Court directs the reopening of the disciplinary hearing after finding that a key witness recanted the testimony he gave at the hearing

Court directs the reopening of the disciplinary hearing after finding that a key witness recanted the testimony he gave at the hearing

Matter of Alarcon v Board of Educ. of S. Orangetown Cent. School Dist., 2011 NY Slip Op 05055, Appellate Division, Second Department

The Board of Education of the South Orangetown Central School District adopted the findings and recommendation of the disciplinary hearing officer who found Marco Alarcon guilty of certain charges of misconduct and incompetence, and terminated Alarcon's employment. 

Alarcon appealed and the Appellate Division annulled the Board’s determination on the law and remitted the matter to the Board “for a hearing at which the evidence of recantation of testimony by witness” against Alarcon is to be received and considered and a new determination made.

The Appellate Division found that the hearing officer's recommendation was largely based upon the testimony of the eyewitness, one Ramon Reyes, who, after testifying, but prior to the issuance of the hearing officer's report and recommendation, recanted his testimony.

Reyes alleged, in a sworn affidavit, that the testimony he had given at the disciplinary hearing was false and that he gave such false testimony because his supervisor directed him to lie.

The court said that under the circumstances Alarcon should be given the opportunity to recall Reyes to testify and directed that the Board receive “this newly discovered evidence” and make a new determination thereafter.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05055.htm

Limitations on collective bargaining under the Taylor Law

Limitations on collective bargaining under the Taylor Law

City of New York v Uniformed Fire Officers Asso. App. Div., First Dept., 263 AD2d 3, Affirmed, 95 NY2d 273

Sometimes an investigation into criminal activities by a governmental agency is claimed to have violated the rights of employees in a negotiating unit set out in a collective bargaining agreement. Do the employee's rights under negotiated agreement's provisions trump the procedures being employed by the investigating body?

This was one of the critical issues in the Uniformed Fire Officers Association case. The conclusion of the Appellate Division: parties to a collective bargaining agreement may not limit the powers or authority vested in a governmental agency not a party to the agreement.

The other significant issue: which is the employer for the purposes of negotiating and administering a collective bargaining agreement with a city department -- the city or its constituent department? Here the Appellate Division concluded that the City of New York was not the employer insofar as a collective bargaining agreement between a union and the New York City Fire Department was concerned.

New York City's Department of Investigation (DOI) was conducting criminal investigations involving New York City Fire Department personnel. One investigation focused on allegations that firefighters had attempted to obtain greater pension benefits by falsely claiming that he or she had suffered a disabling injury while on duty.

According to the opinion of the Appellate Division, the alleged “scheme” involved one firefighter calling in a false alarm to give a second firefighter, who had suffered an injury that was not work related, an opportunity to claim that the injury was, in fact, sustained while he or she was responding to the alarm.

DOI's investigation included interviewing members of Uniformed Fire Officers Association, Local 854 [union], who were questioned pursuant to subpoena. The union filed a grievance contending that DOI had violated terms and conditions of its collective bargaining agreement with the New York Fire Department. It demanded arbitration, contending that the interviews with its members were conducted in violation of the employee rights under its Taylor Law contract.

The union's theory ran as follows:

DOI was a City agency. Since the City was the employer, DOI was bound by the terms of the collective bargaining agreement it had negotiated with the City's Fire Department.

The union charged that DOI investigators violated the collective bargaining agreement when it did not provide its members with the contractual protections it had negotiated such as:

1. Giving the unit member prior written notice of the matter being investigated;

2. Providing unit members with the statement of “Miranda” type rights set out in the Taylor Law contract;

3. Although the unit member could be represented by an attorney, he or she was not permitted to have a union representative present; and

4. The unit members were not given “use immunity” with respect to any information DOI obtained in a subsequent criminal proceedings.

The City contested the arbitrability of the dispute before the City's Office of Collective Bargaining [OCB], arguing that it never agreed to arbitrate the procedures used by DOI. OCB was not persuaded and issued a determination, Decision No. 46-97, holding that the dispute was arbitrable.

The City objected and filed a petition in State Supreme Court seeking to have OCB's determination annulled. It contended that:

1. A collective bargaining agreement cannot, as a matter of public policy, supplant or impair DOI's investigatory procedures; and

2. Public policy considerations prohibit the negotiation of the DOI's criminal investigation procedures.

Justice Harold Tompkins agreed and vacated OCB's order. The union appealed.

The Appellate Division commenced its review by noting that “[n]ormally, a party to a valid arbitration agreement is required to submit to arbitration and to defer any challenge to the proceeding until an award is rendered, either by way of an application to vacate the award or in opposition to an application to confirm the award.”

Where, however, a statute, court rulings or public policy considerations preclude arbitration, the question of whether the dispute is within the scope of the arbitration provision is not reached.

Here, said the court, public policy and decisional law prohibit any interference with the authority of DOI to require a public employee to answer questions regarding activities that bear upon the performance of his or her official actions.

Accordingly, the extent to which provisions of a collective bargaining agreement apply to interviews conducted by the DOI is not an issue that may be submitted to arbitration.

The Appellate Division said that the union's theory that the City of New York was the “employer” insofar as its bargaining agreement with the Fire Department was concerned was incorrect.

According to the decision “while the Fire Department may bargain away certain of its own management prerogatives in reaching a labor accord with the Uniformed Fire Officers Association, it has no power to defeat or impair rights conferred upon another City agency by statute.”

In other words, the Fire Department, rather than the City of New York, was the “employer” for the purposes of negotiating and enforcing the collective bargaining agreement under the Taylor Law.

The union conceded that the employee rights provision of its labor contract should not be read to restrict investigations into the activities of union members that are conducted by the New York City Police Department, another City agency.

According to the Appellate Division's decision, Section 803(b) of the City Charter assigns broad duties to DOI to investigate “the affairs, functions, accounts, methods, personnel or efficiency of any agency.”

The court said that adopting the union's position would impermissibly compromise DOI's authority by limiting its examination of witnesses by the terms of the collective bargaining agreement between the union and the Fire Department.

The Appellate Division concluded that because DOI's prerogative to employ such investigative procedures as it deems appropriate may not be bargained away, there is no reason to submit to arbitration the question of whether the employee rights provisions of the union's collective bargaining agreement are binding upon the DOI.

The court affirmed Justice Tompkins' order annulling OCB determination directing the union and the City arbitrate their dispute over whether their collective bargaining agreement governs the DOI's investigatory procedures.

When the appeal reached the Court of Appeals, it sustained the Appellate Division’s determination.

Filing a notice of claim as required by law a condition precedent to maintaining the lawsuit

Filing a notice of claim as required by law a condition precedent to maintaining the lawsuit

McKie v LaGuardia Community College/CUNY, 2011 NY Slip Op 04755, Appellate Division, First Department

In this employment discrimination action, Supreme Court dismissed Shirley A. Zuri McKie, finding that she had failed to file a notice of claim within 90 days of the events giving rise to the lawsuit she had filed against LaGuardia Community College and the City University of New York as required by Education Law § 6224[1],[2].

The Appellate Division affirmed the lower court’s ruling, holding that contrary to McKie’s contention to the contrary, the requirement of filing a notice of claim within 90 days as a condition precedent to bringing suit against a community college of the City University of New York and applies to all claims asserted against such community college, not just tort and wrongful death claims.”

In addition, the court rejected McKie’s claim that Education Law §6224 violates the Equal Protection Clause of the New York State Constitution “because it affords less protection to employees of junior colleges than it does to similarly situated employees of senior colleges.”

The Appellate Division noted that similar constitutional challenges have been rejected in prior cases, citing Guarrera v Lee Mem. Hosp., 51 AD2d 867, Leave to appeal denied, 39 NY2d 942. In this instance, said the court, it was not persuaded that the two classes of employees at issue here are similarly situated, or that the distinctions drawn between employees of junior colleges and those of senior colleges are not rationally based.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04755.htm

Essentially there are not to be any “Star Chamber” proceedings for Section 75 hearings without a court order*

Essentially there are not to be any “Star Chamber” proceedings for Section 75 hearings without a court order*

A footnote to “Testifying in a court room closed to the public, Bobb v Senkowski, CA2, 196 F.3d 350,” concerns the issue of holding Civil Service Law Section 75 disciplinary hearings that are closed to the public.

The basic rule: Unless the employee asks that it be closed and that request is granted by the hearing officer or agreed to by the appointing authority, the public may not be barred from the proceeding.

As to any application to close the hearing to the public, in the absence of the employer's agreement to do so, the employee must obtain a court order closing the proceeding to the public. By the same token, should the appointing authority wish the disciplinary hearing to be closed to the public, it must obtain a court order to that effect absent the employee's agreement to have the hearing closed to the public.

In contrast, the Commissioner of Education, in implementing Section 3020-a, adopted a rule [see 8 NYCRR 82-1.9] mandating that the hearing be closed to the public unless the accused individual makes a timely request to the hearing officer to have the hearing open to the public.**

The courts, however, have taken a somewhat different view in cases involving disciplinary action taken against a "professional" by an "oversight" or licensing agency for alleged professional misconduct. As the Court of Appeals noted in McBarnette v Sobol, 83 NY2d 333: ... even though the complaints are submitted to the physician, because these proceedings have traditionally been regarded as confidential (see, Doe v Office of Professional Med. Conduct of N.Y. State Dept. of Health, 81 NY2d 1050; Matter of Johnston Newspaper Corp. v Melino, 77 NY2d 1, 10; Matter of Capoccia, 59 NY2d 549, 553), the complainants' interests in privacy regarding these matters have not been abandoned. The policy of confidentiality that we would recognize absent the statute, because such policy "serves the purpose of safeguarding information that a potential complainant may regard as private or confidential and thereby removes a possible disincentive for filing complaints," remains intact (Matter of Johnston Newspaper Corp. v Melino, supra, at 10-11). This confidentiality also protects the accused physician by preventing any unwarranted mar upon that professional's reputation (id. at 11).

The confidential and safeguarded nature of proceedings involving potential discipline of licensed professionals has been reaffirmed by our recent holding that disciplinary proceedings should not be open to the public and disclosure should not occur before the proceedings have been finally determined (see, Doe v Office of Professional Med. Conduct of N. Y. State Dept. of Health, supra; see also, Matter of J.P. Chassin, 82 NY2d 694 [proceedings involving ophthalmology specialist must remain confidential until finally determined]).

The courts [and in the case of educators, the Commissioner of Education] have apparently decided to treat professional disciplinary matters, i.e., those involving physicians, engineers, lawyers and other "licensed" professionals differently than employees in the public service, with a then finer distinction drawn between those in the classified service such as those whose disciplinary action is subject to Civil Service Law Section 75 and those employed in education [serving in an unclassified service position] who must be licensed to teach or perform administrative duties in the public schools with respect to disciplinary action taken pursuant to Education Law Section 3020-a.

It appears that in a McBarnette situation the courts take the position that a "professional's reputation" could be irreparably injured notwithstanding the individual's acquittal or exoneration of the allegations made while in an employee disciplinary action the acquittal of the individual typically results in reinstatement with back salary by the same employer. The Commissioner seems to fall between these two views, permitting an open hearing only in those instances where the accused demands the hearing be open to the public.

* The Star Chamber Court, located in Westminster Palace, London, England, is so named because its sky-like ceiling was painted with stars. Initially it conducted its proceedings in public. Through political evolution, by the reign of Charles I it “had become a byword for misuse and abuse of power,” frequently conducting its sessions in secret. In 1641 the court was abolished by the so-called “Long Parliament.” Today Star Chamber is a euphemism for arbitrary proceedings conducted in secret to the detriment of personal rights and liberty.

** The genesis of this rule may reflect the fact that the disciplinary files of the Department of Education are “confidential and not subject to disclosure at the request of any person, except upon the order of a court in a pending action or proceeding” (Education Law § 6510 [8]), and thus a Section 3020-a disciplinary hearing should not be automatically open to the public.

The Bobb decision is posted on the Internet at:

http://federal.court.com/f.3d/196/196.F3d.350.99-2259.html

 

Termination of a probationer

Termination of a probationer

Morgan v Kerik, 305 AD2d 288 [2003], lv denied 1 NY3d 507

The New York City Department of Corrections terminated Steven Morgan, a probationary correction officer, without a hearing. Morgan sued in an effort to annul his dismissal, contending that he was terminated in bad faith.

According to the record before the court, Morgan was discharged after having twice violated the department’s sick leave rules.

On one occasion, he failed to report for a scheduled appointment with its Health Management Division while on “medical monitored return status.” The second violation occurred when Morgan neglected “to log in” with the Health Management Division’s Sick Desk upon returning to his residence while on sick leave status.

These violations, said the Appellate Division, were sufficient to demonstrate that Morgan’s termination during his probationary period was not made in bad faith. The court sustained the lower court dismissal of his petition.

It well settled that a probationer may be discharged without a hearing after completing his or her minimum probationary period. The only limitations: such a dismissal cannot be made in bad faith or in violation of a law, rule or regulation.

A probationer who is dismissed after completing his or her minimum period of probation may be entitled to a “name clearing hearing” if he or she believes that the dismissal adversely affects his or her reputation in the community or his or her future employment opportunities. Prevailing in a name clearing hearing, however, does not give the individual any right to reinstatement to his or her former position or back salary.

In addition, a collective bargaining agreement may provide a probationer with “due process rights,” or set out pre-termination procedures to be followed prior to dismissing a probationer, not mandated by the Civil Service Law.

In any event, if an appointing authority wishes to dismiss a probationer before he or she has completed the minimum period of probation set for the appointment, case law indicates that the employee is entitled to due process and may not be discharged without first being given “notice and hearing” as though he or she held a tenured appointment.

A probationer may allege that he or she was disciplined or terminated in retaliation for “whistle blowing.” In such a situation, Section 75-b of the Civil Service Law requires that the individual be given a due process hearing and if he or she prevails, reinstated to his or her former position with back salary. Such a hearing is to be provided pursuant to Section 75 or, where appropriate, pursuant to the “disciplinary grievance procedure” set out in a collective bargaining agreement. 

Work related disability

Work related disability

Cocco v NYC Dept. of Trans., 266 AD2d 634

From time to time, an employee will file a workers’ compensation claim alleging that his or her work aggravated a pre-existing condition. In the Cocco case, the Appellate Division, Third Department, sets out the distinction courts make in considering such cases.

The Workers’ Compensation Board had approved Cocco’s claim for benefits based on his contention that his work for the New York City Department of Transportation as a bridge painter aggravated his preexisting chronic obstructive pulmonary condition. The Board ruled that Cocco had suffered an occupational disease within the meaning of Workers’ Compensation Law Section 3(2)(30). The Department appealed.

The Appellate Division said that in this type of case, it all depends on whether the employee’s disability resulted from (a) a previously active disabling condition; or (b) the aggravation of a condition, which was previously dormant and not disabling.

The Appellate Division said that “[t]o be compensable, the preexisting condition must be dormant and nondisabling and some distinctive feature of the employment must cause disability by activating the condition.”

Cocco and his expert both testified that Cocco’s pulmonary condition was dormant and nondisabling, and that “his exposure to noxious substances as a bridge painter for the employer acted on the preexisting condition in such a manner as to cause disability which did not previously exist.”

This, said the court, constituted substantial evidence for the Board’s determination and sustained the award.

Some guidelines followed by the courts when reviewing disciplinary arbitration awards

Some guidelines followed by the courts when reviewing disciplinary arbitration awards
Matter of Watt v East Greenbush Cent. School Dist., 2011 NY Slip Op 04795,
510841

In considering an appeal of an adverse disciplinary arbitration pursuant to Article 75 of the Civil Practice Law and Rules, the Appellate Division observed that:

1. Courts must review Education Law §3020-a disciplinary determinations by a Hearing Officer in accordance with the provision set out in §7511 of the Civil Practice Law and Rules, which section permits vacatur of an award on grounds of misconduct, abuse of power or procedural defects.*
2. Where the parties are required to submit the matter to arbitration, in contrast to submitting the matter to “voluntary arbitration,” courts must ensure that the award comports with due process and is supported by adequate evidence 
3. A court, when conducting its review of an arbitration award, must accept the Hearing Officer's credibility determinations.
4. The free speech rights of school employees are not violated when a school district
   imposes discipline on teachers for directing ethnic slurs or disparaging comments towards students in class.
5. Ethnic comments deemed offensive or embarrassing by students is a proper basis for initiating disciplinary action against a teacher.

* Courts have also vacated arbitration awards found to violate “strong public policy.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04795.htm

Duty of fair representation

Duty of fair representation

Hickey v Hempstead Union Free School Dist., 36 AD3d 760

Robert L. Hickey’s lawsuit against the Hempstead Union Free School District involved provisions in the collective bargaining agreement negotiated between his union, the Hempstead School Administrator’s Association, and his employer, the Hempstead Union Free School District.

Supreme Court dismissed Hickey’s petition after finding that he “lacked standing” to maintain such an action. The Appellate Division agreed.

The Appellate Division pointed out that a union member generally has no individual rights under a collective bargaining agreement that he or she can enforce against an employer unless:

1. The negotiated agreement, by its terms, permits an individual to proceed directly against the employer to enforce a term or condition set out in the agreement, or

2. The union fails in its duty of fair representation.

As the collective bargaining agreement did not provide for negotiating unit members taking direct action against the school district, Hickey could only maintain his action if he could show that the Hempstead School Administrator’s Association violated its duty of fair representation with respect to his claim.

Here, said the court, Hickey’s petition did not contain any allegation that the Association had breached its duty of fair representation. Indeed, said the Appellate Division, in response to Hickey’s filing an improper practice charge against the Association with the Public Employment Relations Board (PERB), PERB dismissed his complaint, finding that the union had not breached its duty of fair representation. Hickey never appealed PERB’s determination.

The Appellate Division concluded that the Supreme Court properly granted the school district’s motion to dismiss the complaint on the ground that the Hickey lacked standing to maintain the action.

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_00493.htm

Teacher disqualified for unemployment insurance benefits after refusing substitute position

Teacher disqualified for unemployment insurance benefits after refusing substitute position

Kurtz v Henrietta Central School District v Commissioner of Labor, 37 AD3d 895

An art teacher was employed by the Rush Henrietta Central School District during the 2003-2004 school year. Her position was abolished effective July 1, 2004. The District, however, offered her a position as a long-term substitute art teacher for the first semester of the 2004-2005 school year to replace a teacher who was on maternity leave. The District made the offer in May 2004 and again in July 2004, but Kurtz did not accept it.

Kurtz had received over $4,000 in unemployment benefits when the district filed an objection with the Unemployment Insurance Board. After a hearing, Kurtz’s claim was disallowed “because she refused an offer of suitable employment without good cause.”

When Kurtz appealed, the Appellate Division sustained the Board’s determination, holding that “A claimant who rejects employment for which he or she is reasonably suited by training and experience will be disqualified from receiving unemployment insurance benefits.”

As Kurtz had the qualifications necessary to perform the duties of a long-term substitute art teacher, the court said that fact that it was a temporary position was not a legitimate reason for her to refuse to accept it.

Noting that the District’s human resources director testified that Kurtz would have received wages and benefits similar to those she received as a probationary art teacher, the Appellate Division said that:

Claimant's misunderstanding of the terms of the offer and her failure to make further inquiry concerning the same do not excuse her inaction. Furthermore, claimant's admitted failure to disclose the job offer when certifying for benefits supports the Board's finding that she made a willful misrepresentation and its decision to charge her with a recoverable overpayment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_00717.htm

New York Governor Andrew Cuomo introduces pension reform legislation

New York Governor Andrew Cuomo introduces pension reform legislation

Source: Office of the Governor

On June 9, 2011 Governor Andrew M. Cuomo introduced pension reform legislation that would impose a new Tier VI for future employees of the State and its political subdivisions other than New York City. Estimated savings of $93 billion over the next 30 years.

The bill also includes, at the request of Mayor Michael R. Bloomberg, a separate pension reform proposal for New York City and the uniformed services.

The new pension tier will increase the retirement age for new employees from 62 to 65, increase employee pension contributions and end so-called pension padding where employees accumulate substantial amounts of overtime in their final years of service to increase their pension.


Key elements of the proposed legislation:*

1. Raises the retirement age from 62 to 65

2. Ends early retirement

3. Requires employees to contribute six percent of their salary for the duration of their career

4. Provides 1.67 percent annual pension multiplier

5. Vests after 12 years instead of 10 years

6. Excludes overtime from final average salary

7. Uses a five-year final average salary calculation with an 8 percent anti-spiking cap

8. Excludes wages above the Governor's salary of $179,000 from the final average salary calculation

9. Eliminates lump sum payouts for unused vacation leave from the final average salary calculation

10. Prohibits the use of unused sick leave for additional service credit at retirement

The proposed reform of the state pension system would impact new hires by the state and local governments, including school districts.

The City of New York’s proposed pension reform plan would cover new employees of New York City, including the uniformed services.

The text of the proposed bill is available here. 

The text of the proposed bill memo is available here.

* Changes applicable to individuals eligible to elect to participate in the several optional retirement plans available to certain employees of the State Department of Education, the State University of New York and its community colleges and other entities are set out in Sections 25, 26 and 27 of the proposed legislation.

Policy limits on vacation travel during FMLA leave

Policy limits on vacation travel during FMLA leave

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

A federal district court recently upheld an employer's policy requiring an employee to remain in the immediate vicinity of their home as a condition of receiving paid sick leave, including during periods when the employee is on FMLA leave.  In limited circumstances, the policy allowed an employee to travel outside of the immediate vicinity of their home for medial treatment, family needs, and with the prior consent of the employer.  Violation of the policy could result in termination of paid leave, as well as discipline. 

Denise Pellegrino was employed by the Communications Workers of AMerica (CWA) in a clerical capacity.  Pursuant to the CWA FMLA-Sick Leave Policy, Pellegrino notified the CWA that she needed leave for surgery.  The CWA approved Pellegrino's request for FMLA leave, and notified her that she would be required to substitute paid sick leave for the absence.  While on approved leave, Pellegrino traveled to Cancun, Mexico, where she stayed for a week.  There was no medical or family reason for the trip, nor had she secured the CWA's prior consent to travel outside of the immediate vicinity of her home during leave. The CWA terminated Pellegrino for violation of the CWA's leave policies. 

Pellegrino filed suit alleging that her termination violated the FMLA.  CWA moved for summary judgment alleging that the FMLA did not protect Pellegrino from termination for a reason unrelated to her FMLA leave- namely, violation of the CWA policy restricting unapproved travel for someone receiving paid sick leave benefits.  CWA argued that it would have terminated her irrespective of her status under the FMLA as it had the right to enforce its policies restricting unapproved travel where an employee is on paid sick leave.   The Court agreed with the CWA.

The Court confirmed that the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave.  So long as employer policies do not conflict with or diminish an employee's FMLA rights, the FMLA, the Court found, "in no way prevent an employer from instituting policies to prevent the abuse of FMLA leave."  Here, CWA terminated Pellegrino because she violated CWA's Sickness and Absenteeism policy by leaving the immediate vicinity of her home without prior approval, or for any other permissible reason.  The Court reasoned that the policy served the legitimate purpose of ensuring that the privilege of paid sick leave is not abused. The Court also found that the policy does not discourage or prevent CWA employees from taking FMLA leave. 

The Court awarded summary judgment to the CWA for violation of the CWA travel restriction policy, a legitimate reason independent of her use of FMLA leave.

Mr. Bosland Comments: The FMLA does not prohibit an employer from enacting and enforcing leave and attendance policies to control leave abuse even where, as here, those policies may apply to FMLA leave.  Remember, under federal law, FMLA leave is always unpaid.  The only way an employee can get paid while on FMLA leave is pursuant to an employer's paid leave policy.  Employers are not required to offer paid sick or personal leave, but many do.  An employer's paid leave policy may not single out FMLA leave for special treatment.  Rather, as in Pellegrino, the paid leave policy should generally apply to all absences due to sickness or disability, which may also encompass FMLA leave.

In a fascinating footnote, the Court in dictum opined that, even if an employer did not have a formal policy restricting travel during FMLA leave, "no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country."  

I note that the FMLA generally does not require an employee on approved FMLA leave to notify an employer of their whereabouts during leave.  The Court's dictum would appear to impose such a requirement where none exists.  Absent a policy, I would not counsel employers to take adverse actions against employees for failure to provide notice of their intent to leave the vicinity of their homes during FMLA leave.    

The decision is consistent with a long line of cases allowing employers to impose and enforce neutral leave and attendance policies to curb leave abuse, even where the leave is covered by the FMLA.  

   

Pellegrino v. Communications Workers of America, AFL-CIO, Civil Action No. 10-0098 (W.D. Pa. May 18, 2011) http://op.bna.com/dlrcases.nsf/id/jaca-8h2m25/$File/Pellegrino.pdf

Former employee entitled to a name clearing hearing upon satisfying the “stigma plus” test

Former employee entitled to a name clearing hearing upon satisfying the “stigma plus” test

Knox v New York City Dept. of Educ., 2011 NY Slip Op 04735, Appellate Division, First Department

State Supreme Court, New York County rejected the New York City Department of Education’s motion to dismiss the petition filed by Dr. Tulsa Knox challenging the Department’s decisions that Dr. Knox was ineligible for re-employment, and granting Dr. Knox’s petition to the extent of remanding the matter for a name-clearing hearing.*

The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The court said that Dr. Knox had demonstrated "stigma plus," i.e., defamation by the government, coupled with a likelihood of dissemination of the stigmatizing material that could significantly impair her ability to gain employment as a school psychologist in the future.

The Appellate Division said that the placement of Dr. Knox’s name on the Department’s  "Ineligible/Inquiry List" and certain adverse information concerning Dr. Know had been  disseminated “not only within the Department of Education, but also to the Bronx County District Attorney's Office and the State Department of Education.” This, said the court, satisfied Dr. Knox’s burden of showing “stigma plus”.

* N.B. Absent a violation of a constitutional or statutory provision, reinstatement is not an available remedy to an individual even if vindicated at a name clearing hearing.

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04735.htm

Refusal to answer questions during an administrative disciplinary investigation

Refusal to answer questions during an administrative disciplinary investigation

Matter of Eck v County of Delaware, 36 AD3d 1180

There were many issues considered by the Appellate Division in deciding Eck’s appeal of an adverse Section 75 Civil Service Law disciplinary determination.

One issue involved the law regarding compelling an employee to answer questions concerning his performance against his will in the course of a pre-disciplinary investigation that could result in administrative disciplinary action and, or, criminal action being taken against the individual.

Kenneth R. Eck, Jr., a deputy sheriff with the Delaware County Sheriff’s Department, was served with Section 75 disciplinary charges.

Charges filed against Eck included the allegation that he had conducted an unauthorized investigation of two Delaware County employees, one of whom was Eck’s former wife, because of Eck’s suspicion that the two were involved in a romantic relationship.

Among the several charges leveled against Eck was one that alleged that he refused to answer questions regarding his activities during the Sheriff’s investigation of incident.

The Section 75 Hearing Officer found Eck guilty of the charges filed against him. After reviewing Eck’s personnel file, the Hearing Officer recommended Eck be dismissed from his position. The County adopted the Hearing Officer’s findings and recommendation and terminated Eck.

In rejecting Eck’s appeal seeking reinstatement to his former position, the Appellate Divisions considered a number of elements raised by Eck in an effort to have the disciplinary decision vacated. One element concerned Eck’s argument that the disciplinary action was unlawful because it compromised his Fifth Amendment constitutional right against self-incrimination.

In response to Eck’s claim that he could not be disciplined for invoking his Fifth Amendment privilege against self-incrimination when he refused to answer certain questions posed by the attorney representing the County during the investigation of his “activities during off-duty hours,” the Appellate Division pointed out that:

1. It is understood that the Fifth Amendment privilege against self-incrimination protects an individual not only in the context of a criminal trial, “but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”

2. An individual’s “[a]nswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying”.

3. In a situation where a public employee is compelled to answer questions or face dismissal, the individual’s responses are automatically cloaked with immunity.

Accordingly, said the court, “where a public servant . . . refuses ‘to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity, . . . the privilege against self-incrimination would not [be] a bar to his dismissal’”

In this instance the court found that “the questions were narrowly tailored to the matters under investigation and [Eck] was compelled to answer them on pain of termination, his answers would have been automatically cloaked by immunity.”* In view of this, the Appellate Division concluded that Eck’s “assertion of his Fifth Amendment privilege did not bar disciplinary action against him.”

This, together with the Hearing Officer’s finding that Eck (1) used his position to obtain information about a co-workers whereabouts in furtherance of his own unauthorized investigation; (2) his surveillance endangered the co-worker, who often worked undercover; (3) he disparaged the Sheriff and the Sheriff’s Department in the presence of other officers and civilians; and (4) he disclosed information about his disciplinary hearing after being instructed not to discuss it, persuaded the Appellate Division that under the circumstances, “the penalty of termination is not disproportionate to these offenses.”

* This is often referred to as “use immunity.”

Employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual

Employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual
Matter of Hickey v New York City Dept. of Education, 2011 NY Slip Op 04541, Court of Appeals

Helen Hickey and Rachael Cohn, tenured teachers in the New York City School system, commenced Article 78 proceedings against the Board of Education seeking court orders compelling the Board to expunge "letters of reprimand" from their respective personnel files, contending that the Board’s actions failed follow Education Law §3020-a disciplinary procedures. Both letters had been placed in their respective personnel files and indicated that the matter "may lead to further disciplinary action."*

The Board contended that the letters were properly placed in the teachers’ files because, pursuant to the controlling Collective Bargaining Agreement, their union had negotiated a waiver of the §3020-a procedures with respect to the placement of letters of reprimand in tenured teacher's files and it had been replaced with a different procedure.

Education Law §3020(1) provides: "No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section [3020]-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement."

Noting that §3020-a does not define "discipline," the Court of Appeals said that §3020-a authorizes a hearing officer to impose as a penalty "a written reprimand, a fine, suspension . . . without pay, or dismissal." Section 3020(4)(a), said the Court, further provides that "Notwithstanding any inconsistent provision of law, the procedures set forth in section [3020]-a of this article . . . may be modified by agreements negotiated between the city school district of the city of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by such city school district and the united federation of teachers on or after [June, 10, 2002]."

The Court of Appeals, assuming, but not deciding, that the letters complain of constituted "discipline" for purposes of §3020-a, decided “there is ample basis to conclude that the union knowingly waived the procedural rights granted in Education Law §3020-a in this limited arena.”

As the letters at issue were held as not being subject to §3020-a procedures, the Court ruled that neither Hickey nor Cohen was not entitled to have them expunged from their respective personnel files.

This not the first time that the Court of Appeals has addressed the issue of alternatives to a statutory disciplinary procedure. In Antinore v State [40 NY2d 6] the Court said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutary proceedure that it replaced.

The collective bargaining agreement** controlling in Antinore provided that an individual served with administrative disciplinary charges could elect either a disciplinary proceeding set out in a collective bargaining agreement or, in the alternative, elect to have the matter considered pursuant to a statutory disciplinary procedure, in this instance Civil Service Law §75.

Antinore elected to have the charges filed against him adjudicated pursuant to the procedure set out in the collective bargaining agreement. After the arbitrator found him guilty, Antinore sued, contending that he was entitled to a §75 disciplinary hearing as a matter of law. The Court of Appeal rejected his claim, holding that where an individual has elected to have disciplinary charges filed against him or her adjudicated pursuant to a process that provided administrative due process, he or she may not later claim the right to relitigate the charges under a statutory due process proceeding.

Significantly, the Court of Appeals said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure if the alternate procedure provided constitutional due process protections equivalent to those available under the statute it replaced.

* See http://publicpersonnellaw.blogspot.com/2011/01/constructive-criticism-or-discipline.html setting out the differences between letters constituting “constructive criticism” and letters constituting “reprimand.”

** This option was set out in the initial collective bargaining agreement negotiated between the State as an employer and the Civil Service Employees Association with respect to employees in negotiating units represented by CSEA.

The Hickey decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04541.htm

Rules of the New York State Civil Service Commission typically do not control with respect to employees of a political subdivision of the State.

Rules of the New York State Civil Service Commission typically do not control with respect to employees of a political subdivision of the State.

Matter of Civil Serv. Employees Assn., Inc. v Baldwin Union Free School Dist., 2011 NY Slip Op 04461, Appellate Division, Second Department

Francesco Pignataro, an employee of the Baldwin Union Free School District, filed a grievance and a demand for arbitration alleging that the District wrongly removed him from the payroll. Ultimately a proposed settlement of the matter was negotiated pursuant to which, among other things, it was agreed that Pignataro would receive the sum of $50,000 as compensation for his leave accruals in exchange for his resignation and the withdrawal of his grievance.

The Appellate Division subsequently ruled that Pignataro's letter of resignation was not "delivered" to the Board so as to preclude Pignataro from unilaterally withdrawing his letter of resignation without the Board's consent "under the pertinent Civil Service Law regulation (see 4 NYCRR 5.3[c])."*

However, 4 NYCRR 1.1, Application of rules, provides that

“Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service.”

Accordingly, 4 NYCRR 5.3[c] controls only with respect to employees of the State of New York as an employer and those entities for which the Civil Service Law is administered by the New York State Department of Civil Service. The Baldwin Union Free School District is not such an entity.

A number of local civil service commissions have adopted a rule similar to 4 NYCRR 5.3[c].** For example, Westchester County Civil Service Rule 17 addresses resignations and provides, in pertinent part, as follows:

“17.3 Withdrawal or amendment [of a resignation]. A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

In the event the Nassau County Civil Service Commission has adopted a rule addressing the ability of an individual to withdraw his or her resignation, presumably the Appellate Division would apply that rule in resolving the matter.

* 4 NYCRR 5.3(c) provides that a resignation of a civil service employee, which must be in writing, "may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority." However, this rule applies only to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions have adopted a similar rule.:

** Section 20 of the Civil Service Law sets out the procedures to be followed by a local civil service commission or personnel officer wishing to amend its “personnel rules.” It provides that such rules may be amended only after a public hearing and requires the approval of the State Civil Service Commission. Finally, to have the “force and effect of law,” the amendment must be filed with the Secretary of State to complete the process.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04461.htm

Appellate Division holds that Commissioner of Education has primary jurisdiction to decide tenure area matters

Appellate Division holds that Commissioner of Education has initial jurisdiction to decide tenure area matters

Matter of Moraitis v Board of Educ. Deer Park Union Free School Dist., 2011 NY Slip Op 04254, Appellate Division, Second Department

Deep Park granted Regina Moraitis tenure in the position of "computer teacher," effective August 31, 2003. On January 16, 2009, her position as "computer teacher" was abolished.  

Moraitis filed a proceeding pursuant to CPLR Article 78 seeking a court order compelling Deer Park to reinstate her as a full-time teacher in an accepted tenure area. Supreme Court granted Moraitis’ petition directing Deer Park to “reclassify” Moraitis into an accepted tenure area without loss of tenure time, directed her reinstatement as a full-time teacher, and directed the reinstatement of her benefits from the date of dismissal, with damages in the nature of lost salary and insurance payments.

Deer Park appealed and the Appellate Division vacated the lower court’s ruling.*

The Appellate Division, agreeing with Deer Park’s contention that the proceeding should have been dismissed on the ground that the Commissioner of Education had primary jurisdiction** over the dispute, explained: “It is within the unique knowledge and expertise of the Commissioner of Education to determine the factual issues of whether the [Moraitis] has tenure in an accepted tenure area, and whether her former position, and any new position which she may seek, are similar in nature.


* The Appellate Division, in considering a procedural defense, noted that “Under the facts of this case, a notice of claim pursuant to Education Law §3813(1) was not required.”

** "The doctrine of primary jurisdiction,” -- where the courts and an administrative agency have concurrent jurisdiction and the dispute involves issues beyond the conventional experience of judges . . . "the court will stay its hand until the agency has applied its expertise to the salient questions" [see Flacke v Onondaga Landfill Sys., 69 NY2d 355].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04254.htm

The Five-Step Program for Effective Discipline

The Five-Step Program for Effective Discipline

Reprinted with permission from HR Matters E-Tips, copyright Personnel Policy Service, Inc., Louisville, KY, all rights reserved, the HR Policy and Employment Law Compliance Experts for over 35 years, 1-800-437-3735.  Personnel Policy Service markets group legal service benefits and publishes HR information products, including the free weekly electronic newsletter, HR Matters E-Tips (http://www.ppspublishers.com/hrmetips.htm).  This article is not intended as legal advice.  Readers are encouraged to seek appropriate legal or other professional advice.

No one likes to discipline employees, and as a result supervisors may ignore problem behavior just to avoid confrontation. But, an effective disciplinary procedure is a necessary component of solid employment policies. Below are four pointers to help you determine what type of discipline is appropriate and a five-step progressive disciplinary system you can implement. 

Yet, inaction can be equally dangerous if employee behavior problems are consistently ignored. When your managers do not actively address poor performance and misconduct, morale and productivity will suffer. You can relieve some of this unavoidable stress by establishing clear expectations for employee behavior and by training supervisors to take a proactive approach using a five-step combination of corrective counseling and progressive discipline. This approach should require supervisors to confront employee performance and misconduct problems and to document the proceedings. Further, it should give employees specific feedback, plus action plans and timelines for improvement. * Four Considerations to Determine the Appropriate Discipline * The type of corrective action you should take in a given situation generally depends on four issues: (1) the nature and seriousness of the infraction, (2) whether it is a first time or repeat offense, (3) past handling of similar disciplinary problems, and (4) whether there are special circumstances impacting the level of needed response. (Download free Disciplinary Procedure model policy including HR best practices and legal background.) * Step One: Informal Counseling * Unless an employee has engaged in a serious or repeated offense, the most appropriate initial response normally is to have an informal, yet specific, solutions-oriented coaching session with the employee. During this discussion you should: 1. Remind the employee of pertinent policies and work rules; 2. Provide concrete examples of how the employee’s behavior or performance has fallen short of expectations; 3. Explain the impact of the employee’s deficiencies on the organization and coworkers; and 4. Describe actions the employee needs to take to correct the problem. In many instances, having one or two candid discussions is all you need to help a wayward employee get back on track. * Steps Two Through Five: Progressive Discipline * When the informal coaching attempts fail, or when there is more serious misconduct, formal disciplinary action is necessary. Most organizations follow a “progressive discipline” policy where employees incur increasingly severe consequences for repeated infractions or for the continued failure to remedy deficiencies. Typically, the normal progression in this type of a system is a formal verbal warning, one or two written warnings, suspension, and, finally, termination. 1. Oral warning and counseling. Here, you identify the problem, state your expectations, and explain the adverse consequences if uncorrected. This first disciplinary step is similar to the informal coaching session since it is intended to counsel the employee on improvement. However, the employee should understand that he is now at risk for additional disciplinary action if he does not improve. You should keep a confidential record of the session and put a copy in the employee’s personnel file.

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2. Written warning. If the employee’s behavior does not improve, a written warning should follow. As with oral notice, you again inform the employee of the performance expectations and required changes, but also give the employee formal written notice conveying the increased seriousness. A copy of the warning also should be placed in the employee’s personnel file. 3. Suspension. The next step is a suspension, often referred to as a “decision-making leave.” Its purpose is to place the employee on final notice and force a commitment to improve, or face termination. 4. Termination. If all efforts fail and the employee’s performance does not improve or misconduct continues, the final step is termination. (Of course, in certain circumstances involving particularly bad behavior, termination may be appropriate as the only disciplinary step.) To ensure that discharge is the proper response, all decisions should be reviewed by at least one level of management above the immediate supervisor, and by the HR manager. This review provides a system of checks and balances and should catch questionable decisions that warrant further legal review. * Four More Tips to Effective Discipline * Once you have decided to implement a progressive disciplinary system, you also have to support it with your policies and procedures. To this end, you should: 1. Develop sound written policies. It is safest to have a written discipline policy that provides clear guidelines and, at the same time, reserves your right to exercise discretion in the actual handling of unacceptable behavior or performance. Some employers resist developing a written discipline policy on the grounds that they want to maintain desired flexibility. This approach can easily lead to arbitrary, inconsistent, and even discriminatory treatment of employees. (Download free Disciplinary Procedure model policy including HR best practices and legal background.) 2. Implement disciplinary procedures fairly and carefully. Make it clear to your workforce that the goal of your discipline system is correction of problem behaviors and not punishment for the sake of punishment. Employees are more likely to accept discipline when counseling and disciplinary procedures emphasize employee improvement and when warnings are given before more severe discipline is imposed. At every phase of corrective action, the employee should be given the opportunity to respond and give feedback. 3. Train supervisors in their roles and responsibilities. Supervisors are management’s frontline contact and play a pivotal role in dealing with conduct and performance issues. You should support this role by providing proper training to spot and handle problem behaviors and by lending expertise, guidance, and support when formal disciplinary action is necessary. In addition, supervisors should be carefully trained about the vital relationship between proper discipline and employment law compliance. 4. Require and maintain accurate documentation. Proper documentation of employee problems and related corrective actions is essential to support and validate your disciplinary process. First, it provides an accurate accounting of the steps taken to help the employee improve and can be used to evaluate the employee. Second, it provides a critical line of defense if you have to justify your actions or defend a lawsuit.

Governor Cuomo’s letter to the Chancellor of the Board of Regents regarding performance evaluations for teachers

Governor Cuomo’s letter to the Chancellor of the Board of Regents regarding performance evaluations for teachers

Source: Office of the Governor

On May 13, 2011 Governor Andrew M. Cuomo sent the following letter to the Chancellor of the Board of Regents Merryl Tisch regarding changes needed to improve and accelerate performance evaluations for teachers.

The Governor's full letter is as follows:

Dear Chancellor Tisch:

Performance is the key to education. It's not about how much we spend, but the results that matter. As data show our education spending hasn't resulted in performance. New York schools spend 71 percent more than the national average, yet rank only 40^th in graduation rates and 34^th in the nation in the percentage of adults who have a high school diploma or the equivalent.

We must focus on measures and accountability. That is why the State Education Department's ("SED") current process to develop a teacher and principal evaluation system is critically important. We not only need a strong evaluation system that will improve the performance of our children, but also to support our educators so they can continually develop and improve. Our goal should be to have the best system of evaluation in the nation, yet our proposed system falls short of other states, such as Colorado and Tennessee.

What SED establishes today will have a lasting effect for decades to come so it is imperative it's done correctly. The current Draft Regulations for Teacher and Principal Evaluation ("Draft Regulations") that were recently issued, however, need revision if we are to implement a system that will be the building blocks to greater performance in our education system.

Although there are a number of details in need of improvement, we recommend SED make the following comprehensive changes:

· Increase the percentage of statewide objective data, like measuring student growth on statewide test scores, used to evaluate teacher performance; · Impose rigorous classroom observation and other subjective measures standards on school districts when evaluating teacher performance; · Require a positive teacher evaluation rating be given only when the teacher receives a combined positive rating on both subjective and objective measures, such as student growth on statewide tests; and, · Accelerate the implementation of the evaluation system.

These are discussed in more detail below and, if implemented, will greatly strengthen the evaluation process.

· First, remove the explicit language prohibiting the same measure of student growth on state assessments from being used for locally-selected assessment measures and state measures simultaneously

The Draft Regulations explicitly bar a school district from using the same measure of student growth on the same assessment for both the state assessment subcomponent and the locally-selected measures subcomponent. We believe such a prohibition is unnecessarily restrictive because it precludes a school district from using the objective state-developed growth measure for the locally-selected measures.

The Draft Regulations should be amended to permit the same student growth measure be used for the state assessment and locally-selected measures. By removing this prohibition in the Draft Regulations, up to 40 percent of the total score could be based on objective student growth measures on state tests—a percentage that is closer to many other states.

This change would ensure that greater balance is struck between using objective teacher evaluation measures, such as statewide testing, and subjective teacher evaluation measures, such as classroom observation. Given that the subjective measures have far greater weight under the evaluation process system, it is imperative that the Draft Regulations adopted do not explicitly reduce the types of objective assessments, such as growth on state tests, available to be used.

· Second, impose additional standards on school districts to improve the 60 percent of locally-developed rubric requirements, such as the observation process, to make evaluations more rigorous

The Draft Regulations must be strengthened and better defined to make the 60 percent subjective criteria to evaluate teachers more valuable. Already, New York is an outlier as compared to other states in that it requires more weight be given to subjective measures when rating teachers. Therefore, it is critical that the Draft Regulations include greater precision and impose clear standards.

For example, under the Draft Regulations, half of the 60 percent of the locally-developed rubric must be based on classroom observation. Studies have shown that a rigorous evaluation program based on classroom observation is a significant component in promoting student achievement growth. As such, the classroom observation requirement should be increased from half to at least 40 percent of the 60 percent total of the locally-developed rubric.

Moreover, the Draft Regulations should establish baseline standards to make classroom observation a more meaningful measure. At a minimum it is vital that the Draft Regulations require multiple annual observations and include criteria for using third party observers.

· Third, require a positive teacher evaluation rating be given only when the teacher receives a combined positive rating on both subjective and objective measures, such as student growth on statewide tests

As was discussed above, under the Draft Regulations, objective measurements (e.g. state assessments) have lower weight than subjective measurements to evaluate teachers. In addition, there is no guarantee that objective measures have much meaning in the currently proposed scoring bands. In essence, a teacher could receive a positive rating, such as "developing", based only on subjective teacher evaluation measures.

Other states, such as Delaware and Rhode Island, require "effective" ratings in both the subjective and objective testing measures in order for a teacher or principal to receive an overall "effective" rating. No such requirement exists under the Draft Regulations and therefore diminishes the weight given to objective measurements in the evaluation process. Therefore, at a minimum, the scoring bands should be adjusted to give greater weight to the objective measures by not allowing a positive rating based on subjective measures alone. As an alternative, it is recommended that a teacher or principal be rated "effective" in both objective and subjective categories in order to receive an overall "effective" or "highly effective" rating.

· Fourth, accelerate the timetable of implementing the evaluation system

I appreciate your assistance in accelerating the process so the evaluation system could be implemented for all teachers prior to the full implementation deadline of the 2012-13 school year. However, we must make sure that school districts begin the process in an expeditious manner. Endless implementation delays will hamper our ability to ensure our children are getting the best education, because a system not implemented is of no use.

Since SED has articulated the criteria for implementing the entire teacher and principal evaluation system, schools districts should fully implement the teacher and principal evaluation system for the 2011-12 school year and therefore the Draft Regulations should authorize school districts to do so.

Finally, my Administration will aggressively seek to incentivize schools districts to implement the evaluation system expeditiously. Therefore, only those districts that actually perform, and implement the teacher and principal evaluation system, would be eligible for the Executive's School Performance Incentive Program—a $500 million program—that I included in the Executive Budget. School districts would potentially lose millions of dollars on state awards for failure to implement the system quickly.

We must not squander the opportunity to set the right course and make New York a leader in evaluating performance in our education system. If done correctly we will revive our education system to ensure students perform better and succeed in their future careers. The recommendations above will help set the course. Now is our chance to make New York a leader in education performance.

Sincerely,
Andrew M. Cuomo
Governor

The doctrine of primary jurisdiction and the doctrine of the exhaustion of administrative remedies considered in determining the jurisdiction of the court

The doctrine of primary jurisdiction and the doctrine of the exhaustion of administrative remedies considered in determining the jurisdiction of the court
Matter of Neumann v Wyandanch Union Free School Dist., 2011 NY Slip Op 03859, Appellate Division, Second Department 

Sally Neumann sued the Wyandanch Union Free School District for its alleged breach of her employment contract. Supreme Court’s dismissal of Neumann’s breach of contract action. Neumann also claimed that she had attained tenure by estoppel as “Director of Technology” with the school district

Neumann, was employed by Wyandanch as its "Director of Technology" in November 2004. She was later transferred to the position of "Assistant Superintendent for Curriculum and Technology." In September 2008 the District assigned her to the position of "Assistant Director for Curriculum and Technology."

The collective bargaining agreement between the District and the Wyandanch Administrators Association provided that "Director" positions were eligible for tenure and represented by the Association, but the "Assistant Superintendent" position was nontenured and excluded from Association membership.

In July 2008, Neumann had entered into an employment contract with the District for her third year of employment as Assistant Superintendent. The contract provided that the "terms and conditions of employment" not otherwise addressed in the contract were incorporated from the collective bargaining agreement. Under the collective bargaining agreement, claims relating to its terms were subject to a mandatory grievance process.

In September 2008, following her assignment to the "Assistant Director for Curriculum and Technology" position, the District reduced Neumann's salary to $135,706. In November 2008, the District abolished Neumann's position, and no longer paid her a salary after that date.

Neumann commenced a hybrid CPLR article 78 proceeding and plenary action seeking a judgment declaring that she had acquired tenure by estoppel as a Director based in part on her service in the Assistant Superintendent position. She also sought damages based on the District's alleged breach of contract when it reduced and finally ceased to pay her the salary provided for in the July 2008 employment agreement.

The Supreme Court, relying on the doctrine of primary jurisdiction, dismissed Neumann’s action claiming she had acquired tenure by estoppel and directed her to raise her tenure claim before the Commissioner of Education. The court also dismissed her claim alleging breach of contract.

Addressing "The doctrine of primary jurisdiction,” the court explained that the doctrine provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions," citing Flacke v Onondaga Landfill Sys., 69 NY2d 355. Further, said the court, "The doctrine . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. In such situations “the judicial process is suspended pending referral of such issues to the administrative body for its views.'"

In contrast, where the determination does not require the special competence of an administrative agency, the doctrine does not apply.

In this instance the Appellate Division ruled that the interpretation and enforcement of Neumann's employment agreement was not within the Commissioner of Education's specialized knowledge and experience. Rather its interpretation and enforcement depends on common-law contract rules that lie within the purview of the judiciary. Accordingly, said the court, Supreme Court’s dismissal of Neumann’s cause of action alleging breach of contract under color of the doctrine of primary jurisdiction was improper and the Supreme Court should have retained jurisdiction to decide that cause of action.

As to the School District’s argument that Neumann’s dismissal was nevertheless proper because she was required to exhaust her administrative remedies by submitting the matter to the grievance procedure mandated under the collective bargaining agreement, the Appellate Division said that “the clear terms of [Neumann’s employment agreement and relevant provisions of the collective bargaining agreement” indicate that Association’s grievance remedies were not available to Neumann with respect to her cause of action alleging breach of contract.

Consequently, Neumann was entitled to seek judicial review directly, and thus her cause of action breach of contract should not have been dismissed.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03859.htm

Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented

Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented 

Matter of Iarocci v Incorporated Vil. of W. Haverstraw, 2011 NY Slip Op 50794(U), Supreme Court, Rockland County, Judge Alfred J. Weiner [Not selected for publication in the Official Reports.] 

Michael Iarocci was served with disciplinary charges pursuant to §75 Civil Service. He was found guilty a pattern of excessive absences over an 18-month period.* 

Iarocci contended that his absences were all for valid reasons and that his termination was contrary to law and was arbitrary and capricious. The Village, on the other hand, argued that Iarocci’s “excessive absences” made him unreliable and, therefore, incompetent to perform his duties. 

The §75 Hearing Officer found there was "...substantial evidence to support the charge of incompetence based upon [Iarocci’s] excessive absences but that [his] absences did not affect the morale of the department to the extent that it was ... asserted in conclusory fashion by the witnesses who testified."  The Hearing Officer recommended that Iarocci be suspended for a period of 90 days without pay and that upon his return placed on disciplinary probationary for an appropriate period of time.

West Haverstraw accepted the findings of the Hearing Officer but imposed the penalty of dismissal.

Iarocci appealed that Judge Weiner said that the issue before him was whether the penalty of termination was "so disproportionate as to shock one's sense of fairness?" 

Citing Matter of Featherstone v. Franco, 95 NY2d 550, Judge Weiner said that “Judicial review of an administrative penalty is limited to whether the measure or mode of penalty of discipline imposed constitutes an abuse of discretion as a matter of law.” Further, the court observed, in Pell v Board of Education, 34 NY2d 222, the Court of Appeals set out the standard for determining the appropriate penalty is whether the punishment imposed is "...so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Weiner then set out a number of decision in which courts have upheld the termination of a public employee found guilty of “excessive absence” including McKinnon v. Board of Educ. of North Bellmore Union Free School Dist. 273 AD2d 240, Alston v. Morgan 245 AD2d 287, and Romano v. Town Bd. of Town of Colonie, 200 AD2d 934.

Here, however, the record indicated that Iarocci had received authorization from his employer for his absences, followed the appropriate call-in procedures and obtained appropriate medical documentation when necessary. Further, the court found that he was never warned about his excessive absences or charged with insubordination or other misconduct. 

Other mitigating circumstances considered by Judge Weiner included Iarocci employment for ten years and no prior disciplinary problems; his frequent absences commenced only began after he had gallbladder surgery and later suffered an employment related back injury; and his promotion from Motor Equipment Operator I to Motor Equipment Operator II by West Haverstraw. 

Distinguishing Iarocci’s situation from the facts underlying the several cases in which termination has been imposed for excessive absenteeism, Judge Weiner noted that “When absenteeism has been authorized by an employer and properly documented according to procedure, termination for excessive absenteeism has not been imposed upon an employee unless it was coupled with more aggravating factors, including insubordination, [following] progressive discipline and other incidents of poor performance at work.”

Rulling that penalty of termination imposed upon Iarocci by West Haverstraw was  “disproportionate to the offense charged …” Judge Weiner said that the Town “should have given due weight to mitigating factors when deciding the appropriate penalty to impose.”

Annulling the penalty of dismissal, Judge Weiner remanded the matter to the Village Board “for the imposition of a penalty other than termination.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50794.htm