Reassignment of personnel
Appeal of Scott Rabler, Commissioner’s Decision No. 15,539
Scott Rabler appealed his transfer* from his position as a High School Principal to an untitled position “as a principal performing various administrative duties.” The Commissioner dismissed his appeal, commenting that school administrators may be transferred within their tenure areas without their consent, In contrast, the Commissioner noted that such personnel may not be transferred outside their tenure areas involuntarily.
According to the decision, Rabler claimed that the school board had established “High School Principal” as a separate tenure area and that he was improperly transferred to another tenure area without his consent. The Commissioner found nothing in the record to substantiate Rabler’s claim. Further, said the Commissioner, Rabler did not establish that “his new duties constitute work in a separate tenure area.” In view of this, Rabler’s representation that he was reassigned outside his tenure area was not persuasive.
Noting that in an appeal to the Commissioner, the appellant has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief, the Commissioner held that Rabler failed to meet these burdens and dismissed his appeal.
In addition, in response to Rabler’s argument that the school superintendent “exceeded his authority in making the transfer without the approval of [the] respondent board,” the Commissioner said that Education Law §§1711 and 2508 authorize a superintendent to transfer personnel from school to school.
The Commissioner also found that the board had given the superintendent “clear and broad” authority to make such personnel changes. This authority, said the Commissioner was set out in the superintendent’s contract with the board by its including provisions granting the superintendent the authority to “organize and reorganize the administrative and supervisory staff, including instructional and non-instructional personnel, in a manner which, in the Superintendent’s judgment, best serves the District.”
In contrast, reassignment of a tenured individual may not be made for disciplinary reasons without complying with the provisions of §3020-a of the Education Law. Here, however, the Commissioner concluded that Rabler’s reassignment had not been made to punish him for alleged misconduct.
The only evidence Rabler presented in support of his claim that his reassignment was disciplinary in nature was an article from the local newspaper asserting that an unnamed sources told the reporter that Rabler was transferred as a result of his misconduct. The Commissioner commented that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”
The Commissioner then said that “on the record before me, I am constrained to dismiss the appeal.”
* Although the decision occasionally uses the term "transfers" to describe the personnel change involved here, Rabler’s change was, in fact a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority-- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise.
For the full text of the decision, go to: http://nypublicpersonnellawarchives.blogspot.com/2007/03/reassignment-of-staff.html
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
January 18, 2011
Criminal conviction and disqualification for public employment
Criminal conviction and disqualification for public employmentRodgers v NYC Human Resources Administration, 546 NYS2d 581
The Rogers case involved the termination of a public employee because he allegedly made false statements on his application for public employment. The decision indicates the potential interrelationship of portions of the Civil Service Law, the Human Rights Law and the Corrections Law.
Rodgers had been appointed as a caseworker in 1985. Two years later he was discharged of the grounds that he did not "admit his conviction record on his employment application."* According to the ruling, Rodgers allegedly made a false statement on his application for employment when he stated that his did not have any criminal record. This alleged false statement was claimed to be the "sole basis of [Rodgers'] termination." Rodgers sued, claiming that his termination was arbitrary, and that his discharge was in violation of Section 296 of the Human Rights Law.
Rodgers had been convicted of two misdemeanors. However, he said that he had provided his employer with actual notice of the existence of his history of conviction of these misdemeanors when he submitted a copy of his Certificate of Relief from Civil
Disabilities together with "the dispositions of his criminal cases along with his application." Although the courts of this State have generally upheld the termination of an employee upon a finding that he or she falsified a material fact in his or her application form, here the Appellate Division, 2nd Department, decided that some fact-finding was required. It remanded the matter to the Supreme Court for a hearing. The opinion indicates that the Court believed that Rodgers "should be enabled to continue to be a valuable member of society, rather than be relegated to a life of crime due to this baseless allegation that he was anything less than forthcoming about his past."
The Appellate Division appeared troubled by the summary dismissal of Rodgers' case by the lower court in this instance. The opinion includes a number of footnotes, including one indicating that "it is beyond dispute that [the City] had actual notice of the subject convictions and permitted [Rodgers] to retain his position after questioning;" and a second stating that the file of investigator originally involved in the case, whom Rodgers claimed told him that "there would be no further problems with his application" despite the inconsistency regarding his criminal record, "had been misplaced."
As to the protections contained in the State's Human Rights Law in cases involving an individual's "criminal history," except with respect to applicants for employment as a police officer or peace officer, Section 296.16 of the Executive Law makes it an unlawful discriminatory practice to inquire about an applicant's "criminal history" except with respect to matters then pending or where the individual was convicted.
Additional protections against discrimination based on a criminal conviction are contained in Section 752 of the Corrections Law. Section 752 prohibits "unfair discrimination" against persons previously convicted of one or more criminal offenses. The individual may not be refused employment unless "there is a direct relationship between one or more of the previous criminal offenses and the ... employment sought; or ... granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."
Another aspect of this case relates to the issuance of a Certificate of Relief from Civil Disabilities [see Section 702, Correction Law]. Rodgers had obtained such a Certificate from a State court judge The granting of such a Certificate by a court removes any bar to employment automatically imposed by law because of conviction of a crime. One exception, however is that such a Certificate does not excuse the impact of the conviction with respect to such an individual's right to retain, or be eligible for, public office. This exception with respect to public office may be important in certain employment situations. Although all public officers are public employees, not all public employees are public officers.**
Other methods available to a person convicted of a crime by which he or she may seek to obtain relief from certain disabilities imposed by law as a result of such conviction is the granting of a Certificate of Good Conduct by the State Board of Parole [Section 703-a, Correction Law] or the granting of an Executive Pardon by the Governor [Article 4, Section 4, State Constitution].
In the Rodgers case, the Appellate Division said that the action taken against Rodgers by the City "seems contrary to the intent of both the legislature which enacted the statutory relief for the furtherance of public interest [Correction Law Section 702(2)(c)] and the courts which saw fit to grant [Rodgers] a second chance at life." This suggests that in a Section 50.4 disqualification proceeding the courts expect the State Department of Civil Service and local commissions and personnel officers to give due weight to the fact that an applicant or an employee may offer a Certificate of Relief from Civil
Disabilities or a Certificate of Good Conduct or an Executive Pardon in opposing his or her proposed disqualification for certification or employment.
* Although the statutory authority for the termination is not specified in the decision, it is assumed that Rodgers was disqualified pursuant to Section 50.4 of the Civil Service Law. Section 50.4 permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three-year statute of limitation on disqualifications pursuant to Section 50.4.
** The Board of Parole is also authorized to issue such Certificates. See Section 703, Correction Law, for the scope and effect of the issuance of such a Certificate by the Board of Parole.
The Rogers case involved the termination of a public employee because he allegedly made false statements on his application for public employment. The decision indicates the potential interrelationship of portions of the Civil Service Law, the Human Rights Law and the Corrections Law.
Rodgers had been appointed as a caseworker in 1985. Two years later he was discharged of the grounds that he did not "admit his conviction record on his employment application."* According to the ruling, Rodgers allegedly made a false statement on his application for employment when he stated that his did not have any criminal record. This alleged false statement was claimed to be the "sole basis of [Rodgers'] termination." Rodgers sued, claiming that his termination was arbitrary, and that his discharge was in violation of Section 296 of the Human Rights Law.
Rodgers had been convicted of two misdemeanors. However, he said that he had provided his employer with actual notice of the existence of his history of conviction of these misdemeanors when he submitted a copy of his Certificate of Relief from Civil
Disabilities together with "the dispositions of his criminal cases along with his application." Although the courts of this State have generally upheld the termination of an employee upon a finding that he or she falsified a material fact in his or her application form, here the Appellate Division, 2nd Department, decided that some fact-finding was required. It remanded the matter to the Supreme Court for a hearing. The opinion indicates that the Court believed that Rodgers "should be enabled to continue to be a valuable member of society, rather than be relegated to a life of crime due to this baseless allegation that he was anything less than forthcoming about his past."
The Appellate Division appeared troubled by the summary dismissal of Rodgers' case by the lower court in this instance. The opinion includes a number of footnotes, including one indicating that "it is beyond dispute that [the City] had actual notice of the subject convictions and permitted [Rodgers] to retain his position after questioning;" and a second stating that the file of investigator originally involved in the case, whom Rodgers claimed told him that "there would be no further problems with his application" despite the inconsistency regarding his criminal record, "had been misplaced."
As to the protections contained in the State's Human Rights Law in cases involving an individual's "criminal history," except with respect to applicants for employment as a police officer or peace officer, Section 296.16 of the Executive Law makes it an unlawful discriminatory practice to inquire about an applicant's "criminal history" except with respect to matters then pending or where the individual was convicted.
Additional protections against discrimination based on a criminal conviction are contained in Section 752 of the Corrections Law. Section 752 prohibits "unfair discrimination" against persons previously convicted of one or more criminal offenses. The individual may not be refused employment unless "there is a direct relationship between one or more of the previous criminal offenses and the ... employment sought; or ... granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."
Another aspect of this case relates to the issuance of a Certificate of Relief from Civil Disabilities [see Section 702, Correction Law]. Rodgers had obtained such a Certificate from a State court judge The granting of such a Certificate by a court removes any bar to employment automatically imposed by law because of conviction of a crime. One exception, however is that such a Certificate does not excuse the impact of the conviction with respect to such an individual's right to retain, or be eligible for, public office. This exception with respect to public office may be important in certain employment situations. Although all public officers are public employees, not all public employees are public officers.**
Other methods available to a person convicted of a crime by which he or she may seek to obtain relief from certain disabilities imposed by law as a result of such conviction is the granting of a Certificate of Good Conduct by the State Board of Parole [Section 703-a, Correction Law] or the granting of an Executive Pardon by the Governor [Article 4, Section 4, State Constitution].
In the Rodgers case, the Appellate Division said that the action taken against Rodgers by the City "seems contrary to the intent of both the legislature which enacted the statutory relief for the furtherance of public interest [Correction Law Section 702(2)(c)] and the courts which saw fit to grant [Rodgers] a second chance at life." This suggests that in a Section 50.4 disqualification proceeding the courts expect the State Department of Civil Service and local commissions and personnel officers to give due weight to the fact that an applicant or an employee may offer a Certificate of Relief from Civil
Disabilities or a Certificate of Good Conduct or an Executive Pardon in opposing his or her proposed disqualification for certification or employment.
* Although the statutory authority for the termination is not specified in the decision, it is assumed that Rodgers was disqualified pursuant to Section 50.4 of the Civil Service Law. Section 50.4 permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three-year statute of limitation on disqualifications pursuant to Section 50.4.
** The Board of Parole is also authorized to issue such Certificates. See Section 703, Correction Law, for the scope and effect of the issuance of such a Certificate by the Board of Parole.
January 14, 2011
Not all “serious medical conditions” are protected by a constitutional right to privacy
Not all “serious medical conditions” are protected by a constitutional right to privacy
Matson v. Board of Education of the School District of City of New York USCA, 2nd Circuit, 09-3773-cv
Dorrit Matson appealed a judgment by a United States District Court for the Southern District of New York judge dismissing her civil rights action brought under 42 U.S.C. §1983. Matson alleged that the School District had violated her right to privacy by publicly disclosing that she suffers from fibromyalgia.*
The District Court held that Matson did not have a constitutionally-protected privacy right with respect to her medical condition. The Circuit Court of Appeals agreed with the lower court’s ruling.
Although Matson contended that fibromyalgia is a “serious medical condition” that falls within the ambit of constitutionally-protected privacy, the Circuit Court, conceding that it was a serious medical condition, explained that “A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right.”
The court distinguished fibromyalgia from other diseases that courts have recognized as having a constitutionally-protected privacy right such as the medical condition of individuals with HIV [see Doe v. City of New York, 15 F.3d 264,] or a “profound psychiatric disorder” [see Powell v. Schriver, 175 F.3d 107].
The Circuit Court commented that case law indicates that “the interest in the privacy of medical information will vary with the condition” and that a constitutional right to privacy for some diseases is greater than for others….”
Also noted was that in considering claims that a constitutional right of privacy attaches to various serious medical conditions, the Second Circuit considers the claim “on a case-by-case basis” and in so doing, the Circuit examines “all the relevant factors that cut both in favor of and against extending privacy protection to such medical conditions.”
NYPPL Comments: The Circuit Court of Appeals' decision notes that a constitutional right to medical privacy may be characterized as a right to “confidentiality,” which “includes the right to protection regarding information about the state of one’s health,” citing Doe, 15 F.3d at 267.
The court then continues: “We reasoned that this is 'especially true with regard to those infected with HIV or living with AIDS, considering the unfortunately unfeeling attitude among many in this society toward those coping with the disease'… In particular, we considered that '[a]n individual revealing that she is HIV seropositive potentially exposes herself [or himself] not to understanding or compassion but to discrimination and intolerance.'”
Assuming, but not conceding, that there is a “constitutionally protected right to privacy” with respect on one’s medical condition, it would seem that such a right would obtain be the condition a hangnail, a heart defect or being seropositive for HIV and that the attitude of society toward those coping with such a medical condition is irrelevant. In other words, the protection obtains regardless of the nature of the medical problem or society’s reaction to those suffering the condition.
* The National Institute of Arthritis and Musculoskeletal and Skin Diseases of the National Institutes of Health, United States Department of Health and Human Services, defines fibromyalgia as “a disorder that causes muscle pain and fatigue.”
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/doc/09-3773_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/hilite/
.
Matson v. Board of Education of the School District of City of New York USCA, 2nd Circuit, 09-3773-cv
Dorrit Matson appealed a judgment by a United States District Court for the Southern District of New York judge dismissing her civil rights action brought under 42 U.S.C. §1983. Matson alleged that the School District had violated her right to privacy by publicly disclosing that she suffers from fibromyalgia.*
The District Court held that Matson did not have a constitutionally-protected privacy right with respect to her medical condition. The Circuit Court of Appeals agreed with the lower court’s ruling.
Although Matson contended that fibromyalgia is a “serious medical condition” that falls within the ambit of constitutionally-protected privacy, the Circuit Court, conceding that it was a serious medical condition, explained that “A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right.”
The court distinguished fibromyalgia from other diseases that courts have recognized as having a constitutionally-protected privacy right such as the medical condition of individuals with HIV [see Doe v. City of New York, 15 F.3d 264,] or a “profound psychiatric disorder” [see Powell v. Schriver, 175 F.3d 107].
The Circuit Court commented that case law indicates that “the interest in the privacy of medical information will vary with the condition” and that a constitutional right to privacy for some diseases is greater than for others….”
Also noted was that in considering claims that a constitutional right of privacy attaches to various serious medical conditions, the Second Circuit considers the claim “on a case-by-case basis” and in so doing, the Circuit examines “all the relevant factors that cut both in favor of and against extending privacy protection to such medical conditions.”
NYPPL Comments: The Circuit Court of Appeals' decision notes that a constitutional right to medical privacy may be characterized as a right to “confidentiality,” which “includes the right to protection regarding information about the state of one’s health,” citing Doe, 15 F.3d at 267.
The court then continues: “We reasoned that this is 'especially true with regard to those infected with HIV or living with AIDS, considering the unfortunately unfeeling attitude among many in this society toward those coping with the disease'… In particular, we considered that '[a]n individual revealing that she is HIV seropositive potentially exposes herself [or himself] not to understanding or compassion but to discrimination and intolerance.'”
Assuming, but not conceding, that there is a “constitutionally protected right to privacy” with respect on one’s medical condition, it would seem that such a right would obtain be the condition a hangnail, a heart defect or being seropositive for HIV and that the attitude of society toward those coping with such a medical condition is irrelevant. In other words, the protection obtains regardless of the nature of the medical problem or society’s reaction to those suffering the condition.
* The National Institute of Arthritis and Musculoskeletal and Skin Diseases of the National Institutes of Health, United States Department of Health and Human Services, defines fibromyalgia as “a disorder that causes muscle pain and fatigue.”
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/doc/09-3773_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/hilite/
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Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias
Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
The 7th Circuit recently held that the lower court properly granted judgment as a matter of law on the age discrimination claim of a plant employee who was fired after several heated disputes with his coworkers.Runyon v Applied Extrusion Techs, Inc, ____F.3d____(7th Cir. August 30, 2010).
Although a younger coworker who was involved in an altercation with the employee was not fired, the Seventh agreed with the district court that there was no evidence the employer’s action was motivated by age.
Mitchell H. Rubinstein
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
The 7th Circuit recently held that the lower court properly granted judgment as a matter of law on the age discrimination claim of a plant employee who was fired after several heated disputes with his coworkers.Runyon v Applied Extrusion Techs, Inc, ____F.3d____(7th Cir. August 30, 2010).
Although a younger coworker who was involved in an altercation with the employee was not fired, the Seventh agreed with the district court that there was no evidence the employer’s action was motivated by age.
Mitchell H. Rubinstein
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.
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.
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....
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....
January 13, 2011
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).
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
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."
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."
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