Employee terminated for falsifying attendance records and other misconduct

Employee terminated for falsifying attendance records and other misconduct
Dinnocenzo v Lackawanna, 270 AD2d 840

In Dinnocenzo the Appellate Division, Fourth Department, sustained the termination of an employee found guilty of falsifying his time records and other offenses.

James Dinnocenzo was charged, and found guilty, of disciplinary charges alleging misconduct and insubordination. Among the specifications:

1. Unauthorized absence from work;

2. Failure to obey his superior’s orders to report his absences; and

3. Submitting time sheets falsely indicating the hours that he was present at work.

Finding that there was substantial evidence in the record to support the findings of guilt, the court said that in light of all the circumstances, the penalty of dismissal was not so disproportionate to the misconduct as to be `shocking to one’s sense of fairness’ -- the Pell doctrine [Pell v Board of Education, 34 NY2d 222].

As to Dinnocenzo’s testimony concerning the reason for his absences and minimizing the length of those absences, this, said the court, raised an issue of credibility for the Hearing Officer to resolve. The Hearing Officer apparently was not persuaded by Dinnocenzo’s efforts to explain his actions.
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Rebutting a statutory presumption

Rebutting a statutory presumption
Hutnik v Kelly, 37 AD3d 346

New York City police officer John Hutnik applied for accident disability retirement benefits pursuant to Section 207-k of the General Municipal Law. Section 207-k creates a rebuttable presumption that Hutnik’s “heart-related disability” underlying his application for accidental disability retirement benefits was service-related.

In this instance the Appellate Division found that this statutory presumption was “rebutted by credible evidence” that Hutnik did not suffer from a heart-related disability, notwithstanding his personal physician’s opinion to the contrary. As there was no other evidence or claim presented by Hutnik as to any other possible cause for the medical condition underlying his claim, the Appellate Division sustained the rejection of his application for accidental disability retirement benefits.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/rebuttable-presumption.html

Failure to exhaust the available administrative remedy to challenge a determination held a fatal defect in seeking judicial relief

Failure to exhaust the available administrative remedy to challenge a determination held a fatal defect in seeking judicial relief
Matter of Connor v Town of Niskayuna, 2011 NY Slip Op 01556, Appellate Division, Third Department

A number of police officers submitted applications for membership in the New York State and Local Retirement System. Although advised of the availability of two optional retirement plans available to them pursuant to §§384 and 384-d of the Retirement and Social Security Law, and that an election to become a member of either optional retirement plan must be filed within one year of becoming a police officer or member of the Retirement System, none of the police officers in this action filed an election to become a member of either of the two optional plans when they submitted their applications. Accordingly, they were automatically enrolled in the retirement plan provided by Retirement and Social Security Law §375-c.

The police officers subsequently filed an application for enrollment in the §384-d retirement plan. The Comptroller, however, issued a written determination declining to process their respective applications because the statutory one-year election period had expired.

The police officers involved then commenced this CPLR article 78 proceeding seeking to compel the Comptroller to accept their applications and to make all contributions required in connection with their membership in the §384-d plan. Supreme Court dismissed the petition on the ground that the police officers failed to exhaust their administrative remedies.

The Appellate Division affirmed the lower court’s ruling, pointing out “It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law," citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52.

Here, said the court, the Retirement and Social Security Law sets out the procedure for challenging a retirement benefit determination made by the Comptroller whereby the disappointed individual is to request a hearing and redetermination and then, upon final determination of the Comptroller, he or she commence a CPLR Article 78 proceeding.

In this instance, despite their dissatisfaction with the Comptroller's decision to reject their applications as untimely, the police officers failed to avail themselves of the proceedures set out in Retirement and Social Security Law §374(d).* The Appellate Division said that that the Comptroller's written refusal to process their applications constituted a "determination" within the meaning of Retirement and Social Security Law §374(c).

As the police officers could have challenged the rejections of their respective applications by requesting a hearing and redetermination, they failed to do so. Accordingly, Supreme Court correctly dismissed their Article 78 petition for failure to exhaust the administrative remedies available to them by statute.

*§374.d provides, in pertinent part, that: “At any time within four months … the applicant or his [or her] counsel may serve a written demand upon the comptroller for a hearing and redetermination of such application. … The comptroller shall have the same power upon such hearing as upon the original application. After such hearing the comptroller shall make his final determination. A copy thereof shall be mailed to the applicant and his [or her] counsel, if any. Such final determination shall be subject to review only as provided in article seventy-eight of the civil practice law and rules.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01556.htm
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FMLA does not cover faith healing trip

FMLA does not cover faith healing trip
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.

Tayag v. Lahey Clinic, ____F.3d____(1st Cir. Jan. 22, 2011), is both an interesting and important case. The First Circuit held that a company that fired a woman for taking unapproved time off to accompany her husband on a “faith healing” trip did not violate the federal Family and Medical Leave Act. The circuit agreed with a lower court's finding that the trip, a seven-week “healing pilgrimage” was not protected under the statute “because it was effectively a vacation.” Such travel is not “medical care” as defined by the FMLA, 29 U.S.C. §2601.

Mitchell H. Rubinstein

NYPPL Comments: In Sanni v NYS Office of Mental Health [USDC, EDNY, decided February 15, 2000], “faith healing” was one of the issues in a disciplinary action.

Thomas Sanni, then employed in a grade 27 project director position at Kings Park Psychiatric Center, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law.

Ultimately a hearing officer found Sanni guilty of 11 of the 14 charges filed against him. Among the charges for which Sanni was found guilty: “Improperly participating in and supporting the decision to employ the minister of [Sanni’s] church to exorcise a patient 'possessed by spirits.'”
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Employer’s “one-strike rule” denying employment to applicants who test positive for drug or alcohol use did not have an unlawful disparate impact on rehabilitated drug addicts
Source: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com/ . Reproduced with permission. Copyright© CCH 2011, All rights reserved.

Rejecting disparate treatment and disparate impact claims brought under the ADA and California Fair Employment and Housing Act (FEHA) by a former drug addict who was denied a longshoreman’s job, a divided Ninth Circuit panel upheld the Pacific Maritime Association’s “one-strike rule,” which automatically eliminates from consideration job applicants who test positive for drug or alcohol use (Lopez v Pacific Maritime Assoc, 09-55698 March 2, 2011). Not only was it lawful for the employer association to eliminate applicants who were using drugs when they applied to be longshore workers, it was also permissible to disqualify those applicants permanently, the appeals court [Judge Pregerson dissented in part] held, affirming summary judgment to the employer association.

While the one-strike rule imposes a harsh penalty, and many people question the rule’s reasonableness in light of the fact that many drug users later rehabilitate themselves, “unreasonable rules do not necessarily violate the ADA or the FEHA,” the majority wrote.

The employer association represents shipping lines, stevedore companies, and terminal operators that run the ports along the west coast, negotiating bargaining agent and administering payroll and hiring policies. One of those policies is the one-strike rule, under which the association rejects outright any job applicant who tests positive for drug or alcohol use during the pre-employment screening process. Applicants are notified at least seven days in advance of administering the drug test. Failing the drug test, even once, disqualifies an applicant permanently from future employment.

The plaintiff first applied for a longshoreman position in 1997 at a Long Beach, California port. At that time, however, he suffered from an addiction to drugs and alcohol, and tested positive for marijuana at the time of his drug test; he was therefore disqualified from further consideration under the one-strike rule. He became clean and sober in 2002 and, in 2004, reapplied to be a longshoreman. However, because of the one-strike rule, his application was rejected. He attempted to appeal, but the employer does not entertain appeals from disqualifications arising from positive drug tests. This action followed, alleging the employer violated the ADA and the FEHA by discriminating against him on the basis of his protected status as a rehabilitated drug addict. The Ninth Circuit affirmed the district court’s grant of summary judgment to the employer.

Disparate treatment. The plaintiff asserted three arguments in support of his disparate treatment claim, none of which prevailed. First, he claimed the one-strike rule facially discriminates against recovering or recovered drug addicts. The appeals court disagreed. “The rule eliminates all candidates who test positive for drug use, whether they test positive because of a disabling drug addiction or because of an untimely decision to try drugs for the first time, recreationally, on the day before the drug test,” the appeals court reasoned. “Conversely, the rule allows a drug addicted applicant who happens to be sober at the time of the drug test to complete pre-employment processing successfully. . . The triggering event for purposes of the one-strike rule is a failed drug test, not an applicant’s drug addiction.” The majority cited the Supreme Court’s 2003 opinion in Raytheon Co v Hernandez in support. There, the Court held that an employer’s policy not to rehire workers who lost their jobs due to drug-related misconduct constituted a neutral, nondiscriminatory reason for refusing to rehire an aggrieved employee.

Next, the plaintiff argued that the employer adopted the one-strike rule intentionally to exclude recovering and recovered drug addicts from its workforce. However, the record belies that allegation, the appeals court found. Before adopting the measure, the longshore industry suffered numerous serious accidents and injuries, including several fatalities. These incidents were attributed in part to a workplace culture that permitted drug and alcohol use. Conducting pre-employment drug screening in order to eliminate job applicants who would be more likely to use drugs or alcohol at work was a union-approved approach to these safety concerns. The employer decided to make permanent the disqualification of applicants who tested positive because it thought that applicants who could not abstain from using an illegal drug, even after receiving advance notice of an upcoming drug test, showed less responsibility and less interest in the job than applicants who passed the drug test. As such, there was no evidence that the employer rejected applicants who tested positive based on a calculation that an applicant might test positive because of a drug addiction, rather than because of recreational use.

Finally, the plaintiff contended, summary judgment was in error because the employer only learned of the plaintiff’s drug addiction shortly after disqualifying him. This assertion only served to undermine his claim, however, that he was disqualified from employment due to his protected status as a recovering addict. If it were truly unaware that a disability existed, it would be impossible for the employer’s hiring decision to have been based, even in part, on the applicant’s stated disability, and he could not, ipso facto, have been subject to disparate treatment, the court wrote.

Disparate impact. The plaintiff’s disparate impact claim also failed. While he argued that the one-strike rule disparately affected recovering drug addicts by eliminating anyone who previously tested positive for drug use, the plaintiff offered “only the bald assertion that this result must be so.” However, “as we have noted, the rule does not necessarily screen out recovering drug addicts disproportionately.” The plaintiff must have produced evidence from which a factfinder could reasonably conclude that the one-strike rule results in the employer hiring fewer recovering drug addicts, as compared to the number of qualified recovered drug addicts in the relevant labor market. The record contains neither statistical nor anecdotal evidence to that effect, notwithstanding an affidavit from a forensic economist introduced by the plaintiff in support of this assertion.

Dissent.

Judge Pregerson dissented in part; he would have allowed the plaintiff to advance his disparate impact claim based on the forensic expert testimony that drug addicts are disproportionately affected by the lifetime ban, as well as evidence that at least 27 individuals were subjected to the ban during roughly the same period. “Because the identities of those individuals are protected, the court does not know which, if any, of them were drug addicts rather than casual users, or which of the addicts, if any, were later rehabilitated. It is clear, however, that a significant number of individuals were impacted by the ban. It is also reasonable to infer that at least some of those individuals, like Lopez, were at one time addicted to drugs, but after participating in a drug rehabilitation program, were able to overcome their addiction,” Pregerson argued. He also asserted the district court erred in requiring statistical evidence to support the disparate impact claim. While statistical evidence is generally required to show disparate impact under, for example, the ADEA, such evidence is not required for similar claims under the ADA. Furthermore, the dissent noted, “it is manifestly unreasonable to require statistical data regarding the number of recovering addicts either hired by an employer or screened out by the test. These figures are not kept by employers, and indeed such data likely could not be lawfully acquired.”

“I do not suggest that we now determine whether lifetime employment bars resulting from a positive drug test necessarily violate the ADA,” the dissent noted. Here, however, Pregerson was swayed by the unique nature and scope of the employer association in this case. “Where such a test is mandated by an employer who exercises singular control over an industry spanning the whole west coast of the United States, the potential impact of the policy is broad and pervasive.”

The decision is posted on the Internet at:
http://www.ca9.uscourts.gov/datastore/opinions/2011/03/02/09-55698.pdf

Investigation by NYS State Comptroller DiNapoli’s Office results in former town employee pleading guilty to charges of embezzlement

Investigation by NYS State Comptroller DiNapoli’s Office results in former town employee pleading guilty to charges of embezzlement
Source: Office of the State Comptroller

The former bookkeeper for the Towns of Kinderhook and Greenport has pleaded guilty to all charges related to her theft of approximately $300,000 in public funds following an investigation by State Comptroller Thomas P. DiNapoli's office, the New York State Police and Columbia County District Attorney Beth Cozzolino.

Additional information concerning the investigation and prosecution of the bookkeeper is posted on the Internet at: http://www.osc.state.ny.us/press/releases/mar11/030111.htm
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Even if a CBA's arbitration clause is broadly worded, a matter may be excluded from arbitration if the CBA's language clearly shows such an intent

Even if a CBA's arbitration clause is broadly worded, a matter may be excluded from arbitration if the CBA's language clearly shows such an intent
Matter of Massena Cent. School Dist. v Massena Confederated School Employees' Assn., NYSUT, AFL-CIO, 2011 NY Slip Op 01550, Appellate Division, Third Department

A school district employee, Eric Fetterly, was absent from his employment for 11 months after suffering a work-related injury.

When Fetterly returned to work, the School District told him that it had paid health insurance premiums on his behalf during his absence in error and asked for reimbursement. Ultimately the matter was submitted arbitration where the threshold issue was whether the health insurance dispute was arbitrable under the collective bargaining agreement.

When arbitrator ruled that the matter was, indeed, subject to arbitration, the School District appealed seeking a court order vacating the arbitrator’s determination. Supreme Court granted the District’s petition on the ground that it exceeded a specific, enumerated limitation on the arbitrator's power and the Employees’ Association appealed.

The Appellate Division said that “The threshold question of arbitrability is ordinarily a judicial determination, unless the agreement "'clearly and unmistakably'" provides otherwise,” citing Shearson v Sacharow, 91 NY2d 39.

The arbitration provision at issue, said the court, is limited and its “restrictive language cannot be read to manifest a clear and unmistakable intent to permit the arbitrator to enlarge the scope of arbitration in the guise of interpretation.” As the CBA explicitly forbids the arbitrator from "supplement[ing], enlarg[ing], diminish[ing], or alter[ing] the scope of [its] meaning," the Appellate Division said that “in order to determine whether the arbitrator exceeded his power in interpreting the exclusionary language, this Court must exercise its threshold responsibility to determine independently whether the dispute is arbitrable.”

Finding that the collective bargaining agreement provided that “not all grievances are arbitrable, prohibits the arbitrator from addressing issues outside his or her authority or enlarging the scope of the CBA, and specifically excludes "the subject of health insurance" from arbitration, the Appellate Division concluded that “it is evident that the parties did not intend to arbitrate this dispute” and affirmed Supreme Court’s ruling vacating the arbitrator’s determination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01550.htm
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Professional consultants are employees and not independent contractors

Professional consultants are employees and not independent contractors
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.

Matter of Wells v. Commissioner of Labor, 77 AD3d 993, is an interesting unemployment case. Applying the right to control test, the court held that professional consultants were employees, reasoning:

Initially, we note that the existence of an employment relationship is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Brevis Music Inc. [Commissioner of Labor], 54 AD3d 1084, 1085 [2008], lv denied 11 NY3d 712 [2008]). Where professionals are involved, the relevant inquiry is "whether the purported employer retains overall control of important aspects of the services performed" (Matter of Piano School of N.Y. City [Commissioner of Labor], 71 AD3d 1358, 1359 [2010]; see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d at 736;Matter of Parisi [Commissioner of Labor], 54 AD3d 456, 457 [2008]).

In the instant case, it was established that claimant contacted Madison after hearing about the position from another consultant and that Madison conducted an interview to ascertain if claimant was suited for the job. Madison, in turn, sent claimant a written contract setting his compensation at $350 per day and referred him to the client who performed a background check, provided training and directed his daily work activities.

Under the terms of the contract, claimant was precluded from otherwise working for Madison's client companies or partners during the term of the assignment and for one year thereafter, was subject to client confidentiality agreements and was entitled to reimbursement of certain business expenses. In order to obtain payment, claimant was required to complete a time sheet provided by Madison to be submitted at times it directed. In addition, although Madison did not provide formal training, it supplied claimant with informational booklets on its clients' policies and procedures, had a representative conduct site visits to periodically meet with the consultants and responded to client complaints about consultants' work.

This Court has acknowledged that "'an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship'" (Matter of Singh [Thomas A. Sirianni, Inc. — Commissioner of Labor], 43 AD3d 498, 499 [2007], quoting Matter of Kimberg [Hudacs], 188 AD2d 781, 781 [1992]; see Matter of Atelek [Head Hunters Hair Design — Commissioner of Labor], 278 AD2d 560, 560 [2000]). The record reveals that Madison did more than this, as indicated by its interaction with the consultants, responsibility for their work and the terms of the written contract. The fact that the contract was entitled an "Independent Consultant Agreement" is not dispositive (see Matter of Kaplan [Tupperware Distrib. — Commissioner of Labor], 257 AD2d 951, 952 [1999], lv dismissed 93 NY2d 920 [1999]).

Accordingly, as substantial evidence supports the Board's decisions, we decline to disturb them, notwithstanding evidence in the record that would support a contrary conclusion (see Matter of DeSantis [Commissioner of Labor], 54 AD3d 1103, 1104-1105 [2008]).

Mitchell H. Rubinstein

Agency’s use of its non-punitive procedure not a prerequisite to disciplinary action

Agency’s use of its non-punitive procedure not a prerequisite to disciplinary action
Matter of Van Osten v Horn, 37 AD3d 317

The Commissioner of the New York City Department of Corrections terminated correction officer Michele Van Osten’s employment after finding her guilty of disciplinary charges that her absences from work were excessive and inadequately explained, and that she was unable to perform the full range of her duties as a corrections officer.

One of the arguments advanced by Van Osten was that the Department could not bring formal disciplinary proceedings against her because it had not earlier provided her with the “informal, non-punitive mechanism adopted by [the] Department to address certain employee misconduct.”

The Appellate Division ruled that fact that such an informal, non-punitive mechanism had been adopted by Department [sometimes referred to as "progresssive discipline"] and could be utilized by the Department at its discretion did not limit its prerogative to initiate formal disciplinary proceedings against an employee pursuant to the Civil Service Law without first using its informal procedure.

As to the penalty imposed, termination, the court said that “Under the circumstances, termination is not a sanction shocking to our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/discipline-not-barred-by-availability.html


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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policy

Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policy
Matter of City of Middletown v City of Middletown Police Benevolent Assn., 2011 NY Slip Op 01400, Appellate Division, Third Department

The City of Middletown Police Benevolent Association ( PBA) and the City were parties to a collective bargaining agreement that had expired. The parties reached an impasse in the course of negotiating a new agreement and the PBA submitted filed a petition with the Public Employment Relations Board ( PERB) seeking the compulsory interest arbitration of several subjects, including a disciplinary procedure proposal, a bill of rights proposal and a proposal concerning procedure under General Municipal Law §207-c.

The City then filed an improper practice charge with PERB claiming, among other things, that the demands submitted by the PBA were not mandatory subjects of negotiation.

PERB ultimately held that the proposals for a bill of rights and disciplinary procedure — both of which involve police disciplinary matters — were prohibited subjects of negotiations, but “created an exception from this general prohibition of collective bargaining for honorably discharged veterans and volunteer firefighters.”

Concluding that collective bargaining over police disciplinary matters was prohibited, without exception, Supreme Court found that PERB's decision was affected by an error of law and granted the City’s petition challenging PERB’s ruling.

The Appellate Division affirmed the Supreme Court’s holding, explaining that “Although strong state public policy favors collective bargaining, there exists a "competing policy … favoring strong disciplinary authority for those in charge of police forces," citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563.

The Appellate Division said that "legislation specifically commits police discipline to the discretion of local officials . . . the policy favoring [local] control over the police prevails, and collective bargaining over disciplinary matters is prohibited." As the issue here concerned the relative weight to be given to competing policies, rather than the application of the Taylor Law to particular facts, Appellate Division said that “no deference is accorded to PERB's determination.”

Noting that the Middletown City Charter grants the Board of Police Commissioners the power to "enact, modify and repeal orders, rules and regulations for the . . . discipline of the police department" and "[t]o punish . . . any police officer of the city," these enactments "state the policy favoring management authority over police disciplinary matters in clear terms" and "express a policy so important that the policy favoring collective bargaining should give way."

As to PERB finding that such prohibition against collective bargaining does not apply to honorably discharged veterans and volunteer firefighters, the Appellate Division said that it agreed with Supreme Court “that PERB's determination in this regard was affected by an error of law and, therefore, cannot be upheld.” Specifically, the court decided that PERB's reliance on case law holding that the special protections granted to honorably discharged veterans and volunteer firefighters under Civil Service Law former §22 trump police disciplinary procedures set forth in a local charter was misplaced.*

The bottom line: the Appellate Division conclude that the discipline of Middletown’s police force, including honorably discharged veterans and volunteer firefighters, is not a permissible subject of collective bargaining.

* §22.1 of the Civil Service Law (Chapter 15 of the Laws of 1909, as amended), sets out procedures to be followed with respect to the “Removal of veterans and volunteer firemen” while §22.2 of such law sets out procedures with respect to the “Removal generally” of “officers and employees holding a position in the competitive class of the civil service of the state or any civil division or city thereof.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01400.htm
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A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process

A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process
Matter of Hyman v Cornell Univ., 2011 NY Slip Op 01548, Appellate Division, Third Department

A Cornell faculty member alleged that a graduate student exchanged a series of e-mails. The faculty member told the student she should not contact him after the student suggested that they have a sexual affair.

When the student continued to send the faculty member e-mails, he told her that he that he would take formal action against petitioner if she persisted in communicating with him. Although the student agreed to discontinue communication, she subsequently e-mailed Cornell’s president, copying the faculty member, alleging that her "institutional rights" had been repeatedly violated by Department faculty.

The faculty member instituted proceedings against the graduate student and ultimately filed a complaint accusing her of harassment in violation of Cornell’s Code of Conduct.*

The graduate student than filed a complaint against the faculty member, accusing him of sexual harassment and retaliation. Ultimately the Cornell’s Hearing Board sent the student a written reprimand and issued a “no-contact order.”

The student sued, but Supreme Court dismissed her Article 78 petition. Subsequently the Appellate Division dismissed the student’s appeal of the Supreme Court’s ruling, stating that:

It is well settled that in reviewing a college’s or university's disciplinary determinations, "court[s] must determine 'whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings," citing Matter of Warner v Elmira Coll., 59 AD3d 909.

The court explained that only in the event the college or university “has not substantially complied with its own guidelines or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious.”

* Cornell’s Code of Conduct makes it a violation "[t]o intentionally harass another person by . . . acting toward that person in a manner [that] is . . . severely annoying . . . and beyond the scope of free speech."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01548.htm
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Freedom of information and speech

Freedom of information and speech
Informal Opinions of the Attorney General: 2000-2

The basic principle underlying New York State’s Freedom of Information Law [FOIL] is that all public documents are subject to disclosure upon request unless such disclosure is specifically prohibited by law.

For example, the State’s Public Health Law, Mental Hygiene Law and Education Law prohibit the disclosure of certain documents or information to the public without specific authorization by a court.

FOIL, however, also lists a number of exemptions that authorizes, but does not require, the custodian of the document to withhold particular information or documents if, as a matter of discretion, it elects to do so. Similarly, the State’s Open Meetings Law requires that the public be allowed to attend all meetings held by a public entity, although the public may be excluded from executive sessions held by the entity.

Executive sessions may be held for limited purposes, however. These include sessions in which the body will discuss items that would imperil public safety if disclosed; result in the identification of law enforcement personnel or police informants; concern matters involving criminal investigations; discussions concerning pending legislation or Taylor Law negotiations; personnel matters involving a particular individual; certain economic issues and matters concerning examinations and tests.

Although discussions of matters considered in executive session may be withheld even if they are recorded, both FOIL and the Open Meetings Law require that any formal vote taken during an executive session be made a public record subject to FOIL together with a record of how each member of the body voted.

May a local legislative body adopt a resolution prohibiting a member of that body from disclosing matters discussed in an executive session held by that body? This was the question presented to the Attorney General by Gregory J. Amoroso, the City of Rome’s corporation counsel.

In response, the Attorney General noted the parallels between the exceptions allowed under FOIL and the purposes for which a public body may go into an executive session from which the public is barred. His conclusion:

A governing body of a municipality may withhold any records of discussions properly taking place during an executive session and, further, it may prohibit its members from revealing the content of such discussions to the public.

However, cautioned the Attorney General, while the decision to go into executive session is a matter of properly exercising discretion and nothing in either FOIL or the Open Meetings Law prohibits the barring of the disclosure the nature of the discussions conducted in executive session by a participant, all such prohibitions are subject to federal and state freedom of speech requirements.

The clear implication here: neither FOIL nor the Open Meetings Law will serve as a shield in the event a court determines that a limitation placed on revealing matters considered in executive session violates the individual’s constitutional right to free speech. Courts have typically found that limitations placed on a public officer or employee with respect to his or her disclosing matters of public interest violates the individual’s right of free speech.

In contrast, prohibiting an individual from publicly discussing subjects or governmental decisions or actions involving matters of a personal interest rather than a public interest does not violate the individual’s constitutionally protected right of free speech. As the U.S. Supreme Court indicated in Connick v Myers, 461 US 138, constitutional free speech rights are not implicated when only matters of a personal interest to the individual, in contrast to matters of public concern, are involved.
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Vacating or modifying an arbitrator’s award

Vacating or modifying an arbitrator’s award
Matter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 2011 NY Slip Op 01482, Appellate Division, Second Department

Article 75 of the Civil Practice Rules provides that an arbitration award may be vacated by the courts upon a finding of:

a. Corruption, fraud or misconduct in obtaining the award; or

b. Partiality of the arbitrator, unless the award was by "confession;" or

c. The arbitrator exceed his or her authority or so imperfectly executed his or her power that no award as to the subject matter submitted was made; or

d. There was a failure to follow the procedures set out in Article 75.

An arbitrator's award may be modified only if there was a miscalculation of numbers or a mistake in the description of a person or thing; an award was made regarding some matter not submitted to the arbitrator for arbitration; or the award was "imperfect as to form" but not involving the merits of the controversy.

The Westchester case involved a proceeding pursuant to CPLR article 75 to vacate an arbitration award. The Appellate Division set out the following guidelines with respect to judicial review of an arbitration award:

1. Judicial review of arbitration awards is extremely limited.

2. An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.

3. An arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator.

4. Courts should not assume the role of overseers to mold the award to conform to their sense of justice.

In this instance the court held that party seeking to vacate the arbitrator’s award “failed to meet its burden of proving by clear and convincing evidence that the arbitrator committed misconduct, and that such misconduct prejudiced its rights or the integrity of the arbitration process.”

Further, said the Appellate Division, an arbitrator exceeds his or her power within the meaning of CPLR §7511(b)(1)(iii) "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01482.htm
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Administrative law judge denies employee’s attempt to convert a disciplinary hearing into a “disability proceeding”

Administrative law judge denies employee’s attempt to convert a disciplinary hearing into a “disability proceeding”
NYC Human Resources Administration v Krisilas, OATH Index #931/11

A clerical associate was charged with sleeping on duty, absence without leave, excessive lateness, and discourtesy to a supervisor. The employee’s attorney moved to dismiss the disciplinary charges and convert the matter to a disability proceeding, claiming his client suffered from a disability.

OATH Administrative Law Judge Ingrid Addison denied the motion, ruling that an employer's duty to accommodate an employee's disability is triggered by the employee's request for accommodation and is limited to disabilities known by the employer.

Here, said Judge Addison, the employee never told the agency he suffered from a disability for which he needed accommodation. Nor, said the judge, did the evidence establish that the employee's misconduct was caused by a disability.

The ALJ held that the disciplinary charges were proven in the course of the disciplinary hearing and recommended that the individual be terminated from his position.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-931.pdf
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State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State’s Public Employee OSHA regulations

State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State’s Public Employee OSHA regulations
Source: New York State Register, March 2, 2011

On March 2, 2011 the State Register published a notice that the State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State Public Employee Occupational Safety and Health Standards by amending its regulations. [See 12 NYCRR §800.3.]

The Department states that the amendment is necessary because Section 27-a(4)(a) of the Labor Law directs the Commissioner to adopt by rule, for the protection of the safety and health of public employees, all safety and health standards promulgated under the U.S. Occupational Safety and Health Act of 1970, and to promulgate and repeal such rules and regulations as may be necessary to conform to the standards established pursuant to that Act. This, says the Department, insures that public employees will be afforded the same safeguards in their workplaces as are granted to employees in the private sector.

The text of proposed rule and any required statements and analyses may be obtained from Michael Paglialonga, New York State Department of Labor, State Office Campus, Building 12, Room 509, Albany, NY 12240, (518) 457-1938, email: michael.paglialonga@labor.ny.gov

Data, views or arguments may be submitted to Mr. Paglialonga.

Public comment will be received until 45 days after publication of this notice.
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