrity of the test. It found that that copies of the September 27 examination were widely available between September 27 and October 8; that many of the firefighters who took the October 8 examination admitted that they had seen a copy of the September 27 examination and discussed it with other firefighters before they took their test. DOI also reported that the test scores for the applicants who took the October 8 examination were higher than the scores for those who took the September 27 test. DOI concluded that the integrity of the October 8 make-up examination had been compromised and recommended that the results of that examination be nullified. DOI also concluded that there was no evidence that the integrity of the September 27 examination had been compromised.

Based on these DOI findings and conclusions, DCAS nullified the results of the October 8 examination. Four of the candidates who took the October 8 make-up test sued, contending that never saw a copy of the September 27 examination or discussed the questions on the examination prior to taking the October 8 make-up exam. They also contended that there was no specific finding that any individual petitioner cheated on the examination or otherwise engaged in fraud or deception.

The decision notes that one applicant, John Spillane, who was on military duty on September 27 was appointed as a provisional Fire Lieutenant on the basis of his test score as part of the settlement of a complaint he filed with the United States Department of Labor.

After properly nullifying the October 8 examination, DCAS decided that a second, separate make-up examination was impracticable because of the time and effort necessary to prepare and administer such a test and only 13 candidates were affected. It decided that the make-up for the October 8 examination would be the next scheduled general test for promotion to Lieutenant which, as petitioners point out, will likely not be conducted until at least the year 2001,

Justice Franklin R. Weissberg was not impressed by this and ruled that [i]n view of the fact that the respondents have conceded that the petitioners did not engage in any acts of misconduct, they should offer a viable and fair alternative thereto, such as they did for Mr. Spillane in agreeing to use his scores from the October 8 examination [to qualify him for provisional promotion] until ... the next scheduled examination....

Representation and indemnification of a public employee being sued

Representation and indemnification of a public employee being sued
Ganzman v Hess, App. Div., 273 A.D.2d 352

Defending a public employee who is being sued as a result of some act or omission in the performance of his or her official duties is an important benefit. When Joel Ganzman, the Deputy Public Administrator of the Office of the Public Administrator of Kings County [Office] was named as a defendant in a Federal discrimination suit, [Gryga v Ganzman, Docket No. 97 Civ 3929, USDC, EDNY], he asked Michael D. Hess, Corporation Counsel of the City of New York and the City of New York, to defend him and, if necessary, indemnify him if he was held liable for damages. Hess rejected Ganzman’s request on the ground that he was not a City employee.

Ganzman sued and won a court order by a State Supreme Court Justice requiring Hess, and the City of New York, to defend and indemnify him should the need arise.

Hess appealed. The Appellate Division affirmed the result, but for a different reason. It said that it is undisputed that the expenses of the Office are funded at least in part by the City. Accordingly, said the court, the Office is an agency of the City as defined by General Municipal Law Section 50-k(1)(a). Since Ganzman holds a position in the Office, he is an employee as defined by GML Section 50-k(1)( e). Conclusion: he is entitled to the defense available to any employee under GML Section 50-k(2).

Casual employment of BOCES board member by a school district

Casual employment of BOCES board member by a school district
Informal Opinions of the Attorney General 2007 - 2

According to an Informal Opinion by the Attorney General, Education Law §1950(9) bars a member of a board of a BOCES from being employed as a per diem substitute by a school district that is one of the component school districts served by the BOCES.

For the full text of the opinion, go to:

http://www.oag.state.ny.us/lawyers/opinions/2007/informal/2007-2.pdf

Determining eligibility for an accidental disability retirement allowance

Determining eligibility for an accidental disability retirement allowance
Matter of McCabe v Hevesi, 38 A.D.3d 1035
Matter of Wise v New York State Comptroller, 38 A.D.3d 1032
Matter of Stack v Board of Trustees of the N. Y. City Fire Dept., Art. I-B pension fund, 38 A.D.3d 562

The McCabe, Wise and Stack decisions consider the question of what constitutes an accident for the purpose of qualifying for accidental disability retirement benefits.

The courts have viewed the term “accident” for the purpose of qualifying for an accidental disability retirement allowance to mean a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” and “the precipitating event must emanate from a risk that is not an inherent element of the applicant's regular employment duties.”

1. In the McCabe case, the applicant, a police officer said that he had injured his back when he stumbled in a stairway while searching for a possible intruder. McCabe said that "I started to walk into the basement and caught [my] right foot on short step landing."* However, McCabe also testified that in the performance of his routine duties over the years, he had encountered thousands of stairways, many of which were substandard or defective. In this instance, the court said it found that substantial evidence in the record supports the retirement system’s determination that McCabe was injured by his own misstep, and did not suffer an accident within the meaning of the Retirement and Social Security Law.

2. Wise worked as a senior court officer and his regular job duties entailed, among other things, escorting criminal defendants in the courtroom and physically restraining unruly individuals. A prisoner suffered “unexpected seizure” while being escorted by Wise, who was injured as a result. The Appellate Division said that neither the “unexpected seizure” nor being injured while restraining a “combative defendant” constitute being injured as the result of an accident within the meaning of the Retirement and Social Security Law.

3. In Stack’s case, a somewhat different issue was addressed. Stack’s application for accidental disability retirement and his application of ordinary disability retirement were both rejected. Although the Appellate Division ruled that medical findings supported the determination of the Medical Board that Stack was not entitled to accidental disability retirement benefits, it found that the Board’s determination concerning Stack’s parallel application for ordinary disability retirement benefits was not supported by anything in the record. Accordingly, the court remanded the case to the Medical Board for it to reconsider its determination with respect to Stack’s application for ordinary disability retirement benefits.

For the full text of these decisions, go to:

McCabe v Hevesi
http://nypublicpersonnellawarchives.blogspot.com/2007/03/accidental-disability-retirement-what.html

Matter of Wise v New York State Comptroller
http://nypublicpersonnellawarchives.blogspot.com/2007/03/injury-involving-risk-that-is-inherent.html

Matter of Stack v Board of Trustees of the N. Y. City Fire Dept
http://nypublicpersonnellawarchives.blogspot.com/2007/03/applications-for-disability-retirement.html

* In his workers' compensation claim he reported that he "tripped [and] fell on [a] faulty interior stairway."

Decisions by the Public Employment Relations Board

Decisions by the Public Employment Relations Board
Summaries of rulings

Managerial positions: Incumbents of positions of Campus-wide Academic Deans at a community college are excluded from the faculty negotiating unit in view of their campus-wide responsibility for supervision and formulating policy notwithstanding the fact that other dean positions such as Dean of Students, Dean of Student Development and Dean of Retention Services are currently in the negotiating unit. [Matter of Administrators Association of Erie Community College, 33 PERB 3023]

Change in terms and conditions of employment: The fact that earlier executive orders did not specifically direct employees to report incidents involving criminal activity such as fraud and corruption under threat of disciplinary action for non-compliance now set out in newly promulgated executive orders does not constitute evidence of a change in the terms and conditions of employment subject to mandatory collective bargaining. [Public Employees Federation v State of New York, 33 PERB 3024]

Payroll deductions: Although a letter ruling by the Internal Revenue Service advised the employer that it had the discretion to withhold income tax from the wages of individuals on workers’ compensation leave or receiving benefit pursuant to Section 207-c of the General Municipal Law bi-weekly and reimburse the employee for such deductions annually or elect not to make such deductions, it was an improper practice for the employer to change its procedure from not making such deductions to making bi-weekly deductions without first negotiating the change with the employee organization even where the claim for such benefits was controverted by the employer since the exercise of discretion is generally subject to a duty to bargain. [Matter of Westchester County Correction Officers Benevolent Association, 33 PERB 3025]

Statute of limitation: The statute of limitations begins to run on the date of the injury, here the date when the union first learned of the change in the disciplinary procedure rather than the date on which discipline against an individual was implemented. [Matter of Local 100 TWU, 33 PERB 3026]