Discipline or constructive criticism?
Source: E-mail received by NYPPL referencing an item posted on the Internet at http://auburnpub.com/news/local/article_0a5c06e8-5a78-11e0-95ff-001cc4c03286.html
Suspended Jordan-Elbridge School District principal David Zehner and his attorneys, citing the Education Law and the Public Officer Law, contend that Zehner cannot be “reprimanded” until a hearing officer is selected to hear any charges filed against him pursuant to §3020-a of the Education Law and he is found guilty of those charges.
Zehner considered three actions by the Board to constitute reprimands, or punishments, in the nature of disciplinary actions taken against him and petitioned Supreme Court for an order directing the board "to cease disciplining him until it appoints an arbitrator to conduct a hearing on his 3020-a charges."
The school district, on the other hand, contends that it had not reprimanded Zehner but had merely informed him that he had violated board policy by acting inappropriately at meetings. The school district’s attorney, Frank Miller, Esq., said. “This isn’t a letter of reprimand. ... We have a right to say to one of our employees, ’you’re acting up; we’re going to correct you.’”
Distinguishing between “constructive criticism” and a reprimand in the context of a disciplinary action has been addressed in The Discipline Book [http://thedisciplinebook.blogspot.com/ ] as follows:
"In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding. In other words, the appointing authority’s placing correspondence critical of the employee’s conduct or performance in his or her personnel file did not constitute discipline.
"The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.
"In contrast, alleged “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.
"As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, 14,396, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000, 'Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.'"
"What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature?
"This could be a difficult question to resolve. As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.
"In the Fusco and Irving cases the Commissioner of Education found that 'critical comment' exceeded the parameters circumscribing 'lawful instruction' concerning unacceptable performance.
"In Fusco’s case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was 'intended to encourage positive change' in Fusco’s performance. The Commissioner noted that the memorandum 'contains no constructive criticism or a single suggestion for improvement.' Rather, said the Commissioner, the memorandum focused on 'castigating [Fusco] for prior alleged misconduct.'"
"In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
March 31, 2011
Dissatisfaction with a new job assignment
Dissatisfaction with a new job assignment
Matter of Gaines and the NYC Transit Authority [Commissioner of Labor], Appellate Division, 37 AD3d 962
Shawn A. Gaines was disqualified from receiving unemployment insurance benefits after the Unemployment Insurance Board found that he had voluntarily left his employment without good cause.
Gaines, after working as a train operator for 21 years, was temporarily suspended from his job and scheduled to return to work in October 2004. In the interim, however, the Transit Authority implemented a policy prohibiting employees from working as train operators when, as was the situation with Gaines, they have medical restrictions that prevent them from operating trains in passenger service.
Gaines’ restriction: he suffered a hearing loss.
The Authority, however, told Gaines it would place him in a different position and directed him to report for medical examinations. Gaines did not report for the examinations nor did he provide the Authority with the documentation it had requested concerning his medical condition. Instead, Gaines filed a claim for unemployment insurance benefits claiming that he was terminated for lack of work.
The Unemployment Insurance Appeal Board disqualified him from receiving benefits after finding that Gaines had voluntarily left his employment without good cause. The Board also charged Gaines with a recoverable overpayment of more than $1,600 and reduced his right to receive future benefits by eight effective days. Gaines appealed.
The Appellate Division affirmed the Board’s determination, stating that dissatisfaction with a new job assignment, the terms and conditions of which are comparable to a former job, has been held not to constitute good cause for leaving one's job.
Other factors cited by the court supporting the Board’s determinations:
1. Gaines said he did not want to be placed in a different position even though an Authority representative testified that Gaines would receive the same salary and vacation time.
2. By failing to appear for the Authority’s medical examinations before knowing the nature of the position to which he was to be reassigned, Gaines failed to take reasonable steps to protect his employment.
Considering the fact that Gaines “inaccurately represented that he was laid off when continuing work was, in fact, available,” the court ruled that substantial evidence also supports the Board's finding that he made a willful misrepresentation to obtain benefits.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/dissatisfaction-with-new-job-assignment.html
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Matter of Gaines and the NYC Transit Authority [Commissioner of Labor], Appellate Division, 37 AD3d 962
Shawn A. Gaines was disqualified from receiving unemployment insurance benefits after the Unemployment Insurance Board found that he had voluntarily left his employment without good cause.
Gaines, after working as a train operator for 21 years, was temporarily suspended from his job and scheduled to return to work in October 2004. In the interim, however, the Transit Authority implemented a policy prohibiting employees from working as train operators when, as was the situation with Gaines, they have medical restrictions that prevent them from operating trains in passenger service.
Gaines’ restriction: he suffered a hearing loss.
The Authority, however, told Gaines it would place him in a different position and directed him to report for medical examinations. Gaines did not report for the examinations nor did he provide the Authority with the documentation it had requested concerning his medical condition. Instead, Gaines filed a claim for unemployment insurance benefits claiming that he was terminated for lack of work.
The Unemployment Insurance Appeal Board disqualified him from receiving benefits after finding that Gaines had voluntarily left his employment without good cause. The Board also charged Gaines with a recoverable overpayment of more than $1,600 and reduced his right to receive future benefits by eight effective days. Gaines appealed.
The Appellate Division affirmed the Board’s determination, stating that dissatisfaction with a new job assignment, the terms and conditions of which are comparable to a former job, has been held not to constitute good cause for leaving one's job.
Other factors cited by the court supporting the Board’s determinations:
1. Gaines said he did not want to be placed in a different position even though an Authority representative testified that Gaines would receive the same salary and vacation time.
2. By failing to appear for the Authority’s medical examinations before knowing the nature of the position to which he was to be reassigned, Gaines failed to take reasonable steps to protect his employment.
Considering the fact that Gaines “inaccurately represented that he was laid off when continuing work was, in fact, available,” the court ruled that substantial evidence also supports the Board's finding that he made a willful misrepresentation to obtain benefits.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/dissatisfaction-with-new-job-assignment.html
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Interpreting contract language
Interpreting contract language
Local 589 v Cuevas, 271 AD2d 535
Using clear and unambiguous language in a collective bargaining agreement makes it easier for a court to resolve the meaning of a Taylor Law contract provision.
In the Local 589 case, the union attempted to convince the court that PERB had misinterpreted the provisions set out in a collective bargaining agreement when it declined to accept jurisdiction over an improper practice charge filed by the Local. The Appellate Division, Second Department disagreed, affirming PERB’s determination in the matter.
The City of Newburgh and International Association of Firefighters Local 589 had negotiated a collective bargaining agreement that included a “Section 207-a Procedure” that dealt with filing application for, and the awarding of, disability benefits pursuant to Section 207-a of the General Municipal Law.
The negotiated procedure stated that [a]ny claim of violation, misapplication, or misinterpretation of the terms of the Procedure shall be subject to review only by judicial proceeding.
Claiming that requiring a disabled firefighter’s physician to fill out a newly-created form violated the Procedure, the Local filed an improper practice charge with PERB. PERB, however, declined to assume jurisdiction, holding that it was procedurally barred by the Procedure from reviewing the charge in view of the clear and unambiguous contract language used in the collective bargaining agreement.
Although a State Supreme Court annulled PERB’s determination, the Appellate Division disagreed, finding that PERB dismissal of the Local’s improper practice charge was based upon a reasonable interpretation of the provision at issue. The court noted that the scope of judicial review of a PERB determination interpreting the Civil Service Law is limited, and unless the determination is affected by an error of law or is arbitrary and capricious, it will be upheld. PERB, said the court, is presumed to have developed an expertise which requires the courts to accept its construction of that law if it is not unreasonable.
What is standard applied by the courts in such cases? The Second Department said that [a]s long as the PERB interpretation is legally permissible and does not breach constitutional rights or protections, the courts will not disturb that determination.
PERB had decided that the thrust of Local 589’s unfair practice charge was that the new documentation requirement violates the established terms of the Procedure. In view of the specific language contained in the Procedure concerning resolving disputes concerning its provisions -- shall be subject to review only by judicial proceeding -- the Appellate Division said that PERB’s determination that it could not review the improper practice charge was a reasonable and supportable interpretation of the parties’ agreement.
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Local 589 v Cuevas, 271 AD2d 535
Using clear and unambiguous language in a collective bargaining agreement makes it easier for a court to resolve the meaning of a Taylor Law contract provision.
In the Local 589 case, the union attempted to convince the court that PERB had misinterpreted the provisions set out in a collective bargaining agreement when it declined to accept jurisdiction over an improper practice charge filed by the Local. The Appellate Division, Second Department disagreed, affirming PERB’s determination in the matter.
The City of Newburgh and International Association of Firefighters Local 589 had negotiated a collective bargaining agreement that included a “Section 207-a Procedure” that dealt with filing application for, and the awarding of, disability benefits pursuant to Section 207-a of the General Municipal Law.
The negotiated procedure stated that [a]ny claim of violation, misapplication, or misinterpretation of the terms of the Procedure shall be subject to review only by judicial proceeding.
Claiming that requiring a disabled firefighter’s physician to fill out a newly-created form violated the Procedure, the Local filed an improper practice charge with PERB. PERB, however, declined to assume jurisdiction, holding that it was procedurally barred by the Procedure from reviewing the charge in view of the clear and unambiguous contract language used in the collective bargaining agreement.
Although a State Supreme Court annulled PERB’s determination, the Appellate Division disagreed, finding that PERB dismissal of the Local’s improper practice charge was based upon a reasonable interpretation of the provision at issue. The court noted that the scope of judicial review of a PERB determination interpreting the Civil Service Law is limited, and unless the determination is affected by an error of law or is arbitrary and capricious, it will be upheld. PERB, said the court, is presumed to have developed an expertise which requires the courts to accept its construction of that law if it is not unreasonable.
What is standard applied by the courts in such cases? The Second Department said that [a]s long as the PERB interpretation is legally permissible and does not breach constitutional rights or protections, the courts will not disturb that determination.
PERB had decided that the thrust of Local 589’s unfair practice charge was that the new documentation requirement violates the established terms of the Procedure. In view of the specific language contained in the Procedure concerning resolving disputes concerning its provisions -- shall be subject to review only by judicial proceeding -- the Appellate Division said that PERB’s determination that it could not review the improper practice charge was a reasonable and supportable interpretation of the parties’ agreement.
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Smoke breaks ruled off-duty activity
Smoke breaks ruled off-duty activity
Eckerson v State and Local Retirement Systems, 270 AD2d 705, motion for leave to appeal denied, 95 NY2d 756
Significant accidental disability retirement benefits are available to members of the New York State and Local Retirement Systems [ERS] who are disabled as the result of an accident incurred in performing official duties.
In the Eckerson case, the Appellate Division considered the issue of what constitutes performing official duties for the purpose of establishing eligibility for accidental disability retirement benefits.
Dennis Eckerson, an employee of the Central New York Psychiatric Center, slipped and fell returning from a designated smoking area to the building where he worked.
ERS ruled that Eckerson was not in service when he was injured returning from his smoking break and disapproved his application for accidental disability retirement benefits. Eckerson filed an Article 78 petition challenged ERS’ determination.
Admitting that he smoked a cigarette prior to his fall, Eckerson also testified that he went to the smoking area to conduct work-related business. This conflicting evidence, said the Appellate Division, created a credibility issue for ERS to resolve. The court sustained ERS’ conclusion that Eckerson’s representation that he went to the smoking area to conduct official business was not creditable.
The court also noted that in considering accidental disability retirement applications filed by other ERS members based on a “slip and fall” on their employer’s premises, ERS had concluded that the member was not in service for the purpose of eligibility for such benefits in situations where:
1. The employee had not yet reported for work [Farley v McCall, 239 AD2d 779];
2. The employee was injured during a lunch break [Nappi v Regan, 186 AD2d 855]; and
3. The employee was injured after the work shift had ended [DiGuida v McCall, 244 AD2d 756].
The Appellate Division said that it found nothing irrational in ERS’ applying a similar rationale in the case of an injury sustained by an employee during his or her smoke break where the member cannot demonstrate that he or she was conducting official business at the time.
On the issue of credibility, frequently the review of an application for accidental disability retirement benefits involves conflicting evidence.
In Giebner v McCall, 270 A.D.2d 705 , also decided by the Appellate Division, the court held that where the record contains contradictory medical evidence concerning whether the applicant was permanently disabled, it was within ERS’s discretion to evaluate the differing medical opinions and resolve the conflict against the applicant.
The Appellate Division applied the same standard in resolving the question of determining credibility in Eckerson’s case.
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Eckerson v State and Local Retirement Systems, 270 AD2d 705, motion for leave to appeal denied, 95 NY2d 756
Significant accidental disability retirement benefits are available to members of the New York State and Local Retirement Systems [ERS] who are disabled as the result of an accident incurred in performing official duties.
In the Eckerson case, the Appellate Division considered the issue of what constitutes performing official duties for the purpose of establishing eligibility for accidental disability retirement benefits.
Dennis Eckerson, an employee of the Central New York Psychiatric Center, slipped and fell returning from a designated smoking area to the building where he worked.
ERS ruled that Eckerson was not in service when he was injured returning from his smoking break and disapproved his application for accidental disability retirement benefits. Eckerson filed an Article 78 petition challenged ERS’ determination.
Admitting that he smoked a cigarette prior to his fall, Eckerson also testified that he went to the smoking area to conduct work-related business. This conflicting evidence, said the Appellate Division, created a credibility issue for ERS to resolve. The court sustained ERS’ conclusion that Eckerson’s representation that he went to the smoking area to conduct official business was not creditable.
The court also noted that in considering accidental disability retirement applications filed by other ERS members based on a “slip and fall” on their employer’s premises, ERS had concluded that the member was not in service for the purpose of eligibility for such benefits in situations where:
1. The employee had not yet reported for work [Farley v McCall, 239 AD2d 779];
2. The employee was injured during a lunch break [Nappi v Regan, 186 AD2d 855]; and
3. The employee was injured after the work shift had ended [DiGuida v McCall, 244 AD2d 756].
The Appellate Division said that it found nothing irrational in ERS’ applying a similar rationale in the case of an injury sustained by an employee during his or her smoke break where the member cannot demonstrate that he or she was conducting official business at the time.
On the issue of credibility, frequently the review of an application for accidental disability retirement benefits involves conflicting evidence.
In Giebner v McCall, 270 A.D.2d 705 , also decided by the Appellate Division, the court held that where the record contains contradictory medical evidence concerning whether the applicant was permanently disabled, it was within ERS’s discretion to evaluate the differing medical opinions and resolve the conflict against the applicant.
The Appellate Division applied the same standard in resolving the question of determining credibility in Eckerson’s case.
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March 30, 2011
Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error
Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error
Matter of Social Servs. Employees Union, Local 371 v City of New York, Dept. of Juvenile Justice, 2011 NY Slip Op 02455, Appellate Division, First Department
Judge Alice Schlesinger confirmed an arbitration award reinstating Bowana Robinson to his position as an institutional aide at the City of New York's Department of Juvenile Justice. The award also provided Robinson with back pay and seniority.
The Appellate Division vacated the lower court’s ruling and remanded the matter to the arbitrator “for a determination of an appropriate penalty.” The court said that the arbitrator had failed to “give preclusive effect” to the fact that Robinson had plead guilty plea of petit larceny, which “was irrational” and the arbitrator’s award “places Robinson back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.”
The ruling in Kelly v. Levin, 440 NYS2d 424 involved a similar situation - an administrative tribunal's failure to give preclusive effect to a relevant criminal conviction by a court. Kelly involved a school business administrator charged with larcenies of school funds and bringing discredit upon the school district.
The Education Law §3020-a disciplinary panel found the Kelly guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges. Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being served with the §3020-a disciplinary charges (see People v Kelly, 72 AD2d 670).
The court ruled that it was reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02455.htm .
Matter of Social Servs. Employees Union, Local 371 v City of New York, Dept. of Juvenile Justice, 2011 NY Slip Op 02455, Appellate Division, First Department
Judge Alice Schlesinger confirmed an arbitration award reinstating Bowana Robinson to his position as an institutional aide at the City of New York's Department of Juvenile Justice. The award also provided Robinson with back pay and seniority.
The Appellate Division vacated the lower court’s ruling and remanded the matter to the arbitrator “for a determination of an appropriate penalty.” The court said that the arbitrator had failed to “give preclusive effect” to the fact that Robinson had plead guilty plea of petit larceny, which “was irrational” and the arbitrator’s award “places Robinson back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.”
The ruling in Kelly v. Levin, 440 NYS2d 424 involved a similar situation - an administrative tribunal's failure to give preclusive effect to a relevant criminal conviction by a court. Kelly involved a school business administrator charged with larcenies of school funds and bringing discredit upon the school district.
The Education Law §3020-a disciplinary panel found the Kelly guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges. Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being served with the §3020-a disciplinary charges (see People v Kelly, 72 AD2d 670).
The court ruled that it was reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02455.htm .
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