Unemployment Insurance Appeals Board determines if there is disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Matter of Green v Village of Hempstead, 2011 NY Slip Op 00137, Appellate Division, Third Department
The Village of Hempstead dismissed Deputy Village Attorney Donna M. Green from her position for alleged misconduct. When the Unemployment Insurance Appeals Board approved unemployment insurance benefits for Green, the Village appealed.
Hempstead argued that that the credible evidence established that Green was discharged for conducting her private legal practice on “Village time,” and that her discharge was not, as she claimed, merely politically motivated.
The Appellate Division said that whether an employee was terminated for misconduct is a factual question for the Unemployment Insurance Appeals Board to resolve. Thus, said the court, “its resolution of this issue will not be disturbed if supported by substantial evidence, citing Matter of Ponce, 75 AD3d 1041.
According to the decision, Hempstead said that it had given three memoranda to Green concerning her performance of her duties but Green had testified that she had received only one of these three documents prior to her termination -- and she refuted the claims stated within the documents.
Further, the court said that two witnesses supporting Green’s allegation that she and other members of the Village’s legal staff were discharged for political reasons following the election of a new mayor, and the employer did not offer evidence refuting this testimony.
As to the merits of Hempstead’s opposition to the Board’s determination, the Appellate Division, after reviewing the conflicting evidence, noted that Green's occasional receipt of private legal mail at her Village office, “standing alone, did not conclusively establish that she conducted her private practice on the employer's time.”
The Appellate Division found that “there was no other evidence of wrongdoing [on the part of Green]” and her tardiness on one occasion “does not necessarily constitute disqualifying misconduct … even if [Green’s] explanation was inaccurate. ” citing Matter of Massucci, 8 AD3d 737.
Thus, concluded the court, substantial evidence supports the Board's conclusion that [1] Green had not engaged in disqualifying misconduct and [2] she was entitled to unemployment insurance benefits.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00137.htm
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 21, 2011
Failure to meet contract deadlines does not void disciplinary action
Failure to meet contract deadlines does not void disciplinary action
Covino v Kane, 273 AD2d 380, Motion for leave to appeal denied, 96 NY2d 701
The significant issue raised in the Covino case concerns the impact of the employer’s failing to meet a contract-specified deadline in issuing a disciplinary determination.
A member of the Nassau County Police Department, Craig S. Covino, was found guilty of violating seven departmental rules and regulations and a disciplinary penalty was imposed.
Covino objected, complaining that the Police Commissioner, issued his decision late in violation of Section 6.3-1 of the collective bargaining agreement between the Police Department and the Covino’s union. This failure to make a timely determination as to Covino’s guilt and the penalty to be imposed as punishment, Covino argued, required that the disciplinary action be rescinded. Section 6.3-1 of the collective bargaining agreement provided that:
A determination as to guilt or innocence and punishment, if any, shall be made within sixty (60) days after the hearing is concluded unless an employee or the [Superior Officers Association] consents to a longer period.
According to the decision, Covino was served with charges and specifications and his disciplinary hearing was concluded in September 1998.
The hearing officer’s report, dated November 20, 1998, recommended that Covino be found guilty of all of the charges preferred against him. On January 4, 1999 the Commissioner concurred with the findings of the hearing officer as to Covino’s being guilty of the charges filed against him and imposed penalties based upon those findings and recommendations.
Should the Commissioner’s determination be overturned because he failed to meet the 60-day deadline for issuing a decision as required by the agreement?
No! said the Supreme Court, Nassau County, the Commissioner’s decision should not be vacated or rescinded and dismissed Covino’s petition. The court ruled that in the absence of specific language barring further action, an employer’s failure to act within the time frame contemplated in a collective bargaining agreement does not preclude further action by the employer.
The Appellate Division, Second Department, agreed.
In affirming the lower court’s ruling, the Appellate Division pointed out that in interpreting similar contractual provisions, the Second Department has repeatedly held that, in the absence of prejudice, the failure to timely render a determination pursuant to the terms of the parties’ contract does not warrant vacatur of the determination, citing Correctional Unit Employees v State of New York Department of Correctional Services, 236 AD2d 546.
The decision by the Appellate Division suggests that the Supreme Court decided, or assumed, that the 60-day period for the Commissioner to issue a timely decision in accordance with relevant contract provision started when the hearing was concluded in September 1999. If, on the other hand, the disciplinary hearing is not deemed concluded until the hearing officer issued his or her determination and recommendations, this 60-day period would begin to run not before the date the hearing officer issued his or her report -- November 20, 1998.
Another case contract time limits: City of Newburgh v DeGidio, 273 A.D.2d 468. In this Article 75 action to stay arbitration, the Appellate Division to the parties to proceed to arbitration to resolve the issue. Reversing the Supreme Court’s ruling to the contrary, the Appellate Division, citing County of Rockland v Primiano Construction Co., 51 NY2d 1, held:
Where the collective bargaining agreement does not contain an express provision making compliance with the time limitations set forth in the grievance procedure a condition precedent to binding arbitration, the issues related to compliance with the time limitations set forth in the grievance procedure are matters of procedural arbitrability for the arbitrator to decide.
In other words, the arbitrator is to decide whether if the demand for arbitration was valid under the terms of the agreement.
___________________
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. a 1020 page e-book is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
Covino v Kane, 273 AD2d 380, Motion for leave to appeal denied, 96 NY2d 701
The significant issue raised in the Covino case concerns the impact of the employer’s failing to meet a contract-specified deadline in issuing a disciplinary determination.
A member of the Nassau County Police Department, Craig S. Covino, was found guilty of violating seven departmental rules and regulations and a disciplinary penalty was imposed.
Covino objected, complaining that the Police Commissioner, issued his decision late in violation of Section 6.3-1 of the collective bargaining agreement between the Police Department and the Covino’s union. This failure to make a timely determination as to Covino’s guilt and the penalty to be imposed as punishment, Covino argued, required that the disciplinary action be rescinded. Section 6.3-1 of the collective bargaining agreement provided that:
A determination as to guilt or innocence and punishment, if any, shall be made within sixty (60) days after the hearing is concluded unless an employee or the [Superior Officers Association] consents to a longer period.
According to the decision, Covino was served with charges and specifications and his disciplinary hearing was concluded in September 1998.
The hearing officer’s report, dated November 20, 1998, recommended that Covino be found guilty of all of the charges preferred against him. On January 4, 1999 the Commissioner concurred with the findings of the hearing officer as to Covino’s being guilty of the charges filed against him and imposed penalties based upon those findings and recommendations.
Should the Commissioner’s determination be overturned because he failed to meet the 60-day deadline for issuing a decision as required by the agreement?
No! said the Supreme Court, Nassau County, the Commissioner’s decision should not be vacated or rescinded and dismissed Covino’s petition. The court ruled that in the absence of specific language barring further action, an employer’s failure to act within the time frame contemplated in a collective bargaining agreement does not preclude further action by the employer.
The Appellate Division, Second Department, agreed.
In affirming the lower court’s ruling, the Appellate Division pointed out that in interpreting similar contractual provisions, the Second Department has repeatedly held that, in the absence of prejudice, the failure to timely render a determination pursuant to the terms of the parties’ contract does not warrant vacatur of the determination, citing Correctional Unit Employees v State of New York Department of Correctional Services, 236 AD2d 546.
The decision by the Appellate Division suggests that the Supreme Court decided, or assumed, that the 60-day period for the Commissioner to issue a timely decision in accordance with relevant contract provision started when the hearing was concluded in September 1999. If, on the other hand, the disciplinary hearing is not deemed concluded until the hearing officer issued his or her determination and recommendations, this 60-day period would begin to run not before the date the hearing officer issued his or her report -- November 20, 1998.
Another case contract time limits: City of Newburgh v DeGidio, 273 A.D.2d 468. In this Article 75 action to stay arbitration, the Appellate Division to the parties to proceed to arbitration to resolve the issue. Reversing the Supreme Court’s ruling to the contrary, the Appellate Division, citing County of Rockland v Primiano Construction Co., 51 NY2d 1, held:
Where the collective bargaining agreement does not contain an express provision making compliance with the time limitations set forth in the grievance procedure a condition precedent to binding arbitration, the issues related to compliance with the time limitations set forth in the grievance procedure are matters of procedural arbitrability for the arbitrator to decide.
In other words, the arbitrator is to decide whether if the demand for arbitration was valid under the terms of the agreement.
___________________
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. a 1020 page e-book is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
Transfer to a different retirement plan
Transfer to a different retirement plan
Overton v Southampton, 273 AD2d 242; Motion for leave to appeal denied, 95 NY2d 764
In the Overton case, the Appellate Division, Second Department, ruled that if a member of the State Employees’ Retirement System transfers from one plan to a different plan, he or she is subject to the relevant provisions of law concerning the plan into which he or she has transferred.
The Town of Southampton adopted a resolution on November 23, 1999. This resolution terminated the employment of its Chief of Police, James P. Overton, effective January 7, 1999, Overton’s 55th birthday. The Town’s action was based on the retirement plan to which Overton had previously transferred -- the Section 384-d plan.
According to the decision, although Overton was initially enrolled in a 25-year retirement plan with a mandatory retirement age of 70, he later elected to transfer into an optional 20-year retirement plan when the optional plan became available to the Town’s police officers pursuant to Section 384-d of the Retirement and Social Security Law.
Although Section 384-d requires members to retire no later than age 62, in 1971 a new subdivision, subdivision (m), was added to Section 384-d. Subdivision m applied only to Southampton law enforcement personnel and required police officers in the Section 384-d plan to retire at age 55.
Subdivision (m) provides that [n]otwithstanding any inconsistent provision of law, if the town board of the town of Southampton elects to make the benefits of this section available to the members of its police department, each member of such department shall be separated from service upon completion of twenty years of service, provided, however, that the town board may permit a member to continue in service on an annual basis after the completion of twenty years of service, but in no event shall such annual service be continued after a member has attained age fifty-five.
Approaching age 55, Overton decided he wanted to withdraw from the Section 384-d 20-year plan and transfer back into the 25-year plan so that he could continue his employment with the Town after reaching age 55. The Town, however, adopted a resolution separating him from service effective January 7, 2000, his 55th birthday.
Another factor in the litigation: The State Comptroller had issued an opinion indicating that Section 384-d(m) requires any Town police officer who ever enrolled in the 20-year plan to separate from service at age 55, regardless of whether the officer has subsequently withdrawn from the plan.*
Overton sued the Town and the Comptroller in an effort to annul the Town’s action and be approved for transfer into another plan. Unsuccessful in Supreme Court, he appealed. The Appellate Division reversed the lower court’s ruling, holding that the resolution in question adopted by the Town of Southampton on November 23, 1999, is annulled.
The rationale for the court’s annulling the Town’s resolution:
Section 384-d(b) of the Retirement and Social Security Law allows a member who elects to participate in a 20-year plan to withdraw from the plan and enroll in another retirement plan. According to the decision, the plain meaning of the statute, read as a whole, is that a Town police officer may withdraw from the 20-year plan and enroll in another available retirement plan.
The court rejected the Town’s arguments in support of its action, commenting that subdivision (m) does not require a member who changes plans to nevertheless retire at age 55.
The court said that nothing in the Retirement and Social Security Law suggests that Overton was required to retire at age 55 upon his transfer to another plan with a higher mandatory retirement age.
The bottom line: the court decided that Overton has the right to withdraw from the 20-year retirement plan and transfer to the 25-year retirement plan available to Town police officers with a mandatory retirement age of 70.
* The Comptroller was severed from the lawsuit, having earlier agreed that if the Town’s resolution is annulled, the Retirement System would not prevent Overton from continuing in service and obtaining credit for such service for “retirement allowance” purposes.
Overton v Southampton, 273 AD2d 242; Motion for leave to appeal denied, 95 NY2d 764
In the Overton case, the Appellate Division, Second Department, ruled that if a member of the State Employees’ Retirement System transfers from one plan to a different plan, he or she is subject to the relevant provisions of law concerning the plan into which he or she has transferred.
The Town of Southampton adopted a resolution on November 23, 1999. This resolution terminated the employment of its Chief of Police, James P. Overton, effective January 7, 1999, Overton’s 55th birthday. The Town’s action was based on the retirement plan to which Overton had previously transferred -- the Section 384-d plan.
According to the decision, although Overton was initially enrolled in a 25-year retirement plan with a mandatory retirement age of 70, he later elected to transfer into an optional 20-year retirement plan when the optional plan became available to the Town’s police officers pursuant to Section 384-d of the Retirement and Social Security Law.
Although Section 384-d requires members to retire no later than age 62, in 1971 a new subdivision, subdivision (m), was added to Section 384-d. Subdivision m applied only to Southampton law enforcement personnel and required police officers in the Section 384-d plan to retire at age 55.
Subdivision (m) provides that [n]otwithstanding any inconsistent provision of law, if the town board of the town of Southampton elects to make the benefits of this section available to the members of its police department, each member of such department shall be separated from service upon completion of twenty years of service, provided, however, that the town board may permit a member to continue in service on an annual basis after the completion of twenty years of service, but in no event shall such annual service be continued after a member has attained age fifty-five.
Approaching age 55, Overton decided he wanted to withdraw from the Section 384-d 20-year plan and transfer back into the 25-year plan so that he could continue his employment with the Town after reaching age 55. The Town, however, adopted a resolution separating him from service effective January 7, 2000, his 55th birthday.
Another factor in the litigation: The State Comptroller had issued an opinion indicating that Section 384-d(m) requires any Town police officer who ever enrolled in the 20-year plan to separate from service at age 55, regardless of whether the officer has subsequently withdrawn from the plan.*
Overton sued the Town and the Comptroller in an effort to annul the Town’s action and be approved for transfer into another plan. Unsuccessful in Supreme Court, he appealed. The Appellate Division reversed the lower court’s ruling, holding that the resolution in question adopted by the Town of Southampton on November 23, 1999, is annulled.
The rationale for the court’s annulling the Town’s resolution:
Section 384-d(b) of the Retirement and Social Security Law allows a member who elects to participate in a 20-year plan to withdraw from the plan and enroll in another retirement plan. According to the decision, the plain meaning of the statute, read as a whole, is that a Town police officer may withdraw from the 20-year plan and enroll in another available retirement plan.
The court rejected the Town’s arguments in support of its action, commenting that subdivision (m) does not require a member who changes plans to nevertheless retire at age 55.
The court said that nothing in the Retirement and Social Security Law suggests that Overton was required to retire at age 55 upon his transfer to another plan with a higher mandatory retirement age.
The bottom line: the court decided that Overton has the right to withdraw from the 20-year retirement plan and transfer to the 25-year retirement plan available to Town police officers with a mandatory retirement age of 70.
* The Comptroller was severed from the lawsuit, having earlier agreed that if the Town’s resolution is annulled, the Retirement System would not prevent Overton from continuing in service and obtaining credit for such service for “retirement allowance” purposes.
Challenging administrative rulings
Challenging administrative rulings
Malitz v NYC Transit Authority, NYS Supreme Court, Justice Stallman [Not selected for publication in the Official Reports]
The Malitz case points out the differences in the standards that are used by the courts when reviewing different types of agency or administrative determinations.
In cases involving challenges to an agency’s administrative determination made without having held an administrative hearing, the test applied is whether or not the agency’s determination can be supported on any reasonable basis. Stated another way: was the administrative determination arbitrary or capricious?*
In contrast, Justice Michael D. Stallman pointed out that when a court considers a challenge to an administrative determination resulting from a quasi-judicial proceeding, i.e., an administrative hearing, it applies the substantial evidence test. The substantial evidence standard arises only when there has been a quasi-judicial hearing, and evidence taken pursuant to law, said Justice Stallman, citing Colton v Berman, 21 NY2d 322.
The issue before the court in the Malitz case: which was the appropriate test to be applied in addressing Malitz’s Article 78 petition?
The case arose as a result of the New York City Transit Authority [NYCTA] filing disciplinary charges against one of its railroad clerks, Bryan Malitz. NYCTA alleged that Malitz failed to properly relieve another railroad clerk, Holmes.
According to the decision, on August 1, 1997 Holmes had incorrectly tallied fare cards resulting in a $2,100 shortage. Malitz did not detect this error and carried over the same incorrect information during his shift. Malitz’s relief, Bayo, repeated Holmes’ and Malitz’s error. Holmes then relieved Bayo without detecting the error. Finally the $2,100 error was discovered by Malitz when he relieved Holmes for a second time.
The Authority terminated Malitz. The grievance arbitration panel upheld the termination, ruling that Malitz did not make a ‘proper relief’ [and] this failure did warrant dismissal since the per se procedural violation went to the heart of a railroad clerk’s responsibilities and was a serious failure of duty. Neither Holmes nor Bayo were terminated as a result of the error that Holmes made on August 1.
Malitz then filed a complaint with the New York State Division of Human Rights [NYSDHR] contending that he had been unlawfully terminated from his position due to his sleep apnea disability in violation of the New York State Human Rights Law [Section 296, Executive Law]. He also asserted that the charges leading to his dismissal were false. NYSDHR dismissed his discrimination complaint, finding that there was a lack of probable cause.
NYSDHR decided that Malitz had been terminated because of performance infractions unrelated to his sleep apnea. In reviewing Malitz’s complaint, the Division took into consideration various performance infractions set out in Malitz’s personnel record. These other infractions included episodes involving insubordination, arguing with customers, closing his window, refusing to sell tokens, exposing himself while on duty and sleeping on duty.
NYSDHR decided that NYCTA’s decision to penalize but not terminate Holmes or Boyd did not support a claim that NYCTA’s termination of Malitz constituted unlawful discrimination. NYSDHR noted that Holmes’ and Boyd’s employment dossiers, unlike Malitz’s, did not contain any reports of procedural violations prior to the August 1, 1997 incident.
Malitz appealed NYSDHR’s determination. His Article 78 petition alleged that NYSDHR’s dismissal of his complaint was not supported by substantial evidence. The court rejected this theory, indicating that Malitz’s reliance on the substantial evidence test in his case was misplaced.
The decision states that NYSDHR has the discretion to (1) determine how an investigation will be conducted and (2) to dismiss a complaint for lack of probable cause without a hearing where appropriate. As there was no hearing held concerning Malitz’s complaint, the appropriate test to be applied was whether the Division’s determination was rational, not whether it was supported by substantial evidence.
Justice Stallman ruled that the division’s action satisfied the rational test. He said that NYSDHR dismissed petitioner’s discrimination claim for lack of probable cause after a thorough investigation and review of all factors, including his sleep apnea diagnosis. Under the circumstances this, the court concluded, was reasonable.
Clearly, since Malitz’s complaint was dismissed for lack of probable cause and a quasi-judicial hearing was not held by the NYSDHR, the substantial evidence test was not applicable. As to his challenge to the administrative dismissal of his complaint, the court said that because he did not present any evidence that NYSDHR’s dismissal of his complaint was arbitrary or capricious, his petition had to be dismissed.
* The arbitrary and capricious standard involves a review of whether a particular administrative action is justified. In effect, the rationality of the decision is reviewed under this standard.
Malitz v NYC Transit Authority, NYS Supreme Court, Justice Stallman [Not selected for publication in the Official Reports]
The Malitz case points out the differences in the standards that are used by the courts when reviewing different types of agency or administrative determinations.
In cases involving challenges to an agency’s administrative determination made without having held an administrative hearing, the test applied is whether or not the agency’s determination can be supported on any reasonable basis. Stated another way: was the administrative determination arbitrary or capricious?*
In contrast, Justice Michael D. Stallman pointed out that when a court considers a challenge to an administrative determination resulting from a quasi-judicial proceeding, i.e., an administrative hearing, it applies the substantial evidence test. The substantial evidence standard arises only when there has been a quasi-judicial hearing, and evidence taken pursuant to law, said Justice Stallman, citing Colton v Berman, 21 NY2d 322.
The issue before the court in the Malitz case: which was the appropriate test to be applied in addressing Malitz’s Article 78 petition?
The case arose as a result of the New York City Transit Authority [NYCTA] filing disciplinary charges against one of its railroad clerks, Bryan Malitz. NYCTA alleged that Malitz failed to properly relieve another railroad clerk, Holmes.
According to the decision, on August 1, 1997 Holmes had incorrectly tallied fare cards resulting in a $2,100 shortage. Malitz did not detect this error and carried over the same incorrect information during his shift. Malitz’s relief, Bayo, repeated Holmes’ and Malitz’s error. Holmes then relieved Bayo without detecting the error. Finally the $2,100 error was discovered by Malitz when he relieved Holmes for a second time.
The Authority terminated Malitz. The grievance arbitration panel upheld the termination, ruling that Malitz did not make a ‘proper relief’ [and] this failure did warrant dismissal since the per se procedural violation went to the heart of a railroad clerk’s responsibilities and was a serious failure of duty. Neither Holmes nor Bayo were terminated as a result of the error that Holmes made on August 1.
Malitz then filed a complaint with the New York State Division of Human Rights [NYSDHR] contending that he had been unlawfully terminated from his position due to his sleep apnea disability in violation of the New York State Human Rights Law [Section 296, Executive Law]. He also asserted that the charges leading to his dismissal were false. NYSDHR dismissed his discrimination complaint, finding that there was a lack of probable cause.
NYSDHR decided that Malitz had been terminated because of performance infractions unrelated to his sleep apnea. In reviewing Malitz’s complaint, the Division took into consideration various performance infractions set out in Malitz’s personnel record. These other infractions included episodes involving insubordination, arguing with customers, closing his window, refusing to sell tokens, exposing himself while on duty and sleeping on duty.
NYSDHR decided that NYCTA’s decision to penalize but not terminate Holmes or Boyd did not support a claim that NYCTA’s termination of Malitz constituted unlawful discrimination. NYSDHR noted that Holmes’ and Boyd’s employment dossiers, unlike Malitz’s, did not contain any reports of procedural violations prior to the August 1, 1997 incident.
Malitz appealed NYSDHR’s determination. His Article 78 petition alleged that NYSDHR’s dismissal of his complaint was not supported by substantial evidence. The court rejected this theory, indicating that Malitz’s reliance on the substantial evidence test in his case was misplaced.
The decision states that NYSDHR has the discretion to (1) determine how an investigation will be conducted and (2) to dismiss a complaint for lack of probable cause without a hearing where appropriate. As there was no hearing held concerning Malitz’s complaint, the appropriate test to be applied was whether the Division’s determination was rational, not whether it was supported by substantial evidence.
Justice Stallman ruled that the division’s action satisfied the rational test. He said that NYSDHR dismissed petitioner’s discrimination claim for lack of probable cause after a thorough investigation and review of all factors, including his sleep apnea diagnosis. Under the circumstances this, the court concluded, was reasonable.
Clearly, since Malitz’s complaint was dismissed for lack of probable cause and a quasi-judicial hearing was not held by the NYSDHR, the substantial evidence test was not applicable. As to his challenge to the administrative dismissal of his complaint, the court said that because he did not present any evidence that NYSDHR’s dismissal of his complaint was arbitrary or capricious, his petition had to be dismissed.
* The arbitrary and capricious standard involves a review of whether a particular administrative action is justified. In effect, the rationality of the decision is reviewed under this standard.
January 20, 2011
State Comptroller finds that some school districts paid for health benefits for deceased or ineligible retirees and dependents
State Comptroller finds that some school districts paid for health benefits for deceased or ineligible retirees and dependents
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli reports that his auditors found that ten school districts in New York State paid nearly $239,000 for health insurance benefits for deceased or ineligible retirees. DiNapoli also said $117,556 had been recovered.
The audit, which covered July 1, 2008 to May 31, 2010, examined school districts with a high percentage of retirees who do not contribute toward the cost of their health insurance.
The auditors found that only two districts of those audited – Somers Central School District and Yonkers City School District – had written guidelines to ensure the accuracy and appropriateness of health insurance payments.
DiNapoli’s audit recommended that school district officials:
1. Develop written policies and procedures to periodically monitor the status of all retirees, their spouses and dependents receiving health insurance coverage; and
2. Consider establishing systems to maintain adequate information on retirees and their dependents, including social security numbers and emergency contact information, which can be used to ensure eligibility for health insurance coverage.
The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/swr/retireehealth/global.pdf
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli reports that his auditors found that ten school districts in New York State paid nearly $239,000 for health insurance benefits for deceased or ineligible retirees. DiNapoli also said $117,556 had been recovered.
The audit, which covered July 1, 2008 to May 31, 2010, examined school districts with a high percentage of retirees who do not contribute toward the cost of their health insurance.
The auditors found that only two districts of those audited – Somers Central School District and Yonkers City School District – had written guidelines to ensure the accuracy and appropriateness of health insurance payments.
DiNapoli’s audit recommended that school district officials:
1. Develop written policies and procedures to periodically monitor the status of all retirees, their spouses and dependents receiving health insurance coverage; and
2. Consider establishing systems to maintain adequate information on retirees and their dependents, including social security numbers and emergency contact information, which can be used to ensure eligibility for health insurance coverage.
The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/swr/retireehealth/global.pdf
Use of leave credits and the FMLA
Use of leave credits and the FMLA
Repa v. Roadway Express, Inc. USCA, 7th Circuit, 477 F.3d 938
Alice M. Repa complained that her employer, Roadway Express, Inc., required her to use her sick and vacation leave accruals while she was on FMLA leave although she was simultaneously receiving short-term disability benefit – i.e., paid leave - under Roadway’s disability plan.
The Circuit Court sustained a federal district court’s ruling that Roadway had violated the FMLA by requiring Repa to charge her FMLA-absence to her leave accruals. The lower court held that absence from work under a temporary disability benefit plan is not subject to a provision in the FMLA that allows employers to require employees to substitute paid leave for unpaid FMLA leave.
The decision states that “the purpose of the FMLA is, in part, “to entitle employees to take reasonable leave for medical reasons . . . in a manner that accommodates the legitimate interests of employers.” Although the employer is not required to pay an employee while the employee is on FMLA leave, [see 29 U.S.C. §2612(c)], the “employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for [FMLA] leave provided” [see 29 U.S.C. § 2612(d)(2)].*
In this instance, said the court, short-term disability leave pursuant to Roadways’ temporary disability benefit plan was not unpaid leave. Accordingly, the FMLA provision allowing the employer to require the employee to substitute paid leave for unpaid FMLA absences was inapplicable.
In addition, the decision noted that the employer may designate the short-term disability leave as FMLA leave and count the disability leave as running concurrently for purposes of both the benefit plan and the employee’s FMLA leave entitlement. Further, said the court, “If the requirements to qualify for payments pursuant to the employer’s temporary disability plan are more stringent than those of FMLA, the employee must meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plan and instead receive no payments.”
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/short-term-disability-program-use-of.html
* The Circuit Court noted that Department of Labor regulations [29 C.F.R. §825.207(d)(1)] places certain limitations with respect to the application of this provision and indicated that disability leave for the birth of a child would be considered “FMLA leave for a serious health condition” and counted in the 12 weeks of leave permitted under FMLA.
Repa v. Roadway Express, Inc. USCA, 7th Circuit, 477 F.3d 938
Alice M. Repa complained that her employer, Roadway Express, Inc., required her to use her sick and vacation leave accruals while she was on FMLA leave although she was simultaneously receiving short-term disability benefit – i.e., paid leave - under Roadway’s disability plan.
The Circuit Court sustained a federal district court’s ruling that Roadway had violated the FMLA by requiring Repa to charge her FMLA-absence to her leave accruals. The lower court held that absence from work under a temporary disability benefit plan is not subject to a provision in the FMLA that allows employers to require employees to substitute paid leave for unpaid FMLA leave.
The decision states that “the purpose of the FMLA is, in part, “to entitle employees to take reasonable leave for medical reasons . . . in a manner that accommodates the legitimate interests of employers.” Although the employer is not required to pay an employee while the employee is on FMLA leave, [see 29 U.S.C. §2612(c)], the “employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for [FMLA] leave provided” [see 29 U.S.C. § 2612(d)(2)].*
In this instance, said the court, short-term disability leave pursuant to Roadways’ temporary disability benefit plan was not unpaid leave. Accordingly, the FMLA provision allowing the employer to require the employee to substitute paid leave for unpaid FMLA absences was inapplicable.
In addition, the decision noted that the employer may designate the short-term disability leave as FMLA leave and count the disability leave as running concurrently for purposes of both the benefit plan and the employee’s FMLA leave entitlement. Further, said the court, “If the requirements to qualify for payments pursuant to the employer’s temporary disability plan are more stringent than those of FMLA, the employee must meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plan and instead receive no payments.”
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/short-term-disability-program-use-of.html
* The Circuit Court noted that Department of Labor regulations [29 C.F.R. §825.207(d)(1)] places certain limitations with respect to the application of this provision and indicated that disability leave for the birth of a child would be considered “FMLA leave for a serious health condition” and counted in the 12 weeks of leave permitted under FMLA.
Failing to appear for an examination trumps non-selection retaliation claim
Failing to appear for an examination trumps non-selection retaliation claim
Williams v City of New York, 38 A.D.3d 238
Gina Williams, complained that she was rejected for employment as a correction officer with the New York City Department of Corrections in retaliation for her filing a sexual harassment claim against her employer, the New York City Housing Authority.
The Appellate Division, First Department ruled that Williams failed to establish a prima facie claim of retaliation as there was no evidence of a causal connection between the filing of the harassment claim in 1998 and the denial of her appointment as a correction officer some two years later.
Significantly, Williams had been approved for appointment as a corrections officer on the condition that she take a psychological examination. She failed to appear for the examination.
This, said the court, was fatal to Williams’ lawsuit claiming retaliation since “even were it determined that there was a prima facie case of retaliation, [Williams] failed to show that the legitimate, nondiscriminatory reasons given by Corrections for their actions were mere pretext.”
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/sexual-harassment-claim-rejected.html
Williams v City of New York, 38 A.D.3d 238
Gina Williams, complained that she was rejected for employment as a correction officer with the New York City Department of Corrections in retaliation for her filing a sexual harassment claim against her employer, the New York City Housing Authority.
The Appellate Division, First Department ruled that Williams failed to establish a prima facie claim of retaliation as there was no evidence of a causal connection between the filing of the harassment claim in 1998 and the denial of her appointment as a correction officer some two years later.
Significantly, Williams had been approved for appointment as a corrections officer on the condition that she take a psychological examination. She failed to appear for the examination.
This, said the court, was fatal to Williams’ lawsuit claiming retaliation since “even were it determined that there was a prima facie case of retaliation, [Williams] failed to show that the legitimate, nondiscriminatory reasons given by Corrections for their actions were mere pretext.”
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/sexual-harassment-claim-rejected.html
Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits
Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits
Dwyer v Commissioner of Labor, 273 A.D.2d 675
In June 1997 the Unemployment Insurance Appeals Board ruled that former Orange County Personnel Director Joseph M. Dwyer was entitled to unemployment insurance benefits.
The Board subsequently reopened its prior decision and on March 19, 1998 issued a ruling rescinding its June 1997 decision. This action reinstated a prior determination that Dwyer’s work as Orange County Commissioner of Personnel ending in November 1994 was excluded from coverage under Labor Law Section 565(2)(e) because it was a major nontenured policy making or advisory position. Dwyer did not appeal the Board’s March 1998 ruling.
On May 18, 1999 the Board agreed with the department that Dwyer had to pay a recoverable overpayment of $7,800 in unemployment insurance benefits. Dwyer appealed the May 1999 determination.
The Appellate Division affirmed the Board’s determination, noting that while Dwyer contended that the Board abused its discretion when it reopened its June 1997 decision in his favor, he did not appeal the March 1998 decision that held he was not eligible for unemployment insurance benefits. Accordingly, the court said it could not consider any challenge to the March 1998 ruling by the Board in this appeal.
The Appellate Division noted that while Section 597 was amended in 1998 so as to limit the recoverability of certain unemployment insurance overpayments, the legislation is not retroactive and applies only to benefit claims filed on or after May 19, 1998, the effective date of the amendment.
Accordingly, Dwyer was not covered by any of its provisions.
Dwyer v Commissioner of Labor, 273 A.D.2d 675
In June 1997 the Unemployment Insurance Appeals Board ruled that former Orange County Personnel Director Joseph M. Dwyer was entitled to unemployment insurance benefits.
The Board subsequently reopened its prior decision and on March 19, 1998 issued a ruling rescinding its June 1997 decision. This action reinstated a prior determination that Dwyer’s work as Orange County Commissioner of Personnel ending in November 1994 was excluded from coverage under Labor Law Section 565(2)(e) because it was a major nontenured policy making or advisory position. Dwyer did not appeal the Board’s March 1998 ruling.
On May 18, 1999 the Board agreed with the department that Dwyer had to pay a recoverable overpayment of $7,800 in unemployment insurance benefits. Dwyer appealed the May 1999 determination.
The Appellate Division affirmed the Board’s determination, noting that while Dwyer contended that the Board abused its discretion when it reopened its June 1997 decision in his favor, he did not appeal the March 1998 decision that held he was not eligible for unemployment insurance benefits. Accordingly, the court said it could not consider any challenge to the March 1998 ruling by the Board in this appeal.
The Appellate Division noted that while Section 597 was amended in 1998 so as to limit the recoverability of certain unemployment insurance overpayments, the legislation is not retroactive and applies only to benefit claims filed on or after May 19, 1998, the effective date of the amendment.
Accordingly, Dwyer was not covered by any of its provisions.
January 19, 2011
Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law
Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law
Matter of DiBattista v Mcdonough, 2011 NY Slip Op 00131, Appellate Division, Third Department
After the Chief of Police of the Town of Rosendale Chief of Police, Michael DiBattista, was notified by the Town Supervisor, Patrick McDonough, that he had not been reappointed to the position at the annual organizational meeting of the Town Board, DiBattista filed a petition pursuant to CPLR Article 78 seeking a court order reinstating him to the position of Chief of Police with back pay, longevity pay and compensatory time.
DiBattista argued that as an honorably discharged veteran of the armed services, he should not have been discharged without a hearing.*
Supreme Court determined that DiBattista was not entitled to the statutory protection because he did not hold his position as Chief of Police "by permanent appointment."
Noting that §16-3 of the Town’s Code provides that the Chief of Police "shall be appointed annually on January 1 of each year" and his or her term shall continue "until he [or she] is reappointed or succeeded," Supreme Court apparently deemed DiBattista to hold a “term appointment” and thus “permanent” for the purposes of the Civil Service Law only during the specified statutory term of the office.**
The Appellate Division said it agreed and affirm the lower court’s determination.
As to DiBattista’s “permanent status” in the position, the Appellate Division ruled that that time of the Board’s action, DiBattista “no longer held the status of an appointed official with tenure for a limited term; instead, he held his position as a holdover and was an at-will employee not entitled to the protections of Civil Service Law §75.”***
Additionally, the Appellate Division said that DiBattista “was further excluded from the protection of Civil Service Law §75 because his position as Chief of Police was independent in nature.”
Citing Matter of Nolan v Tully, 52 AD2d 295, 297 [1976], appeal dismissed 40 NY2d 844 [1976], lv denied 40 NY2d 803 [1976], the Appellate Division explained that Civil Service Law §75(1)(b) was intended to apply only to veterans in subordinate positions and does not include those who "may be characterized as independent officers." Based on the job description for Chief of Police, the Appellate Division concluded that the position clearly requires independent judgment and initiative and thus he was an “independent” officer.
As to DiBattista’s argument that, as a member of the Town of Rosendale Police Department, he had the right to a pretermination hearing under Town Law §155, the Appellate Division said that both Town Law §155 and Civil Service Law §75 relate to the discipline of civil service employees, they are in pari materia**** and are to be read in conjunction so that they complement one another.
However, the court explained, “it is apparent that Town Law §155 only applies to police department members who, unlike [DiBattista], hold permanent appointments. Ruling that DiBattista did not have property interest in the position, the Appellate Division concluded that he was not entitled to the protection of Town Law §155.
* Civil Service Law §75(1)(b) provides, in pertinent part, that a person holding a position by permanent appointment or employment in the classified service “who was honorably discharged or released under honorable circumstances from the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter” is subject to its provisions.
** Section 15.1(b) sets out another example of a statutory “term of office” whereby “The term of office of a [county] personnel officer shall be six years.”
*** Presumably §75 would obtain had the Town sought to remove DiBattista while he was serving as a “one-year appointee” in contrast to his serving in a “holdover” capacity.
**** Two laws relating to the same subject matter that must be analyzed with each other.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00131.htm
Matter of DiBattista v Mcdonough, 2011 NY Slip Op 00131, Appellate Division, Third Department
After the Chief of Police of the Town of Rosendale Chief of Police, Michael DiBattista, was notified by the Town Supervisor, Patrick McDonough, that he had not been reappointed to the position at the annual organizational meeting of the Town Board, DiBattista filed a petition pursuant to CPLR Article 78 seeking a court order reinstating him to the position of Chief of Police with back pay, longevity pay and compensatory time.
DiBattista argued that as an honorably discharged veteran of the armed services, he should not have been discharged without a hearing.*
Supreme Court determined that DiBattista was not entitled to the statutory protection because he did not hold his position as Chief of Police "by permanent appointment."
Noting that §16-3 of the Town’s Code provides that the Chief of Police "shall be appointed annually on January 1 of each year" and his or her term shall continue "until he [or she] is reappointed or succeeded," Supreme Court apparently deemed DiBattista to hold a “term appointment” and thus “permanent” for the purposes of the Civil Service Law only during the specified statutory term of the office.**
The Appellate Division said it agreed and affirm the lower court’s determination.
As to DiBattista’s “permanent status” in the position, the Appellate Division ruled that that time of the Board’s action, DiBattista “no longer held the status of an appointed official with tenure for a limited term; instead, he held his position as a holdover and was an at-will employee not entitled to the protections of Civil Service Law §75.”***
Additionally, the Appellate Division said that DiBattista “was further excluded from the protection of Civil Service Law §75 because his position as Chief of Police was independent in nature.”
Citing Matter of Nolan v Tully, 52 AD2d 295, 297 [1976], appeal dismissed 40 NY2d 844 [1976], lv denied 40 NY2d 803 [1976], the Appellate Division explained that Civil Service Law §75(1)(b) was intended to apply only to veterans in subordinate positions and does not include those who "may be characterized as independent officers." Based on the job description for Chief of Police, the Appellate Division concluded that the position clearly requires independent judgment and initiative and thus he was an “independent” officer.
As to DiBattista’s argument that, as a member of the Town of Rosendale Police Department, he had the right to a pretermination hearing under Town Law §155, the Appellate Division said that both Town Law §155 and Civil Service Law §75 relate to the discipline of civil service employees, they are in pari materia**** and are to be read in conjunction so that they complement one another.
However, the court explained, “it is apparent that Town Law §155 only applies to police department members who, unlike [DiBattista], hold permanent appointments. Ruling that DiBattista did not have property interest in the position, the Appellate Division concluded that he was not entitled to the protection of Town Law §155.
* Civil Service Law §75(1)(b) provides, in pertinent part, that a person holding a position by permanent appointment or employment in the classified service “who was honorably discharged or released under honorable circumstances from the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter” is subject to its provisions.
** Section 15.1(b) sets out another example of a statutory “term of office” whereby “The term of office of a [county] personnel officer shall be six years.”
*** Presumably §75 would obtain had the Town sought to remove DiBattista while he was serving as a “one-year appointee” in contrast to his serving in a “holdover” capacity.
**** Two laws relating to the same subject matter that must be analyzed with each other.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00131.htm
Denial of an Article 75 petition to vacate an arbitration award requires that the court confirm the award
Denial of an Article 75 petition to vacate an arbitration award requires that the court confirm the award
Matter of Perilli v New York State Dept. of Correctional Servs., 2011 NY Slip Op 00229, Appellate Division, Second Department
John Perilli appealed an order of the Supreme Court that denied his Article 75 petition challenging an arbitration award. The Appellate Division sustained the lower court’s determination and dismissed his appeal.
Perilli contended that the arbitrator had [1] prejudiced his rights; [2] improperly admitted evidence of prior grievances he had filed or that had been filed against him; and [3] the arbitrator’s award was against public policy.
The Appellate Division rejected each of Perilli’s contentions.
First the court ruled that Perilli had failed to meet his burden of proving "by clear and convincing evidence" that alleged impropriety or misconduct of the arbitrator prejudiced his rights or the integrity of the arbitration process or award.
As to the arbitrator’s admission of evidence of prior grievances, the court said that “the admission of evidence of prior grievances filed by and against [Perilli] did not constitute misconduct by the arbitrator,” explaining that "[a]n arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be."
Also rejected by the Appellate Division was Perilli’s motion to vacate the arbitration award on the theory that it violated public policy, holding that “ vacatur of the arbitration award is not warranted [as] the award did not violate a strong public policy, was not irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power."
The Appellate Division also commented that if a motion to vacate or modify an arbitration award is denied, the court, in the alternative, must confirm the award.
Accordingly, as Supreme Court had denied Perilli’s petition seeking to vacate the award, and the Appellate Division had concurred with the lower court’s ruling, the Appellate Division held that the arbitrator's award must be confirmed.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00229.htm
Matter of Perilli v New York State Dept. of Correctional Servs., 2011 NY Slip Op 00229, Appellate Division, Second Department
John Perilli appealed an order of the Supreme Court that denied his Article 75 petition challenging an arbitration award. The Appellate Division sustained the lower court’s determination and dismissed his appeal.
Perilli contended that the arbitrator had [1] prejudiced his rights; [2] improperly admitted evidence of prior grievances he had filed or that had been filed against him; and [3] the arbitrator’s award was against public policy.
The Appellate Division rejected each of Perilli’s contentions.
First the court ruled that Perilli had failed to meet his burden of proving "by clear and convincing evidence" that alleged impropriety or misconduct of the arbitrator prejudiced his rights or the integrity of the arbitration process or award.
As to the arbitrator’s admission of evidence of prior grievances, the court said that “the admission of evidence of prior grievances filed by and against [Perilli] did not constitute misconduct by the arbitrator,” explaining that "[a]n arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be."
Also rejected by the Appellate Division was Perilli’s motion to vacate the arbitration award on the theory that it violated public policy, holding that “ vacatur of the arbitration award is not warranted [as] the award did not violate a strong public policy, was not irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power."
The Appellate Division also commented that if a motion to vacate or modify an arbitration award is denied, the court, in the alternative, must confirm the award.
Accordingly, as Supreme Court had denied Perilli’s petition seeking to vacate the award, and the Appellate Division had concurred with the lower court’s ruling, the Appellate Division held that the arbitrator's award must be confirmed.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00229.htm
Duty to file disciplinary charges
Duty to file disciplinary charges
Anonymous v Nassau County, Supreme Court, Nassau County, Justice Phelan [Not selected for publication in the Official Reports]
From time to time the question of whether a public employer acted reasonably when it filed disciplinary charges against an individual is raised in the course of litigation. The Lindenhurst case, brought by a school teacher against whom disciplinary charges had been served and who then sued the district for malicious prosecution, raised this issue.
The Lindenhurst Union Free School District filed Section 3020-a disciplinary charges against one of its teachers, after it was reported that the teacher was a voyeur who looked at photographs of teenage girls to sexually satisfy himself.
A Nassau County police detective had found two envelopes of developed photographs in a parking lot. The pictures were of women, mostly teenagers, clothed or in bathing suits. The detective determined that the teacher, using a fictitious name and address, had brought the film to a processor for developing. Ultimately, the photographs were determined to have been take from the teacher's home.
No criminal charges were filed against the educator but the New York State Education Department was advised of the situation and provided with a copy of a statement in which the detective claimed the teacher had told him that he was a voyeur who looked at photographs to sexually satisfy himself. Eventually this information was transmitted to the superintendent and school board.
The educator was charged with (1) conduct unbecoming a teacher based on allegations that he took photographs of unknowing females for the purpose of using these photos for sexual gratification; and (2) lying to the Associate Superintendent about taking the photos .... As a result the teacher was suspended with pay but ultimately the board dismissed the Section 3020-a charges and reinstated him to his position.
Contending that the board’s action violated his civil rights [42 USC 1983], the teacher sued the district and its superintendent in federal court. Federal District Court Justice Joanna Seybert dismissed his federal claims, holding that the actions taken by the district were reasonable. In the words of the court, [t]he information these defendants had obtained led them to take appropriate and reasonable actions under the circumstances as they knew them to be.
The educator, however, had also filed a state law claim against the district and the superintendent for malicious prosecution. The county and the detective were also named as defendants in the State action. State Supreme Court Justice Thomas P. Phelan ruled that the teacher’s state law claims against the district and the superintendent were barred by the doctrine of collateral estoppel as the federal court clearly determined that defendant School District and Superintendent acted properly in preferring charges pursuant to Education Law Section 3020-a against the teacher.
Justice Phelan said that he agreed with the district’s argument that presented with information that a school teacher engaged in sexual self-stimulation with the aid of photographs of school-aged children -- whether ultimately true or not -- the defendants would have been remiss in their duties had they taken no action at all.
Was the district required to file disciplinary charges against the educator after receiving the report from the Education Department? Not necessarily, as the decision by the Commissioner of Education in the Covino case indicates [Matter of Covino, Decision 11227]. The Covino decision holds that a board is not required to serve disciplinary charges against an individual simply because it is advised of allegations of wrongdoing on the part of the employee.
A parent complained that Covino, a teacher-coach, had been involved in the hazing of a student by other students. The parent wanted the school board to dismiss Covino and a bus driver who was alleged to have been present during the incident. The board’s response to the parent’s complaint was to suspend the teacher from his coaching duties. It did not initiate formal disciplinary action against either the teacher or the driver.
This, however, did not satisfy the parent and he appealed to the Commissioner of Education in an effort to obtain an order requiring the board to initiate disciplinary action seeking removal of the teacher.
Noting that a resident of a school district may file disciplinary charges against a tenured teacher, the Commissioner said that a board of education must have a reasonable basis for its decision whether or not to proceed with the disciplinary action.
The Commissioner decided that board’s investigation of the incident, followed by its relieving the teacher of his coaching duties was sufficient under the circumstances. He ruled that the board had a reasonable basis for the action it took and its decision not to pursue further disciplinary action was neither arbitrary nor capricious.
The test set out by the Commissioner in the Covino decision: did the board investigate the allegations and then make a reasonable determination whether or not to take further action?
The employer, once having completed its investigation, essentially has the following options available to it:
1. Decide that filing disciplinary charges or taking other administrative action against the individual is unwarranted;
2. Decide that there is insufficient evidence to justify the filing of disciplinary charges but that some other administrative action, such as counseling the individual, is appropriate.
3. Decide that filing disciplinary charges against the individual is appropriate under the circumstances.
If the employer determines that it is appropriate to bring disciplinary action against an employee, may it demand that the individual resign or be served with charges? In a word: YES!
In Rychlick v Coughlin, 63 NY2d 643, a case involving a tenured State employee, the Court of Appeals said the employer could threaten the employee with disciplinary action if he or she did not resign. The court pointed out that threatening to do what the appointing authority had a legal right to do -- file disciplinary charges against the individual -- did not constitute coercion so as to make the resignation involuntary.
Sometimes the employer will agree not to reveal the reasons underlying its demanding the employee’s resignation to potential employers in the future. The employer’s ability to agree that the reasons leading to the demand for the resignation shall remain confidential has been tempered, however.
In response to the so-called silent resignation in cases involving child abuse in an educational setting by a school employee, the New York State Legislature has declared that making an agreement to maintain confidentiality in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.
A new provision, Education Law Section 1133, bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual’s resignation or agreement to a suspension from his or her position.
A violation of Section 1133 is a Class D felony and, in addition, shall also be punishable by a civil penalty not to exceed $20,000.
In addition, Subdivision 3 of Section 1133 provides that “[a]ny superintendent of schools who in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.”
___________________
The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State, is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
Anonymous v Nassau County, Supreme Court, Nassau County, Justice Phelan [Not selected for publication in the Official Reports]
From time to time the question of whether a public employer acted reasonably when it filed disciplinary charges against an individual is raised in the course of litigation. The Lindenhurst case, brought by a school teacher against whom disciplinary charges had been served and who then sued the district for malicious prosecution, raised this issue.
The Lindenhurst Union Free School District filed Section 3020-a disciplinary charges against one of its teachers, after it was reported that the teacher was a voyeur who looked at photographs of teenage girls to sexually satisfy himself.
A Nassau County police detective had found two envelopes of developed photographs in a parking lot. The pictures were of women, mostly teenagers, clothed or in bathing suits. The detective determined that the teacher, using a fictitious name and address, had brought the film to a processor for developing. Ultimately, the photographs were determined to have been take from the teacher's home.
No criminal charges were filed against the educator but the New York State Education Department was advised of the situation and provided with a copy of a statement in which the detective claimed the teacher had told him that he was a voyeur who looked at photographs to sexually satisfy himself. Eventually this information was transmitted to the superintendent and school board.
The educator was charged with (1) conduct unbecoming a teacher based on allegations that he took photographs of unknowing females for the purpose of using these photos for sexual gratification; and (2) lying to the Associate Superintendent about taking the photos .... As a result the teacher was suspended with pay but ultimately the board dismissed the Section 3020-a charges and reinstated him to his position.
Contending that the board’s action violated his civil rights [42 USC 1983], the teacher sued the district and its superintendent in federal court. Federal District Court Justice Joanna Seybert dismissed his federal claims, holding that the actions taken by the district were reasonable. In the words of the court, [t]he information these defendants had obtained led them to take appropriate and reasonable actions under the circumstances as they knew them to be.
The educator, however, had also filed a state law claim against the district and the superintendent for malicious prosecution. The county and the detective were also named as defendants in the State action. State Supreme Court Justice Thomas P. Phelan ruled that the teacher’s state law claims against the district and the superintendent were barred by the doctrine of collateral estoppel as the federal court clearly determined that defendant School District and Superintendent acted properly in preferring charges pursuant to Education Law Section 3020-a against the teacher.
Justice Phelan said that he agreed with the district’s argument that presented with information that a school teacher engaged in sexual self-stimulation with the aid of photographs of school-aged children -- whether ultimately true or not -- the defendants would have been remiss in their duties had they taken no action at all.
Was the district required to file disciplinary charges against the educator after receiving the report from the Education Department? Not necessarily, as the decision by the Commissioner of Education in the Covino case indicates [Matter of Covino, Decision 11227]. The Covino decision holds that a board is not required to serve disciplinary charges against an individual simply because it is advised of allegations of wrongdoing on the part of the employee.
A parent complained that Covino, a teacher-coach, had been involved in the hazing of a student by other students. The parent wanted the school board to dismiss Covino and a bus driver who was alleged to have been present during the incident. The board’s response to the parent’s complaint was to suspend the teacher from his coaching duties. It did not initiate formal disciplinary action against either the teacher or the driver.
This, however, did not satisfy the parent and he appealed to the Commissioner of Education in an effort to obtain an order requiring the board to initiate disciplinary action seeking removal of the teacher.
Noting that a resident of a school district may file disciplinary charges against a tenured teacher, the Commissioner said that a board of education must have a reasonable basis for its decision whether or not to proceed with the disciplinary action.
The Commissioner decided that board’s investigation of the incident, followed by its relieving the teacher of his coaching duties was sufficient under the circumstances. He ruled that the board had a reasonable basis for the action it took and its decision not to pursue further disciplinary action was neither arbitrary nor capricious.
The test set out by the Commissioner in the Covino decision: did the board investigate the allegations and then make a reasonable determination whether or not to take further action?
The employer, once having completed its investigation, essentially has the following options available to it:
1. Decide that filing disciplinary charges or taking other administrative action against the individual is unwarranted;
2. Decide that there is insufficient evidence to justify the filing of disciplinary charges but that some other administrative action, such as counseling the individual, is appropriate.
3. Decide that filing disciplinary charges against the individual is appropriate under the circumstances.
If the employer determines that it is appropriate to bring disciplinary action against an employee, may it demand that the individual resign or be served with charges? In a word: YES!
In Rychlick v Coughlin, 63 NY2d 643, a case involving a tenured State employee, the Court of Appeals said the employer could threaten the employee with disciplinary action if he or she did not resign. The court pointed out that threatening to do what the appointing authority had a legal right to do -- file disciplinary charges against the individual -- did not constitute coercion so as to make the resignation involuntary.
Sometimes the employer will agree not to reveal the reasons underlying its demanding the employee’s resignation to potential employers in the future. The employer’s ability to agree that the reasons leading to the demand for the resignation shall remain confidential has been tempered, however.
In response to the so-called silent resignation in cases involving child abuse in an educational setting by a school employee, the New York State Legislature has declared that making an agreement to maintain confidentiality in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.
A new provision, Education Law Section 1133, bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual’s resignation or agreement to a suspension from his or her position.
A violation of Section 1133 is a Class D felony and, in addition, shall also be punishable by a civil penalty not to exceed $20,000.
In addition, Subdivision 3 of Section 1133 provides that “[a]ny superintendent of schools who in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.”
___________________
The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State, is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
General Municipal Law Section 207-c disability benefits forfeited following a change of residence
General Municipal Law Section 207-c disability benefits forfeited following a change of residence
Kevin O'Connor Et Al., v Police Commission Of The Town Of Clarkstown et al, 221 AD2d 444
Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to 30.1.d of the Public Officers Law because he "ceased to be an inhabitant within the geographical restrictions" set by law. Section 30.1.d provides that the public office "shall be vacant" if the officer does not live in the appropriate geographical area.* Clarkstown also discontinued paying O’Connor disability benefits pursuant to 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County.
O'Connor had moved to Warren County. Clarkstown is in Rockland County. Warren and Rockland Counties are not contiguous.
Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable." Further, O’Connor could not cure this difficulty by returning and again becoming a resident of Rockland County or to a county contiguous to Rockland County.
The Appellate Division said that there was ample evidence to support the determination that O'Connor had ceased to be an inhabitant of the geographical area required for members of the Clarkstown Police Department. Accordingly, the Town’s decision was neither arbitrary nor capricious.
The Appellate Division also rejected O'Connor's claim that he satisfied Section 3.2's residence requirement because he "occasionally stayed" at an in-laws apartment that was within the geographical area."
* Section 3.2 of the Public Officers Law permits a police officer to reside in the same or a contiguous county in which the political subdivision employing the officer is located. Subdivision 19 of Section 3.2 sets out residence provisions applicable to police officers of the City of New York.
_______________
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for further information about this electronic handbook.
Kevin O'Connor Et Al., v Police Commission Of The Town Of Clarkstown et al, 221 AD2d 444
Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to 30.1.d of the Public Officers Law because he "ceased to be an inhabitant within the geographical restrictions" set by law. Section 30.1.d provides that the public office "shall be vacant" if the officer does not live in the appropriate geographical area.* Clarkstown also discontinued paying O’Connor disability benefits pursuant to 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County.
O'Connor had moved to Warren County. Clarkstown is in Rockland County. Warren and Rockland Counties are not contiguous.
Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable." Further, O’Connor could not cure this difficulty by returning and again becoming a resident of Rockland County or to a county contiguous to Rockland County.
The Appellate Division said that there was ample evidence to support the determination that O'Connor had ceased to be an inhabitant of the geographical area required for members of the Clarkstown Police Department. Accordingly, the Town’s decision was neither arbitrary nor capricious.
The Appellate Division also rejected O'Connor's claim that he satisfied Section 3.2's residence requirement because he "occasionally stayed" at an in-laws apartment that was within the geographical area."
* Section 3.2 of the Public Officers Law permits a police officer to reside in the same or a contiguous county in which the political subdivision employing the officer is located. Subdivision 19 of Section 3.2 sets out residence provisions applicable to police officers of the City of New York.
_______________
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for further information about this electronic handbook.
The ground rules for individual holding two public offices simultaneously
The ground rules for individual holding two public offices simultaneously
Informal Opinions of the Attorney General, Informal Opinion 2000-9
Wondering if an attorney may simultaneously hold two different public offices? The answer: it depends on the situation!
The Attorney General recently advised Columbia County Attorney Beth A. O’Connor that an assistant county attorney could also serve as the mayor of a city located within the County (Informal Opinion 2000-9).
In contrast, the attorneys for Jefferson-Lewis BOCES were told that the office of district attorney was incompatible with that official’s membership on a BOCES or school board within his or her jurisdiction. [Informal Opinion 2000-13].
The standard applied by the Attorney General, citing Ryan v Green, 58 NY 295, is that except where prohibited by law, one person may hold two offices simultaneously unless they are incompatible.
What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices.
In the assistant county attorney/mayor situation the Attorney General indicated that the two positions were compatible and based on the representation that the assistant county attorney would not engage in any legal matters involving the city, the duties of the two positions did not appear inconsistent.
In the district attorney/BOCES-school board situation, the Attorney General said that there appeared to be a conflict between the two offices in view of the district attorney’s broad discretion in determining when and in what manner to investigate suspected crimes. In addition, the Attorney General said that in view of the policy making functions involved in the BOCES/school board position, this dual office holding raises questions as to whether the district attorney can impartially carry out his [or her] broad prosecutorial discretion and, therefore, tends to undermine public confidence in the integrity of government.
In another dual office situation, the Attorney General concluded that an individual could simultaneously serve as a town assessor and as a member of a school board of a district that included the town [Informal Opinion 2000-14] because a town assessor determines the value of real property for the purposes of taxation while a school board member determines policy for the district.
Informal Opinions of the Attorney General, Informal Opinion 2000-9
Wondering if an attorney may simultaneously hold two different public offices? The answer: it depends on the situation!
The Attorney General recently advised Columbia County Attorney Beth A. O’Connor that an assistant county attorney could also serve as the mayor of a city located within the County (Informal Opinion 2000-9).
In contrast, the attorneys for Jefferson-Lewis BOCES were told that the office of district attorney was incompatible with that official’s membership on a BOCES or school board within his or her jurisdiction. [Informal Opinion 2000-13].
The standard applied by the Attorney General, citing Ryan v Green, 58 NY 295, is that except where prohibited by law, one person may hold two offices simultaneously unless they are incompatible.
What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices.
In the assistant county attorney/mayor situation the Attorney General indicated that the two positions were compatible and based on the representation that the assistant county attorney would not engage in any legal matters involving the city, the duties of the two positions did not appear inconsistent.
In the district attorney/BOCES-school board situation, the Attorney General said that there appeared to be a conflict between the two offices in view of the district attorney’s broad discretion in determining when and in what manner to investigate suspected crimes. In addition, the Attorney General said that in view of the policy making functions involved in the BOCES/school board position, this dual office holding raises questions as to whether the district attorney can impartially carry out his [or her] broad prosecutorial discretion and, therefore, tends to undermine public confidence in the integrity of government.
In another dual office situation, the Attorney General concluded that an individual could simultaneously serve as a town assessor and as a member of a school board of a district that included the town [Informal Opinion 2000-14] because a town assessor determines the value of real property for the purposes of taxation while a school board member determines policy for the district.
January 18, 2011
Beware of Face Book
Beware of Face Book
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.
Can employers get access to your Face Book account? Increasingly, the answer may be yes. In a New York case, where the plaintiff's physical condition was at issue, a lower court judge ordered that a defendant be granted access, Romano v. Steelcase, Inc., ___Misc.3d____(Suffolk Co. 2010). See also, Law.com discussion.
There are also some cases granting disclosure of Face Book accounts in the context of attorney disciplinary proceedings as discussed in Legal Prof Blog.
Moral of the story: Beware what you post on the internet. It can come back to haunt you!
Mitchell H. Rubinstein
Hat Tip: Legal Writing Prof Blog
NYPPL Comments: See, also, Matson v. Board of Education of the School District of City of New York, USCA, 2nd Circuit, 09-3773-cv.
The Matson decision by the U.S. Second Circuit Court of Appeals concludes that “Not all ‘serious medical conditions’ are protected by a constitutional right to privacy” and is posted by NYPPL at http://publicpersonnellaw.blogspot.com/2011/01/not-all-serious-medical-conditions-are.html
.
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.
Can employers get access to your Face Book account? Increasingly, the answer may be yes. In a New York case, where the plaintiff's physical condition was at issue, a lower court judge ordered that a defendant be granted access, Romano v. Steelcase, Inc., ___Misc.3d____(Suffolk Co. 2010). See also, Law.com discussion.
There are also some cases granting disclosure of Face Book accounts in the context of attorney disciplinary proceedings as discussed in Legal Prof Blog.
Moral of the story: Beware what you post on the internet. It can come back to haunt you!
Mitchell H. Rubinstein
Hat Tip: Legal Writing Prof Blog
NYPPL Comments: See, also, Matson v. Board of Education of the School District of City of New York, USCA, 2nd Circuit, 09-3773-cv.
The Matson decision by the U.S. Second Circuit Court of Appeals concludes that “Not all ‘serious medical conditions’ are protected by a constitutional right to privacy” and is posted by NYPPL at http://publicpersonnellaw.blogspot.com/2011/01/not-all-serious-medical-conditions-are.html
.
At-will employee’s claims of wrongful termination and defamation rejected by court
At-will employee’s claims of wrongful termination and defamation rejected by court
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department
George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.
The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.
Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."
The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.
NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department
George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.
The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.
Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."
The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.
NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm
Federal Court sustains employer application for employee’s involuntary retirement for disability
Federal Court sustains employer application for employee’s involuntary retirement for disability
Campbell v City of New York, USDC, SDNY
Jonathan Campbell, claiming that the City of New York deprived him of liberty and property without due process of law in violation of his Fourteenth Amendment rights and his civil rights under 42 USC 1983 when it found him mentally incapacitated and involuntarily retiring him from his position as a New York City Transit Authority [NYCTA] police officer, sued the City and the New York City Employees’ Retirement System.
Campbell’s personnel file revealed that during his employment, disciplinary charges were filed against him about a dozen times alleging misconduct such as insubordination, taking unauthorized leave, reporting late for duty, using ethnic slurs, and failing to appear for hearings.
Claiming he was suffering from stress and emotional problems, Campbell requested and was granted multiple medical leaves. He was admitted to the Hillside Hospital’s psychiatric division and his private psychotherapist diagnosed him as having an Impulsive Behavior Personality Disorder.
Ultimately NYCTA filed an application on behalf of Campbell seeking his involuntary retirement due to mental incapacity. NYCTA cited Campbell’s psychotherapist’s diagnosis of Impulsive Behavior Personality Disorder and an NYCTA doctor’s evaluation that such disorder required a permanent restricted work assignment.
The decision sets out the due process procedures to be followed once an employer files an application for involuntary retirement on behalf of an employee as follows:
1. The employee is entitled to all departmental files that will be considered by the Medical Board in reviewing his case.
2. The employee may supplement these records with written argument or additional medical or other evidence if he or she so desires.
3. The employee is to be interviewed by the Medical Board privately and the Board may refer the individual to a psychiatrist, psychologist or other medical specialists for evaluation.
4. The Medical Board is to prepare a written report that explains findings and the reasons supporting such findings. If the Board finds the employee to be mentally incapacitated for the performance of duty and ought to be retired, the Board will recommend his or her involuntary retirement.
5. If the Medical Board recommends approval of the retirement application by the head of the agency, the member, his counsel or his union representative may appear before the Retirement System’s Board of Trustees and present arguments on the propriety of the Medical Board’s recommendation.
6. The Board of Trustees is to independently consider the Medical Board’s recommendation and uphold this recommendation if it concurs with the Medical Board’s findings or it may remand the case to the Medical Board if it finds procedural irregularities, if new evidence supports reconsideration, or if the recommendation is not supported by competent evidence.
7. If the Board of Trustees votes for involuntary retirement, the member may seek review in an Article 78 proceeding pursuant to New York’s Civil Practice Law and Rules.
8. If the individual is involuntarily retired, he or she may seek reinstatement one year following his retirement through procedures similar to those described in Steps 1-7 above.
In Campbell’s case, the Medical Board considered NYCTA’s involuntary retirement application, and the evidence he submitted his efforts to resist this action a number of times, as did the Board of Trustees, including his request that he be given more time on restricted duty prior to being involuntarily retired.
Following these reviews Campbell was involuntarily retired. He was advised that he could apply for reinstatement each year after his retirement to demonstrate that he was now capable of full duty. Campbell attempted to be reinstated but was unable to persuade the Board that he was qualified to be returned to duty.
Claiming that he had not been afforded due process of law in both the proceedings relating to his involuntary retirement and his subsequent request for reinstatement, Campbell sued.
The district court began its review by noting that:
1. To demonstrate a violation of Section 1983, a plaintiff must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States;
2. The Fourteenth Amendment means that a local or state government employer may not involuntarily retire a public employee from his or her work without due process of law, citing Board of Regents v Roth, 408 U.S. 564 and Cleveland Board of Education v Loudermill, 470 U.S. 532; and
3. Due process requires notice and an opportunity to be heard, citing Matthews v Eldridge, 424 U.S. 319.
The elements that must be weighed determining if the individual was provided due process are:
(1) the importance of the individual’s interest affected by the official action;
(2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards; and
(3) the government’s interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail.
Dismissing Campbell petition, the court said that “[g]iven the extensive nature of [the System’s] proceedings Campbell was not deprived of an adequate opportunity to be heard prior to his retirement.”
Another issue: was Campbell entitled to an adversarial hearing and the assistance of counsel during all Medical Board proceedings. No, said the court, noting that the Supreme Court has specifically rejected requiring an adversarial hearing with representation by counsel when making psychiatric medical determinations, even if they ultimately result in involuntary commitment , citing Washington v Harper, 494 US 210.
Campbell v City of New York, USDC, SDNY
Jonathan Campbell, claiming that the City of New York deprived him of liberty and property without due process of law in violation of his Fourteenth Amendment rights and his civil rights under 42 USC 1983 when it found him mentally incapacitated and involuntarily retiring him from his position as a New York City Transit Authority [NYCTA] police officer, sued the City and the New York City Employees’ Retirement System.
Campbell’s personnel file revealed that during his employment, disciplinary charges were filed against him about a dozen times alleging misconduct such as insubordination, taking unauthorized leave, reporting late for duty, using ethnic slurs, and failing to appear for hearings.
Claiming he was suffering from stress and emotional problems, Campbell requested and was granted multiple medical leaves. He was admitted to the Hillside Hospital’s psychiatric division and his private psychotherapist diagnosed him as having an Impulsive Behavior Personality Disorder.
Ultimately NYCTA filed an application on behalf of Campbell seeking his involuntary retirement due to mental incapacity. NYCTA cited Campbell’s psychotherapist’s diagnosis of Impulsive Behavior Personality Disorder and an NYCTA doctor’s evaluation that such disorder required a permanent restricted work assignment.
The decision sets out the due process procedures to be followed once an employer files an application for involuntary retirement on behalf of an employee as follows:
1. The employee is entitled to all departmental files that will be considered by the Medical Board in reviewing his case.
2. The employee may supplement these records with written argument or additional medical or other evidence if he or she so desires.
3. The employee is to be interviewed by the Medical Board privately and the Board may refer the individual to a psychiatrist, psychologist or other medical specialists for evaluation.
4. The Medical Board is to prepare a written report that explains findings and the reasons supporting such findings. If the Board finds the employee to be mentally incapacitated for the performance of duty and ought to be retired, the Board will recommend his or her involuntary retirement.
5. If the Medical Board recommends approval of the retirement application by the head of the agency, the member, his counsel or his union representative may appear before the Retirement System’s Board of Trustees and present arguments on the propriety of the Medical Board’s recommendation.
6. The Board of Trustees is to independently consider the Medical Board’s recommendation and uphold this recommendation if it concurs with the Medical Board’s findings or it may remand the case to the Medical Board if it finds procedural irregularities, if new evidence supports reconsideration, or if the recommendation is not supported by competent evidence.
7. If the Board of Trustees votes for involuntary retirement, the member may seek review in an Article 78 proceeding pursuant to New York’s Civil Practice Law and Rules.
8. If the individual is involuntarily retired, he or she may seek reinstatement one year following his retirement through procedures similar to those described in Steps 1-7 above.
In Campbell’s case, the Medical Board considered NYCTA’s involuntary retirement application, and the evidence he submitted his efforts to resist this action a number of times, as did the Board of Trustees, including his request that he be given more time on restricted duty prior to being involuntarily retired.
Following these reviews Campbell was involuntarily retired. He was advised that he could apply for reinstatement each year after his retirement to demonstrate that he was now capable of full duty. Campbell attempted to be reinstated but was unable to persuade the Board that he was qualified to be returned to duty.
Claiming that he had not been afforded due process of law in both the proceedings relating to his involuntary retirement and his subsequent request for reinstatement, Campbell sued.
The district court began its review by noting that:
1. To demonstrate a violation of Section 1983, a plaintiff must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States;
2. The Fourteenth Amendment means that a local or state government employer may not involuntarily retire a public employee from his or her work without due process of law, citing Board of Regents v Roth, 408 U.S. 564 and Cleveland Board of Education v Loudermill, 470 U.S. 532; and
3. Due process requires notice and an opportunity to be heard, citing Matthews v Eldridge, 424 U.S. 319.
The elements that must be weighed determining if the individual was provided due process are:
(1) the importance of the individual’s interest affected by the official action;
(2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards; and
(3) the government’s interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail.
Dismissing Campbell petition, the court said that “[g]iven the extensive nature of [the System’s] proceedings Campbell was not deprived of an adequate opportunity to be heard prior to his retirement.”
Another issue: was Campbell entitled to an adversarial hearing and the assistance of counsel during all Medical Board proceedings. No, said the court, noting that the Supreme Court has specifically rejected requiring an adversarial hearing with representation by counsel when making psychiatric medical determinations, even if they ultimately result in involuntary commitment , citing Washington v Harper, 494 US 210.
Reassignment of personnel
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
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
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/
.
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."
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]
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]
January 12, 2011
Attaining tenure by estoppel
Attaining tenure by estoppel
Lilley v Mills, App. Div., 274 A.D.2d 644
Robert Lilley was employed by the George Junior Republic Union Free School District to replace the district’s part-time per-diem school psychologist for the 1993-1994 academic year. As Lilley was paid on a per-diem basis, he did not receive any of the fringe benefits, such as health insurance, provided to full-time employees.
The record indicated that Lilley was not obligated to report to work on a daily basis nor was the district required to utilize his services on a daily basis or pay him for days he did not work.
In July 1994, Lilley was given a probationary appointment as a full-time school psychologist. He was terminated effective June 30, 1997. Lilley objected to his termination and appealed to the Commissioner of Education claiming that he had attained tenure by estoppel on the basis of his service as a per-diem substitute school psychologist during the 1993-1994 school year. Lilley later amended his claim, contending simply that he was employed full-time by the district commencing October 1993.
The Commissioner of Education dismissed Lilley’s appeal, holding that he had not attained tenure by estoppel. Lilley filed an Article 78 petition seeking to overturn the Commissioner’s determination.
The Appellate Division, Third Department, commenced its analysis by noting that:
Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term ...,” citing McManus v Hempstead Union Free School District, 87 NY2d 183.
The key to resolving Lilley’s problem: as he had to satisfactorily complete a three-year probationary period to attain tenure, he had the burden of proving that he had acquired tenure by estoppel by showing that he was entitled to probationary service credit for his services during academic 1993-1994.”
The court commented that the Commissioner had indicated that part-time service is generally insufficient to establish tenure by estoppel. After the Commissioner reviewed Lilley’s employment history for academic 1993-1994, he concluded that Lilley failed to meet his burden of proof that he had been employed full-time for this period.
The Appellate Division sustained the Commissioner’s determination, noting the following significant points:
1. The true nature of an individual’s employment status cannot be determined by the label given to it by the District and depends instead on the realities of the position and its accompanying duties.
2. The record showed that the change of Lilley’s status to full time in July 1994 involved more than merely changing the label of the position.
3. During academic 1993-1994 Lilley was paid only for days he actually worked and did not receive the fringe benefits provided to the District’s full-time employees.
4. Lilley was paid a salary and received the additional benefits provided to the district’s full-time professional staff commencing with academic 1994-95.
5. The superintendent stated that Lilley’s duties changed after July 1994 and provided examples such as his beginning to serve as Chair of the Committee on Special Education.
Thus, said the court, the record before the Commissioner contained sufficient evidence to provide a rational basis to support his rejection of Lilley’s appeal.
Citing Catlin v Sobol, 77 NY2d 552, the Appellate Division said that “[i]n such cases the Commissioner’s determination must be upheld unless it is arbitrary and capricious and without rational basis.”
Although Lilley attempted to support his claims by listing the duties contained in the district’s job description for the full-time school psychologist position and contended that he performed those duties during the 1993-1994 school year, he also conceded that his duties intensified after July 1994.
Considering the conclusory nature of Lilley’s answer to the district’s claims and Lilley’s “concession that his duties ‘intensified’, the absence of any independent evidence such as documents or affidavits of disinterested persons with knowledge of the facts to support [Lilley’s] self-serving allegations and the failure to include his claim concerning his 1993-1994 duties in his petition,” the Appellate Division held that there was nothing arbitrary, capricious or irrational in the Commissioner’s rejecting Lilley’s appeal.
Lilley v Mills, App. Div., 274 A.D.2d 644
Robert Lilley was employed by the George Junior Republic Union Free School District to replace the district’s part-time per-diem school psychologist for the 1993-1994 academic year. As Lilley was paid on a per-diem basis, he did not receive any of the fringe benefits, such as health insurance, provided to full-time employees.
The record indicated that Lilley was not obligated to report to work on a daily basis nor was the district required to utilize his services on a daily basis or pay him for days he did not work.
In July 1994, Lilley was given a probationary appointment as a full-time school psychologist. He was terminated effective June 30, 1997. Lilley objected to his termination and appealed to the Commissioner of Education claiming that he had attained tenure by estoppel on the basis of his service as a per-diem substitute school psychologist during the 1993-1994 school year. Lilley later amended his claim, contending simply that he was employed full-time by the district commencing October 1993.
The Commissioner of Education dismissed Lilley’s appeal, holding that he had not attained tenure by estoppel. Lilley filed an Article 78 petition seeking to overturn the Commissioner’s determination.
The Appellate Division, Third Department, commenced its analysis by noting that:
Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term ...,” citing McManus v Hempstead Union Free School District, 87 NY2d 183.
The key to resolving Lilley’s problem: as he had to satisfactorily complete a three-year probationary period to attain tenure, he had the burden of proving that he had acquired tenure by estoppel by showing that he was entitled to probationary service credit for his services during academic 1993-1994.”
The court commented that the Commissioner had indicated that part-time service is generally insufficient to establish tenure by estoppel. After the Commissioner reviewed Lilley’s employment history for academic 1993-1994, he concluded that Lilley failed to meet his burden of proof that he had been employed full-time for this period.
The Appellate Division sustained the Commissioner’s determination, noting the following significant points:
1. The true nature of an individual’s employment status cannot be determined by the label given to it by the District and depends instead on the realities of the position and its accompanying duties.
2. The record showed that the change of Lilley’s status to full time in July 1994 involved more than merely changing the label of the position.
3. During academic 1993-1994 Lilley was paid only for days he actually worked and did not receive the fringe benefits provided to the District’s full-time employees.
4. Lilley was paid a salary and received the additional benefits provided to the district’s full-time professional staff commencing with academic 1994-95.
5. The superintendent stated that Lilley’s duties changed after July 1994 and provided examples such as his beginning to serve as Chair of the Committee on Special Education.
Thus, said the court, the record before the Commissioner contained sufficient evidence to provide a rational basis to support his rejection of Lilley’s appeal.
Citing Catlin v Sobol, 77 NY2d 552, the Appellate Division said that “[i]n such cases the Commissioner’s determination must be upheld unless it is arbitrary and capricious and without rational basis.”
Although Lilley attempted to support his claims by listing the duties contained in the district’s job description for the full-time school psychologist position and contended that he performed those duties during the 1993-1994 school year, he also conceded that his duties intensified after July 1994.
Considering the conclusory nature of Lilley’s answer to the district’s claims and Lilley’s “concession that his duties ‘intensified’, the absence of any independent evidence such as documents or affidavits of disinterested persons with knowledge of the facts to support [Lilley’s] self-serving allegations and the failure to include his claim concerning his 1993-1994 duties in his petition,” the Appellate Division held that there was nothing arbitrary, capricious or irrational in the Commissioner’s rejecting Lilley’s appeal.
Disciplinary action follows failure to report for medical exam
Disciplinary action follows failure to report for medical exam
Santiago v Koehler, 546 NYS2d 625
An appointment was schedule for an employee to be evaluated by the employer's Health Management Division. This apparently was one of a series of such appointments. Earlier appointments that had been scheduled for the employee but he failed to appear for the examination. When the Santiago failed to appear for this, the most recent scheduled appointment, he was served with disciplinary charges alleging misconduct based on his failure to report for the medical examination as scheduled.
Found guilty, Santiago was told that he had a choice as to the penalty to be imposed. He could elect either a five-day suspension without pay or, in the alternative, agree to pay a fine of 300 dollars. Santiago elected the five-day suspension without pay rather than the $300 fine. He then sued to vacate the disciplinary action, asking the court to rescind the penalty he had elected.
The Appellate Division, 1st Department, decided that the disciplinary determination was supported by substantial evidence. This evidence apparently included admissions by Santiago concerning the event. It then said that “the penalty of five days suspension, chosen by [Santiago] from the options adopted by the Commissioner, is not excessive in relation to the repeated infractions here involved.”
Santiago v Koehler, 546 NYS2d 625
An appointment was schedule for an employee to be evaluated by the employer's Health Management Division. This apparently was one of a series of such appointments. Earlier appointments that had been scheduled for the employee but he failed to appear for the examination. When the Santiago failed to appear for this, the most recent scheduled appointment, he was served with disciplinary charges alleging misconduct based on his failure to report for the medical examination as scheduled.
Found guilty, Santiago was told that he had a choice as to the penalty to be imposed. He could elect either a five-day suspension without pay or, in the alternative, agree to pay a fine of 300 dollars. Santiago elected the five-day suspension without pay rather than the $300 fine. He then sued to vacate the disciplinary action, asking the court to rescind the penalty he had elected.
The Appellate Division, 1st Department, decided that the disciplinary determination was supported by substantial evidence. This evidence apparently included admissions by Santiago concerning the event. It then said that “the penalty of five days suspension, chosen by [Santiago] from the options adopted by the Commissioner, is not excessive in relation to the repeated infractions here involved.”
Enlarging the probationary period
Enlarging the probationary period
Caruso v Ward, 546 NYS2d 853
The New York City Police Department decided to change the initial probationary period for police officers from eighteen months to two years. The Union challenged the decision and asked the Courts to annul the change.
The Appellate Division sustained the Department’s changing the term of the probationary period for newly appointed police officers, citing a number of reasons for its ruling.
The Court said that the Union:
(1) had failed to show that it had a clear legal right to the relief it sought [reversion to the 18 month probationary period] and
(2) it did not present any evidence of bad faith, illegality or arbitrary action by the Department in extending the maximum period of probation for new appointees to the force.
The Appellate Division then said that “the decision to enlarge the probationary period was rationally related to the goal of more thorough evaluation of [a] new officers’ fitness for duty” and denied the union’s appeal.
Caruso v Ward, 546 NYS2d 853
The New York City Police Department decided to change the initial probationary period for police officers from eighteen months to two years. The Union challenged the decision and asked the Courts to annul the change.
The Appellate Division sustained the Department’s changing the term of the probationary period for newly appointed police officers, citing a number of reasons for its ruling.
The Court said that the Union:
(1) had failed to show that it had a clear legal right to the relief it sought [reversion to the 18 month probationary period] and
(2) it did not present any evidence of bad faith, illegality or arbitrary action by the Department in extending the maximum period of probation for new appointees to the force.
The Appellate Division then said that “the decision to enlarge the probationary period was rationally related to the goal of more thorough evaluation of [a] new officers’ fitness for duty” and denied the union’s appeal.
January 11, 2011
Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections
Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Upon learning that his wife was pregnancy and due in early 2008, Chad Wilson told his supervisor that he might need to take leave to care for his newborn if his mother-in-law was unavailable. Wilson was subsequently terminated for dismissing his supervisor's concerns about Wilson’s failure to follow the chain of command regarding a pay issue.
Wilson sued alleging that his termination was in retaliation for exercising FMLA rights. He argued that he engaged in FMLA-protected activity by requesting leave to care for his child. The FMLA provides that an employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave" [29 CFR 825.302(c)].
The Fifth Circuit found that Wilson failed to provide adequate notice of the need for FMLA leave. Wilson, the Court observed, " never informed Noble that he intended to take leave, only that he "might" need to take leave and that there was a "possibility" that he would need to take leave." The Court held that these comments were insufficient to make his employer aware that he needed FMLA-qualifying leave.
The Court also found that Wilson failed to notify his employer of the "anticipated timing and duration" of any leave. Wilson conceded that he did not get into any specifics as to who, what, when, or where of the leave. Telling his supervisor that he "might" need to take leave "early in the year after the baby was here" failed to inform the employer of the anticipated timing and duration of the leave, the Court held.
The Court held that Wilson failed to establish that his removal was in retaliation for requesting FMLA leave.
Wilson v. Noble Drilling Service, Inc., 10-20129 (5th Cir. Dec. 23, 2010)
Mr. Bosland Comments: While employees need not invoke the FMLA by name when requesting leave, they must provide their employer with sufficient information to alert the employer that FMLA leave may be needed.
Telling an employer that you "might" or "possibly" may need FMLA leave, even for an FMLA-qualifying reason, is not sufficient. To be a valid request, courts also want more specificity in terms of the timing and duration of the leave. Employees do not invoke the protections of the FMLA by telling your employer that you may need leave at unknown time in the future.
To invoke the FMLA, employees need to provide more specifics, not less, when requesting leave.
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Upon learning that his wife was pregnancy and due in early 2008, Chad Wilson told his supervisor that he might need to take leave to care for his newborn if his mother-in-law was unavailable. Wilson was subsequently terminated for dismissing his supervisor's concerns about Wilson’s failure to follow the chain of command regarding a pay issue.
Wilson sued alleging that his termination was in retaliation for exercising FMLA rights. He argued that he engaged in FMLA-protected activity by requesting leave to care for his child. The FMLA provides that an employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave" [29 CFR 825.302(c)].
The Fifth Circuit found that Wilson failed to provide adequate notice of the need for FMLA leave. Wilson, the Court observed, " never informed Noble that he intended to take leave, only that he "might" need to take leave and that there was a "possibility" that he would need to take leave." The Court held that these comments were insufficient to make his employer aware that he needed FMLA-qualifying leave.
The Court also found that Wilson failed to notify his employer of the "anticipated timing and duration" of any leave. Wilson conceded that he did not get into any specifics as to who, what, when, or where of the leave. Telling his supervisor that he "might" need to take leave "early in the year after the baby was here" failed to inform the employer of the anticipated timing and duration of the leave, the Court held.
The Court held that Wilson failed to establish that his removal was in retaliation for requesting FMLA leave.
Wilson v. Noble Drilling Service, Inc., 10-20129 (5th Cir. Dec. 23, 2010)
Mr. Bosland Comments: While employees need not invoke the FMLA by name when requesting leave, they must provide their employer with sufficient information to alert the employer that FMLA leave may be needed.
Telling an employer that you "might" or "possibly" may need FMLA leave, even for an FMLA-qualifying reason, is not sufficient. To be a valid request, courts also want more specificity in terms of the timing and duration of the leave. Employees do not invoke the protections of the FMLA by telling your employer that you may need leave at unknown time in the future.
To invoke the FMLA, employees need to provide more specifics, not less, when requesting leave.
Subscribe to:
Posts (Atom)
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press.
Email: nyppl@nycap.rr.com.