Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer

Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer
Matter of Cohen v New York State & Local Employees' Retirement Sys., 2011 NY Slip Op 01109, Appellate Division, Third Department

This decision by the Appellate Division illustrates the importance of the administrative hearing officer considering, and ruling on, all of the arguments and theories submitted by a petitioner in the course of an administrative hearing.

Morton A. Cohen, Esq., was employed as an Administrative Law Judge by the New York City Parking Violations Bureau [PVB] from 1998 to 2006.

In 2007, Cohen, then a member of the New York State Employees’ Retirement System [ERS], attempted to "buy back" his time with the PVB for members service credit in ERS.

An ERS Hearing Officer found that Cohen failed to establish entitlement to prior service credit for his service with the PVB and the State Comptroller accepted the Hearing Officer’s findings and conclusions, prompting Cohen to file an Article 78 petition seeking to overturn the Comptroller’s decision.

The Appellate Division noted that Retirement and Social Security Law §609(b)(1) provides that "[a] member shall be eligible to obtain retirement credit hereunder for previous service with a public employer . . . if such service . . . would have been creditable in one of the public retirement systems of the state."

Accordingly, said the court, Cohen’s entitlement to prior service credit is dependent on whether he was eligible for membership in the New York City Employees' Retirement System [NYCERS]. Further, said the court, the Administrative Code of the City of New York §13-104(1) provides, in relevant part, that membership in NYCERS "shall consist of . . . [a]ll persons in city-service."

"City-Service" is defined as "service, whether appointive or elective, as an officer or employee of the city or state of New York . . . so far as such service is paid for by the city" (Administrative Code of the City of New York §13-101[3][a]).

Noting that the State’s Vehicle and Traffic Law §236(2)(d) provides, in pertinent part, that "hearing examiners [of a parking violations bureau] shall not be considered employees of the city in which the administrative tribunal has been established," the Appellate Division ruled that substantial evidence supports the finding that Cohen was not an "employee" of the City of New York.

However, the court vacated the Comptroller's determination and remit the matter for further findings of fact “because the Hearing Officer failed to address [Cohen’s] claim that he was eligible for prior service credits as an ‘officer.’"

Cohen had specifically argued that, even if not an "employee," he should be considered an "officer" of the City of New York due to the powers, duties and overall nature of his position as a hearing examiner with the PVB.*

The Appellate Division said that “the failure to address [Cohen’s] contention that he was an "officer" of the City of New York prevented it from assessing whether the Comptroller’s denial of Cohen’s application was rational.

NYPPL has summarized other cases involving the denial of claims based on a finding that the individual “was not an employee of a public entity” or was “an employee of a non-public entity” at:

http://publicpersonnellaw.blogspot.com/2011/01/individuals-performing-services-for_27.html

and

http://publicpersonnellaw.blogspot.com/2011/02/compensation-paid-to-member-of-public.html

* Unless otherwise provided by law, while not all employees of a public entity are “officers,” “officers” of a public entity are “employees” of that entity.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01109.htm
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Article 78 action held the appropriate vehicle to test a public employer’s administrative determination, or failure to act

Article 78 action held the appropriate vehicle to test a public employer’s administrative determination, or failure to act
Adams v The City of New York, 271 AD2d 341

Typically, challenges to action or inaction by a governmental agency are brought pursuant to Article 78 of the Civil Practice Law and Rules. There appears, however, to be a flurry of breach of contract cases filed against the City of New York in contrast to filing Article 78 petitions.*

For example, in the Adams case the Appellate Division, First Department ruled that while Adams’ complaint was pleaded as an action sounding in breach of contract and sought a court order requiring the City to adjust the salaries of certain of its employees, the relief actually being sought is to compel [the City] to discharge a duty in conformity with its personnel policies and procedures. As this action was in the nature of mandamus, the court held that Adams’ lawsuit was subject to the procedural requirements of Article 78, i.e., a four-month statute of limitations for bringing such actions.

The critical element for bringing a timely Article 78 action is the date on which the administrative determination or action is deemed final.

The court pointed out that in Adams’ case there were two additional factors to consider: whether the action sounds in mandamus [an action seeking to compel the performance of an official act] or in the nature of certiorari [an action seeking to review an administrative decision, i.e., an appeal].

According to the Appellate Division, in order to file an Article 78 action for mandamus relief, it is necessary to make a demand and await a refusal. The limitations period does not commence until the date of the refusal i.e., the Statute of Limitations begins to run from the date of the refusal. In certiorari cases, the Statute of Limitations begins running on the date on which the final administrative determination is made.**

In any event, if the governmental agency being sued wishes to plea the affirmative defense that the plaintiff’s action is untimely, it must plea and prove that the Article 78 action was not commenced until after the Statute of Limitations had expired.

Commenting that here the City failed to prove the date when agency action was final, the Appellate Division held that the finality necessary to commence the limitations period has not been established and thus Adams’ petition remains viable. The Appellate Division, after converting the case into an Article 78 proceeding, remanded it to Supreme Court for its determination as to whether or not it was a timely Article 78 action.

* It may be that the breach of contract actions may have been filed in an effort to avoid the relatively short Statute of Limitations applicable in bringing an Article 78 action.

** In addition to mandamus and certiorari, Article 78 is the modern version of two other ancient writs: the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].

Authority of the arbitrator

Authority of the arbitrator
Kimball v Pine Plains CSD, 272 AD2d 332

Kimball involves two common proceedings brought pursuant to Article 75 of the Civil Practice Law and Rules [CPLR]: one to confirm an arbitrator’s award; the other to vacate the award. State Supreme Court Judge John R. LaCava had confirmed the award.

Affirming Judge LaCava’s ruling, the Appellate Division said that [a]n arbitration award may not be vacated unless it is irrational, violates a strong public policy, or clearly exceeds a limitation imposed on the arbitrator as set forth in CPLR 7511(b) or if the arbitrator exceeds his or her authority.

When does the arbitrator exceed his or her authority? When, said the Second Department, the arbitrator gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties. Here, said the court, the determinations made by the arbitrator were within his power and not irrational. Accordingly, the award was properly confirmed.

Requirements for defeating a motion for summary judgment

Requirements for defeating a motion for summary judgment
Mason v MTA - New York City Transit Authority, #05-4349-CV, US Circuit Court of Appeals, 2nd Circuit

Samuel Mason sued the Transit Authority alleging unlawful discrimination on the basis of age and race. When a federal district court judge granted the Authority’s motion for summary judgment dismissing his complaint, Mason appealed.

The Circuit Court of Appeals said that summary judgment is appropriate only when there are no material issues of fact to resolve and the moving party is able to demonstrate that it is entitled to judgment as a matter of law.

In contrast, Mason, as the party opposing summary judgment, judgment “may not rest upon mere allegation or denials of his pleading.” He “must set forth specific facts showing that there is a genuine issue for trial.”

The court said that assuming, but not deciding, Mason established a prima facie case of discrimination on the basis of age or race, it agreed with the district court that Mason failed to present credible evidence that the MTA’s proffered justifications for not promoting him – mediocre work performance and a relative lack of qualifications – constituted a pretext for discrimination.

According to the decision, Mason offered only conclusory allegations in support of his claim. Thus, said the court, Mason failed to carry his burden to “produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [Authority] were false, and that more likely than not [unlawful discrimination] was the real reason for the [employment action].”

Since he failed to do so, the Circuit Court said that the district court was correct in granting MTA’s motion for summary judgment.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/requirements-for-defeating-motion-for.html

Comptroller may select between conflicting medical opinions and his decision will be sustained if supported by substantial evidence in the record

Comptroller may select between conflicting medical opinions and his decision will be sustained if supported by substantial evidence in the record
Matter of Micalizzi v DiNapoli, 2011 NY Slip Op 00772, Appellate Division, Third Department

A police officer alleged that he harassed at work after he had publicly supported several fellow officers facing disciplinary action and further accused department officials of misconduct.

Following “a verbal and near-physical confrontation with a coworker” the officer took a medical leave of absence from work and eventually resigned from his position. He then filed an application for performance of duty disability and accidental disability retirement benefits with the New York State Employees’ Retirement System, asserting that the confrontation and related harassment had inflicted disabling psychological and related physical ailments.

His applications were disapproved and the officer requested a hearing. The Hearing Officer found that, among other things, the alleged psychological disability was not caused by the harassment and did not permanently incapacitate the individual from the performance of his law enforcement duties.

The Comptroller adopted the Hearing Officer’s findings and conclusions and denied the member’s applications and the individual appealed.

The Appellate Division said that “In order to obtain either accidental or performance of duty disability retirement benefits, ‘petitioner bore the burden of demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of an accident or disability sustained in service.’"

In this instance, said the court, the individual’s treating psychologist and doctor, as well as an independent psychologist, opined that he suffered from a psychological disability that arose out of the workplace harassment and permanently disabled him from performing the duties of a police officer.

However, the psychiatrist who examined the former officer on behalf of the New York State and Local Police and Fire Retirement System, while agreeing that the individual “suffered from a disability,” concluded that the disability would have arisen absent the alleged harassment and that factors outside of the individual’s duties as a police officer,” namely disciplinary proceedings resulting from his alleged improper recording of conversations with his coworkers, exacerbated it.

The System’s psychiatrist also indicated that the individual “could potentially resume work as a police officer if properly medicated and that a finding of permanency was not warranted based upon the medical evidence presented.”

The Appellate Division, confirming the Comptroller’s decision, said that the Comptroller was free to credit the System’s psychiatrist’s rational and fact-based opinion over other evidence in the record and that his determination was supported by substantial evidence.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00772.htm

Are employees required to file a written answer to Section 75 disciplinary charges?

Are employees required to file a written answer to Section 75 disciplinary charges?
A NYPPL analysis

Section 75.2 provides that the appointing officer must allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.*

From time to time a NYPPL reader will ask “If an individual does not file an answer to Section 75 charges and specifications that have been served on the individual, may his or her silence be deemed an admission permitting the appointing authority to impose the proposed disciplinary penalty without holding a disciplinary hearing?”

A close reading of Section 75 suggests that an employer’s deeming an employee’s failure to file an answer to Section 75 disciplinary charges an admission of the employee’s guilt would not survive judicial review.

Section 75 does not require that the employee submit an answer to disciplinary charges in contrast to its mandate that the appointing authority allow the individual at least eight days to file an answer to the disciplinary charges.

Accordingly, it appears that the accused individual may remain silent and appear at the hearing without having submitted any answer to the charges without jeopardizing his or her right to administrative due process.

Furthermore, Section 75.2, in pertinent part, places “the burden of proving incompetency, and, or misconduct shall be upon the person alleging the same.” In other words, the failure of an employee to offer an explanation or a defense does not absolve the employer of its obligation to prove the charges of incompetency, and, or misconduct served on an employee in an administrative hearing before imposing disciplinary sanctions.

It is well-settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold a hearing in absentia rather then to merely proceed to impose a penalty on the individual simply because of his or her failure to appear at the hearing as scheduled [see Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 613]. Further, the charging party must prove its case by presenting substantial evidence of the employee’s guilt in the course of the hearing.

Given the fact that the courts require employers to conduct a hearing if an employee fails to appear at the disciplinary hearing, it seems unlikely that the courts would approve imposing a penalty on an individual without holding a hearing simply because he or she failed to “answer” the charges.

Moreover, Section 75 does not require an employee to ask for a hearing -- it is to be provided as a matter of right. Section 75 also requires that a transcript of the hearing be provided to the employee free of charge.

N.B. In contrast, Section 3020-a(2) of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires the individual request a hearing within 10 days after being served disciplinary charges [see Education Law Section 3020-a(2), subdivisions (c) and (d)]. The individual’s unexcused failure to request such a hearing permits the appointing authority to impose the proposed penalty without holding a disciplinary hearing.

Most alternative disciplinary procedures negotiated pursuant to the Taylor Law follow the Section 3020-a model. Typically, if the employee fails to file a timely “disciplinary grievance,” the collective bargaining agreement usually authorizes the appointing authority to impose the penalty proposed in the “notice of discipline” served on the individual without further action on its part and without referring the matter to arbitration.

* Section 75.2, in pertinent part, provides: “A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing.”

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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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