May 10, 2011

Employee organization's duty of fair representation

Employee organization's duty of fair representation
Ayazi v United Federation of Teachers, 32 PERB 3069

From time to time, a member of a negotiating unit will file an unfair labor practice claim with PERB contending that his or her union has breached its duty of fair representation. The Ayazi decision by PERB sets out the standards used by PERB in resolving such claims.

Maryam J. Ayazi, a former teacher of English as a Second Language employed by the New York City School District’s Grover Cleveland High School, filed charges with PERB alleging that her union, the United Federation of Teachers [UFT]:

1. Failed to properly represent her by declining to appeal an adverse “probation discontinuance appeal hearing” that sustained her termination for unsatisfactory service effective June 1997.

2. Refused to file a grievance for back pay based on the school district’s refused to hire her as a full time teacher following her termination as a probationer.

UFT responded to the charges indicating that:

1. It declined to challenge Ayazi’s termination for unsatisfactory performance during her probationary period because “her appeal raised no legal issues;” and

2. It did not file a grievance seeking back pay because “it did not believe that the grievance would be successful.”

Citing CSEA v PERB, 132 AD2d 430, PERB said that “[i]n order to establish a claim for breach of the duty of fair representation against a union, there must be a showing that the activity, or lack thereof, which formed the basis of the charge against the union was deliberately invidious, arbitrary or founded in bad faith.”

In contrast, PERB said that there is no violation of Section 209-a.2(c) if the union’s action, or inaction, was caused by “an honest mistake resulting from misunderstanding” or its lack of familiarity with matters of procedure.

PERB sustained its administrative law judge’s decision dismissing Ayazi’s complaint, commenting that the fact that Ayazi disagreed with UFT’s position and believed that her probationary termination should have been further appealed “is not sufficient to establish a violation of the Act.”

Another element in this action was Ayazi’s allegation that UFT said that it would no longer represent her because she had filed the unfair labor practice charge.

UFT conceded that it had told Ayazi that it would not communicate with her about matters that were the subject of this improper practice charge. Ayazi, on the other had, admitted that “UFT has continued to communicate with her about matters unrelated to those that are subject to this proceeding.”

PERB said that under the circumstances UFT’s action, without more, did not rise to a level of a violation of the Act.

May 09, 2011

An employee’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.”

An employee’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.”
Dundee Central School District v Douglas Coleman, Supreme Court Yates County, Index 2011-0011, Judge W. Patrick Falvey

In an earlier action involving the same parties in which Dundee challenged the hearing officers determination, Judge Falvey directed the Hearing Officer to reconsider certain disciplinary charges and specifications filed against Douglas Coleman, commenting that in the event the Hearing Officer "finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty."

The hearing officer sustained, in whole or part, a number of the charges and specification remanded to him for reconsideration but did not modify the penalty has originally imposed.

Dundee, while not challenging the hearing officer’s findings with respect to the charges and specifications he considered upon remand, appealed the hearing officer’s determination that no additional penalty should be imposed.*

The decision indicates that “after reviewing the … counseling memoranda, the Hearing Officer noted that there was no proof any of the warned offenses were repeated by Coleman.” The Hearing Officer concluded, “As such, I find and conclude that these Counseling Memoranda are a critical preface to the progressive disciplinary scheme inherent in the just cause protocol under [Education Law] §3020-a.

The school district contended that the Hearing Officers decision with respect to the penalty to be imposed was “excessively lenient, against public policy and was arbitrary and capricious. In addition, argued Dundee, the decision was irrational because the Hearing Officer did not impose any additional penalty against Coleman despite the fact that he had been found guilty of additional charges and specifications.

The Hearing Officer explained “It would be inherently unfair and totally contrary to the just cause protocol to issue further discipline to [Coleman] for actions that were never repeated and I will not do so.”

Dundee asked the court to remand the matter to a different hearing officer for a new determination as to the appropriate penalty to be imposed, contending that, in effect, the Hearing Officer’s ruling is that should a school district issue a counseling memorandum, and there is not repetition of the offending conduct, it cannot seek any additional penalty within the context of subsequent disciplinary action take against the employee. This interpretation, Dundee claimed, “violates and gives an irrational construction to existing law.

Judge Falvey said that Dundee’s argument was will taken and confirmed that his previous ruling that the underlying conduct described in the counseling memoranda can be the sole basis for formal disciplinary action pursuant to §3020-a of the Education Law.

The court concluded that the Hearing Officer’s decision with respect to the penalty to be imposed “lacks a rational basis due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda before he would consider Dundee’s request for a penalty” and remanded the matter to a new hearing officer for the purpose of determining the penalty to be imposed.

It should be noted that case law indicates that the individual’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.”

In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott’s argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing. The court said that “such evidence was relevant to the determination of an appropriate penalty,” noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.

Similarly, in Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:

1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and

2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

In a sense, Coleman’s theory with respect to using “counseling memoranda” in a formal disciplinary hearing is in the nature of double jeopardy. A claim of double jeopardy is sometimes encountered in efforts to suppress a disciplinary action in situations were the charges reflect the same acts or omissions that were the subject of counseling memoranda or performance evaluations.The courts have rejected this theory.**

In Patterson v Smith, 53 NY2d 98, the Court of Appeals said that including charges concerning performance that were addressed in a counseling memorandum was not “double jeopardy. ”The court explained that a “proper counseling memoranda” contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself. Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event or events.

The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate [Fusco v Jefferson County School District, CEd, 14,396 and Irving v Troy City School District, CEd 14,373].

The point made in Fusco and Irving is that 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?

In Holt v Board of Education, 52 NY2d 625, the Court of Appeals decided 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 act of 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. In other words, an appointing authority may not 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 by claiming its action was merely “constructive criticism.”

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” noting 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. 

* The original penalty that was imposed provided for a suspension without pay for six months but directed Dundee to continue Coleman’s participation in the school district’s health insurance plan. In his earlier ruling, Judge Falvey struck the requirement that Dundee continue to provide Coleman with health insurance at the school district’s expense. 

** "Double jeopardy" is essentially a bar to retrying an individual for the same crime in a criminal court. The doctrine, however, does not bar filing administrative disciplinary charges against an individual against whom criminal charges have been filed involving the same event or events. Indeed, an individual who has been found guilty of criminal conduct cannot be found not guilty of the same offense[s] in a subsequent administrative disciplinary action [see Kelly v Levin, 440 NYS2d 424]. Nor is the filing of criminal charges a bar to proceeding with administrative disciplinary action while the criminal action is pending [see Levine v New York City Transit Authority, 70 AD2d 900, affirmed 49 NY2d 747; Chaplin v NYC Department of Eduction, 48 A.D.3d 226; and Haverstraw-Stony Point CSD, 24 Ed. Dept. Rep. 466].  

Termination of police officer for falsifying official reports affirmed

Termination of police officer for falsifying official reports affirmed

Sweeney v Safir, App. Div., 267 AD2d 99

New York City police officer Kevin Sweeney lost his job after being found guilty of giving false testimony and falsifying official reports.

Sweeney appealed only to have Appellate Division affirm the findings of the police commissioner as to guilt and the penalty imposed -- dismissal.

The commissioner found that Sweeny was guilty of “knowingly” making false statements in police reports and in his testimony before a Grand Jury.

Sweeny testified that “he was the victim of a gunpoint robbery of his fiancĂ©e’s car when, in fact, the car was simply stolen from the street when [Sweeney] left it double-parked with the keys in the ignition and the engine running.”

Employee dismissed because of habitual lateness

Employee dismissed because of habitual lateness
Dept. of Corrections v Gardner, OATH 1096/99

Disciplinary charges were filed against Darell Gardner, a New York City corrections officer, alleging various time and leave violations such as failing to call in to report illness as required and reporting to work late 17 times in a one-year period.

Administrative Law Judge [ALJ] Donna R. Merris found Gardner guilty of failing to call in sick one hour before his scheduled tour of duty, failure to report for duty following a grant of personal emergency leave, and of excessive lateness.

Judge Merris then reviewed Gardner’s personnel record. Noting that Gardner had been previously disciplined for infractions involving time and attendance, the ALJ recommended that he be terminated.

According to Judge Merris, “the charges here reflect a seemingly incorrigible pattern of thirty-four proven instances of lateness over a period of fifteen months.” As to the justification for her recommendation that Gardner be dismissed, Judge Merris said:

Thus, by his conduct, [Gardner] continues to demonstrate an inability to conform his behavior to the Department’s standards. In light of the continued history of excessive lateness demonstrated here, the only appropriate penalty is that [Gardner] be terminated from his position.

May 06, 2011

Applying the Doctrine of Absolute Privilege

Applying the Doctrine of Absolute Privilege*
Van Donsel v Schrader, 2011 NY Slip Op 03698, Appellate Division, Third Department

Richard Van Donsel, the then Cortland County Attorney, sued Scott Schrader, the then Cortland County Administrator, alleging causes of action for defamation and intentional infliction of emotional distress.

The genesis of this action was characterized by the Appellate Division as “part of an ill-fated plan to construct a County facility.” The County contracted to acquire real property owned by one Steven Lissberger. The County then reneged on the contract and Lissberger sought damages. Subsequently Lissberger sold the parcel to a third party, and was represented in that sale by Ronald Walsh. Walsh, at the time, was also serving as an Assistant County Attorney.

Van Donsel negotiated a settlement of the Lissberger claim. Schrader conducted a pre-audit of the proposed settlement and recommended its rejection in a memorandum to the relevant Cortland County legislative committee. In the words of the Appellate Division, “Noting Lissberger's sale of the property for only $500 less than the price set out in his contract with the County and Walsh's connections with [Van Donsel] — points that [Von Donsel] had neglected to disclose in requesting approval of the settlement — [Schrader] further recommended that [Van Donsel’s] office be investigated 'for a possible criminal conspiracy and unethical behavior.'"

The Appellate Division held that Schrader’s statements to the legislative committee were protected by an absolute privilege and thus Schrader's motion for summary judgment should have been granted by Supreme Court.

The Appellate Division explained that "A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable," citing Park Knoll Assoc. v Schmidt, 59 NY2d 205. Further, said the court, “As a matter of public policy, an absolute privilege protects ‘communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings,'” citing Rosenberg v MetLife, Inc., 8 NY3d 359.

The comments objected to, however, must have been made in the context of official communications by "a principal executive of State or local government [or] those entrusted by law with considerable administrative or executive policy-making responsibilities." In contrast, merely participating in such proceedings is insufficient to trigger the privilege.

There is little question, said the court, that Schrader, the County's chief administrative officer and executive, constituted a high official to whom the absolute privilege doctrine applies. Further, the Appellate Division noted that both Schrader's memorandum and the statements therein were prepared in furtherance of his official duties, which included reviewing claims submitted for payment by the County, supervising its department heads, and making appropriate recommendations to the County Legislature.

Van Donsel did not dispute that public disclosure of Schrader’s memorandum was "required by law" but, said the court, contrary to Van Donsel's argument, the fact that it received attention in the news media did not remove Schrader's comments from falling within the ambit of the privilege.

While the Appellate Division noted that a claim for intentional infliction of emotional distress “is not flatly barred by absolute privilege,” it said that Van Donsel “failed to raise a [question] of fact as to whether [Schrader's] conduct was so extreme, outrageous, and beyond the bounds of human decency as to constitute" that tort. 

* See, also, a summary addressing the Doctrine of Qualified Immunity posted on the Internet at:

The decision is reported on the Internet at: 

See, also, Leonard v Schrader, 2011 NY Slip Op 03699, decided with this action and posted on the Internet at 

In Leonard Supreme Court held “the defenses of absolute and qualified privilege in abeyance.” The Appellate Division ruled that “for the reasons stated in Van Donsel v Schrader (supra), we agree with Schrader that he is entitled to summary judgment dismissing the complaint.”


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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