Negligent hiring and retention of an employee

Negligent hiring and retention of an employee
Anonymous v Dobbs Ferry UFSD, 290 AD2d 464

In the Dobbs Ferry case, New York State Supreme Court Justice Donovan considered a number of important issues, including allegations that the district, and its school superintendent and a middle school principal [“the district”], were guilty of negligent hiring and retention of Steven Nowicki as a teacher.

The decision, which considered various motions to dismiss the action and to amend the complaint preliminary to a trial on the merits, reports that the parents of one of Nowicki’s students invited Nowicki to a New Year’s Eve party. Nowicki, it was alleged, became intoxicated at the party and, at the suggestion of the parents, spent the night at their home rather than risk driving to his own home. The complaint charged that Nowicki later that night sexually assaulted his student, and the student’s younger brother, in their bedroom.

The district asked the court to dismiss the complaint, contending that they cannot be held liable for an incident that occurred outside the school’s premises at a private function for a number of reasons, including:

1. A school’s duty toward its pupils extends only as far as physical custody and control over the pupils and that duty ceases once the pupils have passed out of the school’s orbit of authority.

2. Because of a superseding factor -- the parents invited Nowicki into their home -- any negligent hiring would not be the proximate cause of the alleged injuries.

3. The criminal acts allegedly committed by Nowicki were outside the scope of his employment, and therefore cannot be attributed to the district or its superintendent or principal under the doctrine of respondeat superior.

In response to the district’s motion to dismiss the action on the theory that the school has no duty to supervise a student once he or she has left the custody and control of the school, the court ruled that the location of the incident was irrelevant and declined to grant the district’s motion.

The district appealed. The Appellate Division ruled that Supreme Court improperly denied the district’s cross motion for summary judgment dismissing the complaint with respect to it.

The Appellate Division said that the district had made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any nexus between Nowicki's employment at the district and his alleged sexual molestation of the infant plaintiffs was severed by time, distance, and the intervening independent actions of their parents, citing Cardona v Cruz, 271 AD2d 221; K. I. v New York City Bd. of Educ., 256 AD2d 189; McDonald v Cook, 252 AD2d 302; and Lemp v Lewis, 226 AD2d 907, in support of its ruling.

Individuals performing services for a public employer may be designated "non-employees" by statute

Individuals performing services for a public employer may be designated "non-employees" by statute
Levitt v NYC Office of Collective Bargaining, 273 AD2d 104

For the purposes of collective bargaining Article 14 of the Civil Service Law -- the Taylor Law -- applies to all individuals in the services of a public employer except judges, individuals in the military service and public employees designated managerial or confidential.*

The point made clear by the Levitt decision -- individuals who might otherwise satisfy the criteria for public employment, and thus otherwise covered by the Taylor Law, may be denied such status by statute.

Kenneth Levitt challenged a ruling by New York City’s Office of Collective Bargaining [OCB] declaring that four hearing examiners employed by the city’s Parking Violations Bureau [PVB] were ineligible for inclusion in a collective bargaining unit representing city employees.

OCB’s rationale: Section 236(2)(d) of the Vehicle and Traffic Law provides that [s]uch hearing examiners shall not be considered employees of the city in which the administrative tribunal has been established.**

The Appellate Division, First Department, agreed, ruling that [g]iven this clear statutory language, the PVB hearing officers cannot be considered City employees entitled to collectively bargain pursuant to the Taylor Law even though, as OCB found following a hearing, in all other respects these hearing officers meet the criteria for public employment.

Does Levitt have any recourse? Perhaps. As the court pointed out, this was an issue for the Legislature, not the courts, to address.

* Certain individuals have been declared managerial or confidential within the meaning of the Taylor Law by statute.

** Civil Service Law Sections 210 - Prohibition against strikes - and Section 211 - Injunctive relief to prohibit a strike - specifically apply to judges, military personnel and managerial or confidential employees within the meaning of the Taylor Law. Presumably these provisions would not apply to Section 236(2)(d) hearing examiners as the incumbents of such positions are not employees of the jurisdiction in which they serve.

Ability to perform “light duty” defeats accidental disability retirement claim

Ability to perform “light duty” defeats accidental disability retirement claim
Matter of Roache v Hevesi, 38 AD3d 1036

Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.

Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.

Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.

The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.

The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."

The legal distinction between domicile and residence

The legal distinction between domicile and residence
Maksym v Board of Election Commissioners, appeal from 2010 COEL 020, #1-1-0033

Rahm Emanuel’s claim that he is eligible to run for the office of Mayor for the City of Chicago will be considered by the Illinois State Supreme Court shortly. Essentially the case will decide if the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code means “domicile” or something other than "domicile."

In the words of the Appellate Court of Illinois, First Division:

As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally means, among other things, "to dwell permanently or continuously," or to "have a settled abode for a time." Webster’s Third New International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode." Webster’s Third New International Dictionary 1931 (1993).

This suggests that Webster's Third may have created some confusion insofar as the traditional legal distinctions between “domicile” and “residence” are concerned.

Perhaps the provisions set out in Illinois Title 86: Revenue, Chapter I: Department of Revenue, Part 100 Income Tax, Section 100.3020 Resident (IITA Section 301) may be illuminating in this regard.

Section 100.3020 Resident (IITA Section 301) states that the term "resident" means an individual who is in Illinois for other than a temporary or transitory purpose during the taxable year or who is domiciled in Illinois but is absent from Illinois for a temporary or transitory purpose during the taxable year. The Title also states that “If an individual is domiciled in Illinois, he remains a resident unless he is outside Illinois for other than temporary or transitory purposes.”

The term “domicile,” states the statute, “has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, the place to which he intends to return whenever he is absent. It is the place in which an individual has voluntarily fixed the habitation of himself and family, not for a mere special or limited purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home.

Examples provided by the Illinois Department of Revenue distinguishing between residence and domicile include the following:

1. Another definition of "domicile" consistent with the above is the place where an individual has fixed his habitation and has a permanent residence without any present intention of permanently removing therefrom.

2. An individual can at any one time have but one domicile. If an individual has acquired a domicile at one place, he retains that domicile until he acquires another elsewhere.

3. Thus, if an individual, who has acquired a domicile in California, for example, comes to Illinois for a rest or vacation or on business or for some other purpose, but intends either to return to California or to go elsewhere as soon as his purpose in Illinois is achieved, he retains his domicile in California and does not acquire a domicile in Illinois. Likewise, an individual who is domiciled in Illinois and who leaves the state retains his Illinois domicile as long as he has the definite intention of returning to Illinois.

4. On the other hand, an individual, domiciled in California, who comes to Illinois with the intention of remaining indefinitely and with no fixed intention of returning to California loses his California domicile and acquires an Illinois domicile the moment he enters the state. Similarly, an individual domiciled in Illinois loses his Illinois domicile: 1) by locating elsewhere with the intention of establishing the new location as his domicile, and 2) by abandoning any intention of returning to Illinois.”

A similar issue was considered by New York State's Court of Appeals in Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385.*

In Longwood the court said that:

On this appeal, we decide which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother. The question is governed by Education Law §3202 (4) (a), and the outcome turns on where the children "resided" within the meaning of the statute.

Because the term is undefined, we must determine whether it means mere physical location or also includes an element of permanency. We hold that, under the statute, physical presence alone does not qualify as "residence," and therefore conclude that the Springs Union Free School District—the children's last permanent residence—is responsible for their instructional costs. "

The court explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."

An early decision by the Illinois State Supreme Court is expected.

The Maksym decision by the Illinois Appellate Court is posted on the Internet at:
http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/January/1110033.pdf

* The Longwood decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2004/2004_00962.htm

Civil Service Commission’s disqualification of candidate for failure to cooperate in a background investigation for appointment sustained

Civil Service Commission’s disqualification of candidate for failure to cooperate in a background investigation for appointment sustained
Matter of Rodriguez v County of Nassau, 2011 NY Slip Op 00384, Appellate Division, Second Department

The Nassau County Civil Service Commission wrote to Sebastian E. Rodriguez a candidate for appointment as a Nassau County Correction Officer, advising him that he had been "disqualified for . . . failure to cooperate with [his] background investigation." The Commission also told Rodriguez that he had the right to "make explanation and to submit facts in opposition to such disqualification."*

The Commission’s action followed Rodriguez’s failing to contact the Nassau County Police Department after he was told that the Department was investigating his character and background to determine his eligibility for the position of Correction Officer.

Rodriguez was told to call the Department to receive further information and schedule an appointment. The letter also stated “If you fail to contact [the Correction Department’s official] by May 5, 2008, your application may be discontinued." In addition, a Department official left four voice messages on Rodriguez’s cell telephone’s voicemail in an attempt to contact him.

Rodriguez responded to the Commission’s letter claiming that [1] he never received the Department’s letter and [2] that because he did not regularly use his cellular telephone, he was unaware of the voice messages until the week of June 2, 2008. The Commission, after reviewing the matter, advised Rodriguez that it had decided to uphold the original disqualification notification.

Rodriguez filed a petition pursuant to CPLR Article 78 arguing that the Commission’s decision to disqualify him as a candidate for appointment as a correction officer was "arbitrary and capricious and without just cause or good sound reason."

The Supreme Court granted Rodriguez’s petition, explaining that there was no "rational reason" why the Nassau County Police Department did not attempt to contact Rodriguez either through his previously provided home or work telephone numbers, and that the County officials had failed to explain how the his delay "adversely affected the application process."

The Appellate Division reversed the Supreme Court’s decision, explaining that "[I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious.”

Further, said the Appellate Division, “the Commission's determination to disqualify [Rodriguez] based upon [his] failure to timely schedule the background interview was neither irrational nor arbitrary.”

* §50.4 of the Civil Service Law sets out the reasons for which the state civil service department or a municipal commission may refuse to examine an applicant, or after examination to certify an eligible for appointment to the position being sought, and the due process procedures available to the disappointed applicant wishing to object to the department's or a municipal commission's determination.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00384.htm

Employee’s being on medical leave and continuing to receive employee benefits defeats the employee’s claim of constructive termination

Employee’s being on medical leave and continuing to receive employee benefits defeats the employee’s claim of constructive termination
Keehle v Diocese of Syracuse, 2011 NY Slip Op 00145, Appellate Division, Third Department

Minnie Keehle was employed by the Diocese of Syracuse and assigned to teach at a school in St. Joseph's Parish in the Village of Endicott, Broome County.

Claiming that the school principal made her working conditions so intolerable that she could no longer teach and was forced to give up her position, Keehle sued the Diocese for “breach of contract," contending that the school principal made it impossible for her to "continue her employment,” and she had been "effectively terminated."

The Diocese, in rebuttal, argued that Keehle was still its employee and that she had neither resigned nor been terminated.

Supreme Court granted the Diocese’s motion dismissing Keehle’s petition and the Appellate Division affirmed the lower court’s decision.

The Appellate Division said that accepting all of Keehle’s allegations as true and gibing her the benefit of “every possible favorable inference” Keehle failed to demonstrate that she was constructively discharged from her position because of the conditions that existed in the work place.

The court said that the evidence introduced by the Diocese demonstrated that Keehle had not resigned from her position and it had not terminated her. Rather, said the Appellate Division, Keehle continued to receive employee benefits, including disability and sick pay, as well as health insurance and the record “conclusively established” that she was still in the employ of the Diocese of Syracuse. “albeit on medical leave.”

Accordingly, the Appellate Division said that Keehle’s complaint was properly dismissed by Supreme Court.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00145.htm

Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2

Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2
MacRae v Dolce, 273 AD2d 389; motion for leave to appeal denied: 95 NY2d 765

Duncan MacRae, in his capacity as president of the City of White Plains firefighters union, challenged the Fire Department’s policy of routinely ... assigning ... fire fighters to perform the duties of an ‘Officer/Designated Fire Fighter’ as described in the [Fire Department’s] Manpower Accountability Standard Operating Procedure [MASOP] as constituting out-of-title work.

Essentially, MacRae complained that the City of White Plains was assigning its firefighters to perform the duties of a Fire Lieutenant in non-emergency situations.

A State Supreme Court justice dismissed complaint, ruling that the department’s policy was proper and does not violate Article V, Section of the New York Constitution or Section 61.2 of the Civil Service Law. The ruling did not pass muster when the Appellate Division considered MacRae’s appeal.*

The Appellate Division reversed the lower court’s ruling and barred White Plains from routinely assigning its firefighters to perform the duties of fire lieutenant on a non-emergency basis.... The Appellate Division, agreeing with MacRae, held that the City’s policy of routinely assigning firefighters to perform the duties of fire lieutenant on a non-emergency basis violates Civil Service Law Section 61.2.

The court said that the policy provided for the routine, non-emergency imposition upon firefighters of supervisory duties not in their job description and required firefighters to routinely perform supervisory functions clearly within the ambit of the job description applicable to fire lieutenants.**

The court rejected the department’s argument that the MASOP merely codified a long-standing practice of requiring motor and pump operators to perform certain of the duties of fire lieutenants, commenting that the routine temporary assignments improperly harden to a pattern for permanently filling the positions of fire lieutenant.

* Section 61.2 provides as follows: Prohibition against out-of-title work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

** In contrast, the designation of an individual to serve as the “temporary supervisor” when the supervisor is temporarily absent when on vacation or ill is not considered “out-of-title” work within the meaning of Section 61.2.