State Comptroller DiNapoli proposes legislation providing for the forfeiture of pension benefits of members guilty of “Abuse of Public Trust”

State Comptroller DiNapoli proposes legislation providing for the forfeiture of pension benefits of members guilty of “Abuse of Public Trust”
Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli has proposed the introduction of legislation providing for the forfeiture of pension benefits* if certain members of the System are found guilty of committing a felony related to the performance of their official duties.

DiNapoli’s bill also imposes a penalty up to twice the amount a public official benefited from the commission of a crime committed in the course of his or her performace [or presumably, an ommission] of his or her public duty.

DiNapoli, noting State Constitution’s prohibitions against any diminishment of retirement benefits for current public officials and public servants, indicated that the pension forfeiture provisions in the proposed bill would apply only to indiviuals becoming members of the Retirement System after the measure's effective date.

The proposed bill is posted on the Internet at:
http://osc.state.ny.us/press/releases/jan11/forfeiture.pdf.

As to the issue of a public officer or employee forfeiting retirement benefits under certain conditions, in Castro v Safir, 291 A.D.2d 212** the basic issue concerned the fallout of New York City police officer Antonio Castro's dismissal prior to the effective date of his retirement. If he was so lawfully dismissed, any pension benefits to which he would otherwise be entitled would be forfeited pursuant to Section 13-173.1 of the New York City Administrative Code.***

Section 13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.

Castro was terminated from his position following a "second arrest." As a result he became ineligible for the ordinary disability retirement benefits for which he had applied. He sued, contending that the Department had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had previously found Castro eligible for ordinary disability retirement.

According to the decision, Castro was terminated after he had applied for ordinary disability retirement but before he was actually retired for disability.

The Appellate Division ruled that Castro had forfeited his pension benefits as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.

This conclusion by the Appellate Division appears to parallel the Court of Appeals holding in its Waldeck and Barbaro rulings wherein the Court of Appeals said that Section 13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits. [Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.]

Waldeck and Barbaro challenged the forfeiture of their respective retirement benefits on the ground that they had not been advised of the effective dates of their respective discharges from employment after being found guilty of disciplinary charges filed against them.

Both Waldeck and Barbaro had been terminated prior to their intended dates of voluntary resignation. Did this mean that they could not vest their retirement benefits and thus those benefits would, in effect, be forfeited? In a word -- yes!

The Court of Appeals said that Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory authority, and thus the fact that neither Waldeck nor Barbaro were aware that they had been terminated prior to the effective date of their respective resignations "has no relevance to the effective date of termination from employment under Section 13-173.1."

According to the decision, there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested within the meaning of Section 13-173.1 of the Code.

* If enacted into law, this presumably could result in the forfeiture of the pension portion of the individual's retirement allowance but that portion of the individual's retirement allowance attributed to his or her "employee contributions" would be refunded.

** See, also, Cipolla v. Kelly 26 A.D.3d 171, wherein the court held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [the individual’s] termination was in bad faith.”

*** As a police officer, Castro was a "public officer." He was also a public employee, as although not all public employees are public officers, all public officers are public employees.

Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing

Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing
Matter of Toolasprashad v Kelly, 2011 NY Slip Op 00419, Appellate Division, First Department

The Toolasprashad decision demonstrates that evidence that the accused individual was properly served with the notice a scheduled disciplinary hearing may become a critical element in the proceeding.

Rudranu Toolasprashad was terminated from his position following a disciplinary hearing that was held notwithstanding his failing to appear at the designated time and place.

Toolasprashad filed a petition seeking to annul his dismissal, which Supreme Court granted “to the extent of remanding the matter to respondents for a full hearing on proper notice to [Toolasprashad].” The Appellate Division affirmed the Supreme Court’s decision.

The Appellate Division noted that the hearing officer found that Toolasprashad failed to appear for the hearing was without good cause, this finding was based on the Department representation that had made “diligent efforts to serve [Toolasprashad] with the charges against him and to notify him of the hearing and that [Toolasprashad] had not provided proper contact information in Peru, where he was on leave.”

While this may have otherwise been sufficient, the court said that the record indicated that “the sole evidence of [the Department’s] attempted service in Lima was counsel's hearsay representations.”

Accordingly, the Appellate Division ruled that the hearing officer’s determination that Toolasprashad’s failure to appear “was without good cause” lacked the requisite proof, citing People ex rel. Griffin v Walters, 83 AD2d 618.

Although the Department argued that “the technical rules of evidence need not be complied with in disciplinary proceedings before administrative bodies,” the court said that the deficiency in the proof of the Department’s efforts to effect service in Lima “goes beyond the lack of technical compliance.”

The court also called attention to the Rules of City of New York Police Department (38 RCNY) §15-03 which, in pertinent part, required that "[s]ervice of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the respondent" and that "[a]ppropriate proof of service shall be required."

Thus, concluded the Appellate Division, the Department failed to comply with its own stated obligation to provide Toolasprashad with the required notice of the time and place of the disciplinary hearing. Accordingly, said the court, the hearing officer’s decision to go forward with the disciplinary hearing in Toolasprashad's absence was arbitrary and capricious.

The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted." Unlike the issue in Toolasprashad, i.e., was the accused employee properly served, in Mari the Appellate Division pointed out that “[Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."

The Toolasprashad decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00419.htm

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Constitutionally protected speech

Constitutionally protected speech
Bradley v. James USCA, 8th Circuit, 2007 U.S. App. Lexis 4781

In the course of an official investigation of an incident involving students in possession of firearms, Arch Bradley, a police captain, alleged that his chief of police chief, Larry James, was intoxicated while on duty at the time of the incident. As a result, Bradley was terminated from his position.*

Bradley sued, claiming that his speech was protected by the First Amendment and thus his termination was unconstitutional.

The Circuit Court disagreed; holding that Bradley’s statement concerning Chief James’ alleged intoxication was made in the context of his official duties – in the course of an official investigation of a law enforcement incident -- and therefore not constitutionally protected.

The legal issue, said the court, is essentially “did the employee speak as a citizen on a matter of public concern?” If the answer to the question is no, the employee does not have a First Amendment cause of action as a result of his or her employer’s taking adverse personnel action against the employee because of the speech.

Here, said the court, Bradley’s speech was made “pursuant to [his] official responsibilities.” As a police officer, Bradley had an official responsibility to cooperate with the investigation incident. His allegation that Chief James was intoxicated when the student incident occurred was made at no other time than during the subsequent investigation of that event. Thus, ruled the Circuit Court, Bradley’s speech was uttered in the course of his performing his official and professional duties. Accordingly, it was not constitutionally protected speech for the purposes of his First Amendment claim.

The Circuit Court affirmed the federal district court’s dismissal of Bradley’s complaint.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/protected-speech.html

* Bradley was sent a letter that included the following statements: “Your inaction on February 6th and your unsubstantiated comments about Chief James are both terminable offenses.” The letter offered Bradley the opportunity to retire or be terminated. Bradley did not respond. Bradley was then sent a letter dismissing him from his position for “deliberate or gross neglect of duty” during the incident. Bradley’s allegation that Chief James was intoxicated at the time of the incident was not mentioned in the letter.

California’s Supreme Court confirms longstanding California rule concerning employee layoffs

California’s Supreme Court confirms longstanding California rule concerning employee layoffs
IAFF, Local 188 vs. Public Employment Relations Board [City of Richmond (Real Party in Interest),] California Supreme Court No. S172377

Source: Meyers Nave PLC. -- The Public Blog, posted at http://www.publiclawnews.com/public_law_news/2011/01/ -- Reproduced with permission. Copyright © 2011, Meyers Nave. All rights reserved

"On Monday, January 24, 2011, the California Supreme Court issued an opinion regarding an employer's duty to bargain under the Meyers-Milias-Brown Act ("MMBA") in connection with layoffs. The opinion was authored by Acting Chief Justice Kennard, with a concurring and dissenting opinion filed by Justice Baxter.

"The Bottom Line: The Supreme Court simply affirmed a longstanding rule - that there is no duty to bargain over an employer's decision to layoff, but there is a duty to bargain over the implementation and effects of the decision. This has been the ongoing advice of labor attorneys for years. There is no new law in this decision that should cause public employers to change their practices.

"Discussion: Since approximately 1974, it has been the rule in California that public employers need not negotiate with labor unions about the decision to initiate layoffs. However, public employers must negotiate concerning the effects or impacts of the layoffs. The City of Richmond observed this advice in connection with firefighter layoffs, and the Fire Union claimed that the failure to negotiate constituted an unfair practice under the MMBA.

"This case affirms the rule. The Court expressly states: "We now reaffirm this rule. Under the MMBA, a local public entity that is faced with a decline in revenues or other financial adversity may unilaterally decide to lay off some of its employees to reduce its labor costs. In this situation, a public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." (Op. at 19.)

"One additional aspect of the opinion is to define the criteria for permitting review of a decision by the [California] Public Employment Relations Board ("PERB"). The Court agreed with the court of appeal that when PERB refuses to issue a complaint under the MMBA, a superior court may review the decision by mandamus. The review is limited to determining "whether PERB's decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction."

"Justice Baxter dissented from this portion of the opinion.

"For more information about this case or other labor and employment matters, contact Art Hartinger at 800.464.3559."

The Doctrine of Nullification claimed as authority to obviated recent federal health care legislation

The Doctrine of Nullification claimed as authority to obviated recent federal health care legislation

State lawmakers in Alabama, Idaho, Kansas, Maine, Missouri, Montana, Oregon, Nebraska, Texas and Wyoming are considering adopting legislation to avoid the federal government’s efforts to “overhaul health care” pursuant to the so-called Doctrine of Nullification.

The Doctrine, attributed to President Thomas Jefferson among others, purports to give States the ultimate authority insofar as the implementation of acts of Congress is concerned and is typically linked to the 10th Amendment of the United States Constitution. The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

A book printed by the U.S. Government Printing Office, The Constitution of the United States of America [Analysis and Interpretations, 1964], and prepared by the Legislative Reference Service of the Library of Congress, states that “The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted” with respect to the division of power between the federal government and the States.

As to the Doctrine of Nullification,* the United States Supreme Court, in the context of a 14th Amendment school desegregation case,** rejected the concept, stating that "Although ‘the responsibility for public education is primarily the concern of the States ..., such responsibilities ... must be exercised consistently with federal constitutional requirements as they apply to state actions.’ Consequently, ‘a Governor who asserts a power to nullify a federal court order’ implementing that ruling is subject to judicial restraint, for otherwise ‘the fiat of a State Governor and not the Constitution ... would be the supreme law of the land..."

* See The Constitution of the United States of America, U.S.G.P.O., Page 1035, Footnote 2.

** Cooper v Aaron, 358 US 1, 18-19, [1958].

Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago

Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago
Walter P. Maksym Et Al. , Appellees, v The Board of Election Commissioners of the City of Chicago, Supreme Court of the State of Illinois, Docket No. 111773.

Reversing the Appellate Court, the Illinois Supreme Court essentially equated the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code to “domicile.”* The court, noting that “until just a few days ago, the governing law on this question had been settled in this State for going on 150 years,” citing Smith v. People ex rel.Frisbie , 44 Ill.16 (1867), sustained the decision of Chicago's Board of Elections that Rahm Emanuel was eligible to run for the office of Mayor of the City of Chicago.

The Supreme Court explained that “in assessing whether the candidate has established residency, the two required elements are: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Once residency is established, the test is no longer physical presence but rather abandonment, the presumption is that residency continues, and the burden of proof is on the contesting party to show that residency has been abandoned. Both the establishment and abandonment of a residence is largely a question of intent, and while intent is shown primarily from a candidate’s acts, a candidate is absolutely competent to testify as to his intention, though such testimony is not necessarily conclusive.”

* NYPPL earlier suggested that “Essentially the [Illinois Supreme Court] will decide if the term “residence” as used in §3.1-10-5(a) of [Chicago's] Municipal Code means “domicile” or something other than "domicile” [see http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html ]

The decision is posted on the Internet at:
http://www.scribd.com/doc/47691816/Illinois-Supreme-Court-Decides-Rahm-Emanuel-Can-Run-in-Chicago-Mayoral-Election?DCMP=NWL-cons_breakingdocs

Extending the probationary period

Extending the probationary period
Subway-Surface Supervisors Assn. v New York City Tr. Auth., 2010 NY Slip Op 52339(U), Supreme Court, New York County, Judge Saliann Scarpulla, [Not selected for publication in the Official Reports.]

Subway-Surface Supervisors Association brought an action seeking to have the court void “stipulations of settlement” between the Association and the Authority.

The Association and the Authority had to increase the one-year probationary term for certain employees upon their promotion to a Supervisor position to a two-year probationary period. Shortly before the expiration of their two-year probationary periods, these Supervisors entered into a settlement agreement with the Transit Authority after the Authority had determined that had taken “excessive sick leave during their two-year probationary period.”

As probationary employees, the Supervisors were not entitled to a disciplinary hearing concerning the sick leave violations and each agreed to serve a two year disciplinary probation during which any violation of time and leave would result in dismissal.

The Association argued that the Supervisors already served the maximum amount of probation and further extension was not permitted under Title 55 of the Rules of the City of New York, Section 5.2.8.* In addition, the Association claimed that the Transit Authority failed to get “written authorization to extend the probationary period from the Commissioner of Citywide Administrative Services.” Finally, the Association contended that even if the extension was permitted, its length was “impermissible.”

The Authority, on the other hand, claimed that it had found that Supervisors had unsatisfactory attendance or excessive absenteeism and although these problems were. serious enough to justify their termination, it decided to give them a last chance to salvage their promotions. This, said the Authority, resulted the Supervisors agreeing to a last chance settlement that would allow them to keep their promotions by agreeing to a two-year disciplinary probation.

During that two-year disciplinary probation, any further time and leave violations would result in their dismissal should the arbitrator find that they had committed such further violations.

Supreme Court found that the Stipulations were not “an extension of any probationary period” but constituted a separate probation imposed for disciplinary purposes, freely entered into by the Supervisors.

* The general rule with respect to extensions of the probationary period for employees in the Classified Service is that in the event a probationary employee is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974]. For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that with respect to employees of the State as an employer, “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_52339.htm