ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

May 11, 2011

Zero tolerance drug policy

Zero tolerance drug policy
Dept. of Corrections v Robbins, OATH 2030/99

Many employers have initiated “zero tolerance” policies requiring the automatic dismissal of individuals found to have violated the policy. These “zero tolerance” policies address a number of situations that the employer views as disruptive or dangerous, the most common involving the use of drugs by employees, on or off the job.

The New York City Department of Corrections had established a “zero tolerance” drug policy providing for the termination of any employee, uniformed (i.e., correction officers), or civilian, who violated the policy. Its justification: the policy serves important functions by acting as a deterrent against drug traffic in its facilities and ensured that “the security of penal institutions is not breached.”

Was dismissal the appropriate penalty in a case involving a civilian employee -- a dietary aide -- found to have smoked one marijuana cigarette, off-duty, almost two years before being charged with violating the policy? The administrative law judge did not believe it was, concluding that there are instances, particularly where a civilian employee is involved, when the “automatic penalty” under the department’s zero tolerance drug policy should not be applied.

The employee, Anthony Robbins, admitted he was guilty of the charge of using marijuana while off-duty. Although the department wanted him terminated for violating its “zero tolerance” drug policy, the hearing officer recommended that a lesser penalty be imposed. The mitigating circumstances set out by the hearing officer justifying the deviation from the policy included the following:

1. Since the time of the incident, Robbins had been in counseling, had undergone drug testing, and laboratory reports indicated that he tested negative for drugs.

2. The employee has continued in counseling and still undergoes, as part of counseling, drug screening.

3. The risk of Robbins’ being involved in drug smuggling at the facility is so negligible as to be speculative and therefore cannot justify termination.

4. In previous cases involving violations of the “zero tolerance” policy by civilian workers, the individuals were not terminated and lesser penalties were imposed by the department.

5. The department did not subject civilian workers to random drug testing procedures although it required uniformed employees to submit to random drug tests.

6. In one instance the department “converted a penalty of termination into a lengthy suspension with random drug testing against a correction officer found to have tested positive for marijuana.”

The hearing officer concluded these “mitigating circumstances” justified a departure from the “zero tolerance” policy’s “automatic termination” provision.

May 10, 2011

Disciplinary hearings involving police officers are open to the public

Disciplinary hearings involving police officers are open to the public 
Matter of Doe v City of Schenectady, 2011 NY Slip Op 03694, Appellate Division, Third Department

The City of Schenectady appealed an order and judgment of the Supreme Court Judge Barry Kramer that among other things, ”permanently enjoined” Schenectady from permitting the public to attend disciplinary hearings involving City of Schenectady police officers.* 

In response to Schenectady’s Public Safety Commissioner Wayne E. Bennett advising the City Council of his plan to modify the City's police disciplinary process notwithstanding the disciplinary procedures set out in the collective bargaining agreement between the City and the Schenectady Police Benevolent Association (SPBA), SPBA filed an improper practice charge against the City with the Public Employment Relations Board (PERB).

The City filed its own improper practice charge against SPBA with PERB, asserting, that SPBA had impermissibly sought to negotiate disciplinary proceedings, which the City contended was a prohibited subject of collective bargaining.

Bennett issued a general order setting out the new disciplinary proceedings policy providing, among other things, that such proceedings would in the future be governed by Second Class Cities Law §137, pursuant to which Bennett would be the sole trier of fact and the formerly-confidential disciplinary hearings would be open to the public.

Subsequently SPBA filed an amended improper practice charge alleging that the parties' collective bargaining agreement governed disciplinary procedures and could not be unilaterally modified by respondents.

While the City's and SPBA's charges were pending before PERB, two police officers, James Roe and John Doe, were each served with a notice of discipline and advised that, pursuant to Second Class Cities Law §137, the City would be conducting public hearings with respect to those disciplinary charges. SPBA’s petition set out two causes of action:

1. Pursuant to Civil Rights Law §50-a and Public Officers Law Article 6-A, Roe and Doe were entitled to declaratory relief in that police disciplinary hearings must be confidential; and

2. The City’s "unilateral use of public hearings . . . in connection with [police] disciplinary proceedings [was] in excess of [the City’s] jurisdiction, illegal and contrary to law, in violation of lawful procedure and the [D]ue [P]rocess [C]lauses of the State and Federal Constitutions and [was] arbitrary, capricious and an abuse of discretion."

Ultimately Supreme Court ruled that Civil Rights Law §50-a superseded Second Class Cities Law §137 and that the legislative intent of §50-a would be thwarted by public disciplinary hearings.

The Appellate Division, in vacating Judge Kremer’s ruling, said that “individual police officers possess no private right of action for claimed violations of Civil Rights Law §50-a and for this reason alone the petition/complaint should have been dismissed to that extent.

Commenting that §50-a provided an exemption of document that might otherwise be disclosed pursuant to Freedom of Information Law (Article 6, Public Officers Law) but noting in that section “mentions the word disciplinary hearing, let alone requires that such hearings be held in private and we discern no import from this omission other than the obvious — that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended.”

Citing Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, affd 67 NY2d 562, the Appellate Division said that the legislative history of §50-a indicates that the "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination."

Concluding that SPBA failed to state a cause of action or legally cognizable claim, the Appellate Division said that “Supreme Court erred in denying [Schenectady’s] cross motion for dismissal of the petition/complaint.

The court, however, declined to divest PERB of its exclusive jurisdiction over the improper practice charges, including whether police disciplinary matters are a prohibited subject of negotiations.

On this last point, it could be argued that negotiating alternative disciplinary procedures to those provided by law is a permissive rather than a mandatory subject for collective bargaining.

Civil Service Law §76.4, provides: 4. Nothing contained in section seventy-five or seventy-six of this   chapter shall be construed to repeal or modify any general, special or   local law or charter provision relating to the removal or suspension of   officers or employees in the competitive class of the civil service of   the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state** and an employee organization pursuant to article fourteen of this chapter. [Emphasis supplied] Where such sections are so supplemented, modified or replaced, any   employee against whom charges have been preferred prior to the effective   date of such supplementation, modification or replacement shall continue   to be subject to the provisions of such sections as in effect on the   date such charges were preferred.

Accordingly, the use of the word “may” suggests that either party negotiating a collective bargaining agreement could decline to negotiate an alternative to a statutory disciplinary procedure but may elect to do so, making any demand for an alternative to a statutory disciplinary procedure a permissive subject of collective bargaining within the meaning of the Taylor Law.

* In a disciplinary action taken against an employee pursuant to Section 75 of the Civil Service Law the court ruled that the hearing could not be closed to the public unless the accused employee agrees or requests that the proceedings be held privately [See 74 Misc.2d 315]. With respect to disciplinary procedures initiated pursuant to §3020-a of the Education Law, 8 NYCRR 82-1.9, “Demand for public hearing,” provides that [u]nless the employee notifies the hearing officer at least 24 hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. The prehearing conference shall be private.” §3020-a, however, is silent with respect to “a public hearing.” Presumably 8 NYCRR 82-1.9 was adopted pursuant to the authority vested in the Commissioner of Education by §3020-a.3.c, which provides that “The commissioner of education shall have the power to establish necessary rules and procedures for the conduct of hearings under [such] section.”

** Although it could be argued that the use of the word “State” limits the negotiation of alternative disciplinary procedures to the State and employee organizations representing State workers, in practice alternatives to statutory disciplinary procedures have been negotiated by political subdivisions of the State and employee organizations representing employees of such political subdivisions for decades.

The decision is posted on the Internet at: 


The court’s fact-review power of an administrative agency's determination is limited to whether substantial evidence supports the determination

The court’s fact-review power of an administrative agency's determination is limited to whether substantial evidence supports the determination 
Matter of Jenkins v Israel, 2011 NY Slip Op 03604, Appellate Division, Second Department

The Westchester Medical Center filed disciplinary charges against Lisa Jenkins alleging insubordination and misconduct pursuant to §75 of the Civil Service Law. The disciplinary hearing officer found Jenkins guilty of the charges and Westchester adopted the hearing officer’s findings. It then imposed the penalty of dismissal and terminated her employment as a nursing aide.

In response to Jenkin’s appeal challenging her termination, the Appellate Division said that its fact-review powers of an administrative agency determination “are limited to whether substantial evidence supports the determination"
In this instance the court found that there was substantial evidence in the record to support a finding that Jenkins committed insubordination and misconduct.

Further, said the Appellate Division, “we cannot conclude that the penalty of dismissal imposed by the hospital was ‘so disproportionate to the offense as to be shocking to one's sense of fairness’ so as to constitute an abuse of discretion as a matter of law,” citing Matter of Kelly v Safir, 96 NY2d at 32.

The decision is posted on the Internet at: 

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: http://publicpersonnellaw.blogspot.com/2011/05/qualified-immunity-from-civil-lawsuits.html

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 http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03699.htm 

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.”

Employees of a state as an employer may not sue their employer for alleged violation of the ADEA or similar acts of Congress

Employees of a state as an employer may not sue their employer for alleged violation of the ADEA or similar acts of Congress
Kimel v Board of Regents, 528 U.S. 62

Section 58 of the Civil Service Law sets out minimum and maximum age qualifications for initial appointment as a police officer by political subdivisions of New York State other than the City of New York.

Sometimes this “maximum age” for appointment as a police officer was held to be a violation of Age Discrimination in Employment Act [ADEA]. At other times, the “maximum age” for appointment to law enforcement positions was “exempted” from the provisions of the ADEA by Congress.

Now the U.S. Supreme Court has said that federal courts do not have jurisdiction to consider “age discrimination” law suits filed under the ADEA, dismissing appeals in cases involving:

1. 36 current and former Florida State University faculty members who complained that they were denied salary increases in violation of ADEA;

2. A Florida corrections officer, Wellington Dick, who contended that his age was one of the considerations that resulted in his being denied a promotion; and

3. Faculty members of an Alabama state-run college who claimed that they were denied promotions and other benefits such as sabbatical leaves and committee assignments because of their age.

The Supreme Court held that state workers cannot sue their employer in federal court for alleged violations of ADEA.

This is consistent with the high court’s rulings in other recent cases limiting Congress’ efforts to subject states to federal law under statutes adopted pursuant to the “commerce clause” such as Alden v Maine, 527 U.S. 706, a case involving suing states in federal court for alleged violations of the Fair Labor Standards Act.*

The high court said that the 11th Amendment bars a state employee from suing his or her employer in federal court without its consent.

In effect, the court held that the federal courts do not have any jurisdiction to consider suits brought against states by its workers pursuant to legislation enacted by Congress under color of the commerce clause.

Another element in these cases: allegations that actions by the states involved violated the 14th Amendment.

The majority’s response to these 14th Amendment claims in this 5 to 4 decision may have a significant impact in resolving pending and future law suits involving public personnel law and employment in the public sector brought in federal court.

In response to arguments concerning these 14th Amendment claims Justice Sandra Day O’Connor said that "States may discriminate on the basis of age without offending the 14th Amendment if the age classification in question is rationally related to a legitimate state interest."

The Supreme Court probably will continue to apply this rationale in cases involving tests of other federal civil rights laws such as the Americans with Disabilities Act.

However, in Alden, the Supreme Court pointed out that the 11th Amendment applies only to states, commenting that political subdivisions of a state could not claim such immunity.

Thus, the Alden ruling indicates that there is an “important limit” to the principle of sovereign immunity barring suits against States -- such immunity does not extend to suits brought against a municipal corporation or other governmental entity that is not an arm of the State.

In each of these three cases, a state was the defendant. As Section 58 is a “state-wide” law adopted by the State Legislature, it could be argued that the Supreme Court’s rulings concerning both the 11th Amendment and the 14th Amendment apply should the age limitations set by Section 58 be challenged.

In any event, the court’s views with respect to the impact of the 14th amendment in cases of alleged discrimination may prove significant insofar as both the state as an employer and a political subdivision of a state as an employer, is concerned.

* The Commerce Clause has been traditionally used by Congress to adopt laws in order to regulate “interstate commerce.” 

Veteran's rights upon the abolishment of positions for economy or other lawful purpose

Veteran's rights upon the abolishment of positions for economy or other lawful purpose
Fromer v Commissioner of Labor, 268 AD2d 707

An individual’s status as veteran within the meaning of Section 75 of the Civil Service Law may provide an individual with rights and benefits beyond the “disciplinary due process rights” usually claimed, as the Fromer case demonstrates.

Howard A. Fromer was serving as the general counsel to the State Energy Office when the agency was abolished on March 31, 1999. Fromer’s application for unemployment insurance was rejected by the Unemployment Insurance Appeal Board.

The Board ruled that Section 565 of the Labor Law barred Fromer from receiving benefits because he served in a major nontenured policymaking or advisory position that was statutorily excluded as employment for the purpose of qualifying for benefits.”

Fromer appealed, claiming that:

1. The exclusion in Labor Law Section 565 (2) (e) should be construed as containing an exception where the individual is terminated as the result of the abolition of his or her position;

2. Section 75(1)(b) of the Civil Service Law gave him “limited tenure” rights by reason of his status as a veteran.

The Appellate Division rejected Fromer’s first argument, commenting that “the statutory exclusion focuses “solely on the nature of claimant’s position in the governmental agency,” not on the reason for a claimant’s termination.

The court said that the Board decided that Labor Law Section 565(2)(e) does not include the abolishment-of-position exception Fromer claimed. As this conclusion is “neither irrational nor unreasonable in light of the absence of language in the statute to suggest that the Legislature intended any such exception,” the Appellate Division ruled that the Board’s statutory interpretation must be upheld since it was “rational and reasonable.”

The alternative argument presented by Fromer did better as it raised an issue not previously considered by the Board -- Section 75(b)(1) of the Civil Service Law provided him with a “a limited grant of tenure” sufficient to qualify him for benefits.

The Appellate Division said that the Board’s determination had to be reversed and remitted reconsideration, rejecting the Attorney General’s argument that the record provided a rational basis for the Board’s determination.

Why? Because, said the court, the Board had not based its determination, much less considered his claim of “limited tenure status,” in deciding Fromer’s eligibility for unemployment insurance benefits.

Commenting that it is well settled that “judicial review of an administrative determination is limited to the grounds invoked by the agency,” the court said that this issue had to be addressed by the Board as to “its determination of [Fromer’s] entitlement to the limited tenure afforded by Section 75(b)(1).”


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May 05, 2011

Qualified immunity from civil lawsuits

Qualified immunity from civil lawsuits 
Doninger v. Niehoff, USCA, Second Circuit, Docket Nos. 09–1452–cv (L), 09–1601–cv (XAP), 09–2261–cv (CON) 

Avery Doninger, a high school student, claimed that school administrators violated her First Amendment rights to free speech by (1) preventing her from running for Senior Class Secretary as a direct consequence of her off-campus internet speech, and (2) prohibiting her from wearing a homemade printed t-shirt at a subsequent school assembly.

The United States Court of Appeal, Second Circuit, said that in adjudicating Doninger’s claims it had to determine if the school administrators involved were entitled to qualified immunity.* 

Concluding that the First Amendment claimed by Doninger was not clearly established, the Second Circuit affirmed Federal District court's decision that administrators were entitled to qualified immunity.

Addressing Doninger’s First Amendment claims at issue with respect to the defense based on the “doctrine of qualified immunity” advanced by the school administrators, the court said the in deciding whether to grant a government official's motion for summary judgment on qualified immunity grounds, a court conducts a two-part inquiry.

The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [official's] conduct violated a constitutional right.”

If the plaintiff’s cause survives that test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.”

If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity.

In determining if a right is clearly established, the Second Circuit said that it looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful. Significantly, the court said that “The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in [the official’s] position should know about the constitutionality of the conduct.”

Further, said the court, “when faced with a qualified immunity defense, a court should consider the specific scope and nature of a defendant's qualified immunity claim. That is, a determination of whether the right at issue was ‘clearly established’ must be undertaken in light of the specific context of the case, not as a broad general proposition.”

Citing Harlow v. Fitzgerald, 457 U.S. 800, the Second Circuit concluded that “it would gravely distort the doctrine of qualified immunity to hold that a school official should fairly be said to ‘know’ that the law forb[ids] conduct not previously identified as unlawful.” In Harlow the U.S. Supreme Court held that “government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Another area in which a qualified privilege may be asserted involves communication. For example, an employee's conduct or behavior may be the subject of oral or written communications between administrators or administrators and employees. If the employee objects to the content of such communications, he or she may sue the employer and the individuals involved for defamation, claiming the contents of the communications concerning his or her behavior constitutes slander [if oral] or libel [if written].

The individuals being sued for defamation in such cases will often respond that the statements they made in such communications are privileged and thus they are immune from liability for their actions.

In Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250, the Appellate Division considered such a case.

Summarized below are the views of the Appellate Division, First Department, concerning an administrators' or an employees' claim that their statements are privileged or that they are protected by some form of immunity in making such statements.

The issue arose when a number of individuals serving as volunteers with the Metropolitan Museum of Art complained that their supervisor, Cecile Herlihy, directed racial or ethnic epithets towards them. Herlihy denied the charges.

After what the Appellate Division characterized as "some sort of investigation," Herlihy was directed to "apologize for her remarks."

Ultimately Herlihy was dismissed by the Museum. She sued, claiming, among other allegations, that she had been slandered when charged with directing racial or ethnic epithets towards the volunteers making the complaint.

The defendants, on the other hand, argued that their statements were protected by an absolute or qualified immunity for the following reasons:

1. State and federal human rights laws gave them absolute immunity from retaliation for filing complaints alleging unlawful discrimination.

2. A "common-law privilege absolutely protected them from defamation suits" based on their communicating these allegations to Museum officials.

3. The statements that made concerning Herlihy were protected by a qualified privilege.

A state Supreme Court justice dismissed the action filed by Herlihy against the Museum but denied the volunteers' motion to dismiss Herlihy's action against them in its entirety. The volunteers appealed the Supreme Court's decision. The Appellate Division addressed each of their arguments in turn, holding that the following guidelines apply:

1. Statutory provisions prohibiting retaliation for filing civil rights complaints do not protect "bad faith complainants making false discriminatory related charges" from defamation actions that might arise following the filing of such complaints.

2. Common-law provides absolute immunity from defamation actions "only to those individuals participating in a judicial, legislative or executive function and is based on the personal position of status of the speaker."

3. Under New York law, a "qualified privilege" or a "qualified immunity" applies only in situations involving "good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, ... made to [another] party having a corresponding interest."

With respect to claims of absolute immunity under common-law, the Appellate Division noted a ruling by the Court of Appeals concluded that a private citizen speaking at a public hearing "was not conferred with absolute privilege because, unlike members of the ... Board, the [individual] had no office at the hearing [see 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130].

The Appellate Division ruled that the defendants in this action did not enjoy absolute immunity under common-law because "they did not make their statements in an official capacity while discharging a governmental duty, nor were the statements made during, or for, a judicial, quasi-judicial or administrative hearings."

In considering the defendant's claim to a qualified privilege, the Appellate Division said that "the underlying rationale behind a qualified privilege is that so long as the privilege is not abused, the flow of information between parties sharing a common interest should not be impeded." A qualified privilege will be lost, however, if the statements claimed to be defamatory were "published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity...." 

The decision indicates that "common interest warranting a qualified privilege" has been found to exist between employees of an organization [Loughry v Lincoln First Bank, 67 NY2d 369], members of a faculty tenure committee [Stukuls v State of New York, 42 NY2d 272], and employees of a board of education [Green v Kinsella, 36 AD2d 677].

How did the Appellate Division resolve this case? First it upheld the lower court's ruling dismissing Herlihy's action against the Museum for "emotional distress." It then held that "it would be inconsistent to deny an action for emotional distress caused by [being charged] with the use of ethnic slurs while allowing one for being falsely labeled as a user of such slurs." Accordingly, the Appellate Division concluded that Herlihy's action for slander should be dismissed as well.

The Court said that although the racial or ethnic epithets attributed to Herlihy were "deplorable and ... evidence of a certain narrow-mindedness and mean-spiritedness ... [it] ... does not rise to the level of outrage required to recover under a cause of action that is limited to only the most egregious acts." In other words, the allegations of the defendants were not so egregious as to be sufficient to allow Herlihy to recover for being falsely labeled a user of such slurs.

* In contrast to the Doctrine of Qualified Immunity,” the Doctrine of Absolute Immunity insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

The Doninger decision is posted on the Internet at: 

The Herlihy decision is posted on the Internet at: 


Discipline penalties

Discipline penalties
Nicastro v Safir, App. Div., First Dept, 266 AD2d 167
Queally v Safir, App. Div., First Dept, 266 AD2d 167
Dillon v Safir, App. Div., First Dept., 265 AD2d 196

Penalties imposed following disciplinary action taken pursuant to Section 75 of the Civil Service Law are frequently challenged by appealing either to the civil service commission having jurisdiction or to the courts pursuant to an Article 78 proceeding [Article 78, Civil Practice Law and Rules].

Although the penalty of dismissal is the one most frequently appealed, lesser penalties are also subject to challenge as the Nicastro, Queally and Dillon cases demonstrate.

In Nicastro case, New York City police officer Ann Nicastro challenged her being found guilty of having been discourteous to individuals in the course of effecting an arrest.

The penalty imposed: the loss of 15 days of vacation time. The Appellate Division sustained both the disciplinary determination and the penalty imposed.

In Queally, decided with Nicastro, the court affirmed the imposition of the penalty of the loss of 10 days of vacation time after New York City police officer Robert Queally was found guilty of using excessive force to effect an arrest.

The Appellate Division referred to Pell v Board of Education, 34 NY2d 222, in support of these rulings.

A similar penalty, 10 days suspension without pay, was imposed on a New York City police officer found guilty of directing ethnically offensive epithets to a garage attendant while off-duty [Police Department v Murray, OATH #111/00, 11/26/99].

The third case, Dillon v Safir, also involved allegations of the use of excessive force.*

Here New York City police officer Bradley Dillon contested his being guilty of using excessive force in effecting an arrest and the penalty imposed: “dismissal probation for one year” and the forfeiture of 30 days of annual leave credit.

The Appellate Division dismissed his petition, holding that the disciplinary determination was supported by the records and that the penalty imposed by the Commissioner was reasonable under the circumstances.

* Dillon was subsequently terminated during his disciplinary probationary period [see 270 AD2d 116 – Here the Appellate Division upheld Dillon’s termination without a hearing and without a statement of reasons while he was serving a one-year disciplinary probation imposed pursuant to Administrative Code of the City of New York § 14-115 (d). This penalty was the one affirmed by 265 AD2d 196, above.

Eligibility for benefits pursuant to the Volunteer Firefighters' Benefit Law

Eligibility for benefits pursuant to the Volunteer Firefighters' Benefit Law
Matter of Weinstein v Somers Fire Dist., 37 AD3d 917

Robert Weinstein, a self-employed real estate agent, sustained a back injury in July 2001 while lifting an oxygen tank into an ambulance in furtherance of his duties as a volunteer firefighter. A Workers' Compensation Law Judge ruled that Weinstein’s injury constituted a permanent partial disability and that he had suffered a 50% loss of earning capacity. Accordingly, Weinstein was eligible for benefits provided by Section 10 of the Volunteer Firefighters' Benefit Law.*

The Fire District and its workers' compensation carrier appealed the Workers’ Compensation Board’s determination.

According to the ruling, Weinstein suffered "chronic low back pain . . . [which] reduced his ability to work." The record indicated that Weinstein’s employer had indicated that Weinstein’s “average work hours had been lowered from 60 hours per week to 25 hours per week” because of the work-related injury that resulted in Weinstein’s “chronic low back pain.”

This, said the Appellate Division, constituted substantial evidence in support of the Board's decision that claimant's injury resulted in a 50% reduction in earning capacity.

* The Volunteer Firefighters’ Benefit Law provides, in relevant part: “A volunteer firefighter who is injured in the line of duty is entitled to workers' compensation benefits if he or she demonstrates a loss of earning capacity, namely, an inability to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute."

May 04, 2011

School district’s lawsuit against former members of a school board for alleged fiscal mismanagement held subject to a six-year statute of limitations and thus was timely filed

School district’s lawsuit against former members of a school board for alleged fiscal mismanagement held subject to a six-year statute of limitations and thus was timely filed 
Roslyn Union Free School Dist. v Barkan, 2011 NY Slip Op 03646, Court of Appeals

The issue in this appeal was whether a three or six-year statute of limitations applies to causes of action for negligence and breach of fiduciary duty by a school district against a former member of its school board. The Court of Appeals held the six-year limitations period in CPLR 213(7) is applicable and, therefore, this action was timely commenced by the School District against a former member of the school board.*

The School District’s action against a number of members of the school board stemmed from what the Court of Appeals characterized as a long-running conspiracy to loot the school district's coffers by a number of school district administrators. An extensive forensic audit by the State Comptroller determined that, from 1998 through 2004, approximately $11 million had been misappropriated: Assistant Superintendent for Business Pamela Gluckin had stolen over $4.6 million; Superintendent Frank Tassone had taken more than $2.4 million; and Account Clerk Deborah Rigano had received about $300,000. Various sums had been funneled to more than two dozen people.

The court noted that one of the defendants in this action, Carol Margaritis, was a member of the Board for approximately one year, beginning in 2000 and left the Board before Gluckin's criminal activities came to light. Further, said the court, there are no allegations that Margaritis knew about the ongoing illegal scheme, benefited from the theft of the school district's funds or received any portion of the stolen monies. Her only link to the situation was that she was a member of the Board during a time period that funds were being stolen by school district employees.

In any event, Margaritis moved to dismiss the complaint against her, arguing that the causes of action were time-barred because the school district's claims were subject to the three-year statute of limitations in CPLR 214 (4) and the complaint was filed more than three years after she ceased being a school board member. This argument was rejected by the high court and it ruled that the six-year statute of limitations controlled and thus the lawsuit against her was timely.

The Court of Appeals commented that this was “an unusual case because it is rare for school districts to engage in litigation against the individuals who voluntarily seek election to serve on school boards. Such public service is commendable and a vital component of our state's legal and moral duty to educate its children. The filing of a lawsuit by a school district against the members of its school board is certainly a disincentive for attracting qualified candidates to perform this important civic function.”

The court attributed this action by the district as responding to a particularly egregious set of facts involving severe financial mismanagement — over $11 million was stolen from taxpayers in a criminal conspiracy operated by two high-ranking school district employees and certain members of the Board were allegedly complicit because they may have breached the duties that were entrusted to them to protect the school district's assets.

Although the complaint here was not barred by the statute of limitations, the court agree with the Appellate Division that the school district's allegations did not state a cause of action against Margaritis for an accounting. “This equitable remedy is designed to require a person in possession of financial records to produce them, demonstrate how money was expended and return pilfered funds in his or her possession.”

As the State Comptroller was able to trace countless financial transactions in order to determine how the vast bulk of the stolen monies was used and the identity of the individuals who received the funds, the court ruled that there appeared to be no need for an accounting by Margaritis, but reinstated the causes of action for breach of fiduciary duty, common-law negligence and declaratory judgment as against her as having been timely filed.

* The question before the Court of Appeals was not whether any board member bears a degree of responsibility for the financial losses suffered by Roslyn Union Free School District but whether the case against the former members of the school board was timely filed.

The decision is posted on the Internet at: 



Involuntary leave under Civil Service Law Section 72

Involuntary leave under Civil Service Law Section 72
NYC Parks and Recreation v Matthews, OATH, 219/00

The New York City Department of Parks and Recreation wanted to place Rufus Matthews on leave pursuant to Section 72 of the Civil Service Law. Matthews objected.

The department claimed that Matthews, a park maintenance worker, was medically unfit to perform the duties and responsibilities of his position due to a heart condition.

Matthews, on the other hand, contended that he was fully able to perform the duties of his position notwithstanding his “heart condition.”

Pointing out that Section 72 places the “burden of proving mental or physical unfitness” upon the entity alleging it, OATH Administrative Law Judge [ALJ] Rosemarie Maldonado held that Parks and Recreation had failed to prove by a preponderance of the evidence that Matthews was “currently unfit” to competently perform his job duties as a city park maintenance worker.

Maldonado said that Matthews’s personal physician presented “compelling evidence” that [Matthews’] “cardiac rehabilitation was complete, and that physical exertion did not pose an unreasonable risk to his patient.”

In response to the department’s concern that Matthews “is endangering himself” by insisting that he be reinstated to full duty, the ALJ said while “commendably humanitarian,” the legal issue remains the impact of Matthew’s condition on his current ability to work.

Maldonado said that unless there is a clear showing of present impairment, the employer cannot place an individual on Section 72 leave “simply because there is some risk” that Matthews’ performance of his work might place him in some physical jeopardy.

According to the decision, where it is apparent at the time of the hearing that the employee’s condition is in check or otherwise under control, OATH has declined to find unfitness merely because of the existence of the potential for relapse or deterioration.


Reassigning work formerly performed by an individual laid off after his or her position is abolished

Reassigning work formerly performed by an individual laid off after his or her position is abolished
Matter of Kelly Krause and the Spencer-Van Etten CSD, Commissioner of Education, Decision No. 15,516

The lesson in this decision is that although it is not unlawful to reassign or redistribute the work performed by the former incumbent of a position that has been abolished to other staff members, the individual or individuals to whom the work is assigned must be qualified to perform the duties assigned to them.

The Spencer-Van Etten Central School District employed Kelly Krause as a full-time home economics teacher beginning with the 2000-2001 school year. During the 2004-2005 school year, Krause taught three Home and Career Skills courses to seventh grade students and two related courses to high school students.

At its July 12, 2005 meeting, the District’s Board adopted a resolution abolishing a number of teaching positions, including its full-time Home and Career Skills teaching position. Krause was laid off and her name was placed on a preferred eligible list for the Home and Career Skills title.

The District, however, continued to offer Home and Career Skills courses during the 2005-2006 school year. These courses, however, were assigned to five of the District’s incumbent teachers, none of whom was certified to teach Home and Career Skills.

Krause appealed to the Commissioner of Education, contending that the District’s actions with respect to the Home and Career Skills curriculum did not meet regulatory requirements.*

The Commissioner ruled that the District had improperly assigned teachers who lacked the required certification to teach its Home and Career Skills courses. He also found the Krause was on the “preferred eligible list” and remained available to teach the course during the time at issue here.

Noting that Education Law §3009 prohibits boards of education from employing unqualified teachers, the Commissioner said that the District’s practice of assigning teachers without the requisite Family and Consumer Sciences/Home Economics certification to teach the entire core curriculum in effect circumvents both the certification requirements and the incidental teaching regulations.

Although he said that the District improperly assigned uncertified teachers to its Home and Career Skills courses, the Commissioner concluded that the District had not created a specific position mandating the use of the preferred list to fill the vacancy. In the words of the Commissioner”

The record here shows that no vacancy occurred and no new position was created; instead, [the District’s] former teaching duties were redistributed albeit to teachers who lacked the proper certification. If, as a result of this decision, the District creates a new position in Home and Career Skills, [Krause] may indeed be entitled to such position by virtue of her place on the preferred eligible list of candidates.

The Commissioner ordered the District to “cease assigning teachers who lack the appropriate Family and Consumer Sciences or Home Economics certification to its seventh grade Home and Career Skills classes, review its curriculum, and comply with Education Law §3013 in the filling of any future vacancies.”

* The Home and Career Skills core curriculum prepared by the State Education Department (“SED”) identifies four process skills and ten content areas to be included in the course. The curriculum also notes that a certified Family and Consumer Sciences teacher must teach the course.

May 03, 2011

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected
Kevin M Gorey, Jr. v New York State Comptroller, 2011 NY Slip Op 03329, Appellate Division, Third Department

Kevin M. Gorey Sr. applied for service retirement effective September 1, 2004 and elected benefit payments under the "Single Life Allowance" option. This option provided that Gorey Sr. would receive the maximum lifetime retirement allowance payable to him and the payments would stop upon his death. Further, this option did not permit Gorey to designate a beneficiary.

New York State and Local Employees’ Retirement System [ERS] sent Gorey Sr. a letter confirming his option selection and detailing his annual benefit payments. In addition, ERS told Gorey Sr. that he could his selection of his retirement option prior to September 30, 2004. Gorey Sr. did not submit any change and died on November 19, 2004.

Gorey Sr.’s children [Gorey, Jr.] asked ERS to void decedent's selection of the "Single Life Allowance" option, contending that Gorey, Sr. was incompetent at the time he made the selection. Ultimately ERS rejected Gorey Jr.’s application, holding that Gorey Jr. had not established that Gorey Sr. was incompetent* when he made his retirement option selection and Gorey Jr. sued in an effort to overturn the Retirement System’s decision.

The Appellate Division affirmed the Retirement System’s determination.

Noting that Gorey Jr. contend that the Retirement System “did not take adequate steps to ensure that [Gorey Sr.] made a proper retirement option choice, the court said that the Retirement System is "not required to insure that proposed retirees receive the best possible entitlement," citing Matter of Cummings v New York State & Local Employees' Retirement Sys., 187 AD2d 862, appeal dismissed 81 NY2d 834.

Further, said the court, the State Comptroller "has the exclusive authority to determine all applications for any form of retirement or benefits" and his decision will not be disturbed if it is supported by substantial evidence.

* The applicant for a retirement allowance is presumed to have been competent at the time he or she made his or her retirement option selection and the burden is on those challenging that election to prove the contrary.

The decision is posted on the Internet at: 


Infringing on constitutionally protected speech

Infringing on constitutionally protected speech
Timothy M. Wrobel v County of Erie, CA2, 2007 WL. 186264

In reviewing Wrobel’s claim that Erie County had violated his right to free speech and association, the U.S. Court of Appeals for the Second Circuit said:

1. Government employees who are not policymakers have the right not to affiliate with or support a particular party or faction as a condition of employment.

2. Conditioning public employment on the provision of support for the favored political party “unquestionably inhibits protected belief and association”.*

The court concluded, “When reasonable inferences are drawn in Wrobel’s favor, the amended complaint sufficiently alleges that Wrobel was retaliated against for his lack of political affiliation with, or his refusal to pledge his allegiance to, the new Erie County administration.”

The Circuit Court also noted that in Zelnik v. Fashion Institute of Technology, 464 F.3d 217 (2d Cir. 2006), it explained that “actionable retaliation” in the context of the First Amendment was employer actions that “well might have dissuaded a reasonable worker [from asserting First Amendment-protected rights]”.**

As to Wrobel’s claim that the County had violated his First Amendment free speech rights, the Circuit Court said that "While we agree with the District Court that Wrobel’s pre-transfer speech was not on a matter of public concern, and was therefore not constitutionally protected we do not agree with its conclusion that Wrobel had not sufficiently alleged actionable retaliation following his expression of protected speech.”

Wrobel alleged that “defendant Douglas Naylon implicated him as the perpetrator of a theft of government property shortly after Wrobel discussed the corruption and politicization of his place of employment with an FBI agent.” Wrobel also alleged that other county officials had bribed others to testify against him at an arbitration hearing shortly after he engaged in protected speech.

In Conrick v Myers, 461 US 1l38, the United States Supreme Court established a two-prong test with respect to claims of dismissal in retaliation for "whistle blowing." To win, the individual must prove that (1) his or her speech is protected, i.e., the speech was a matter of public concern, and (2) that the protected speech was a substantial factor in motivating the termination

These adverse actions, said the court, “are sufficient to support a First Amendment retaliation claim,” because Wrobel’s petition “sets forth the necessary nexus between [Wrobel’s] statements concerning a matter of public concern and the defendant[s’] subsequent alleged retaliatory acts.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution.***

The decision is posted on the Internet at:  


* See also §107 of the Civil Service Law setting out certain prohibitions against certain political activities and improper influence.

** The court commented that monitoring of Wrobel’s phone calls, transfer of Wrobel to a faraway location, initiation of a criminal investigation against Wrobel, and other adverse actions alleged in the amended complaint—if proven true—would be sufficient to dissuade a reasonable worker from asserting his First Amendment rights. Wrobel, said the court, adequately alleges that the adverse actions were taken in retaliation for his protected associational activity.

*** See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, where the court held that a public employee’s speech was not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”
In re Police Officer Ruben Olavarria, etc., v Raymond W. Kelly, as Police Commissioner of the City of New York, et al., 37 AD3d 191

The so-called Pell Doctrine frequently is cited as the standard against which a disciplinary penalty imposed on a public employee by the appointing authority is to be measured.*

In Olavarria, the Appellate Division affirmed the imposition of the penalty of dismissal on a New York City police officer found guilty of a number of alleged acts of misconduct, including assault, insubordination, being discourteous to superior officers, violating an order of protection, and being asleep on duty.

Ruling that it found no basis to question the credibility of the findings underlying holding that Olavarria was guilty of these charges, the Appellate Division said the “Under the circumstances, the penalty of dismissal does not shock the judicial conscience,” citing another leading decision addressing the imposition of the “ultimate” administrative disciplinary penalty, -- dismissal. Harp v New York City Police Dept., 96 NY2d 892.

For the full text of this decision, go to:

* Pell v Board of Education, 34 NY2d 222, a disciplinary penalty imposed by an appointing authority will not be overturned unless the court finds that it is shocking to one's sense of fairness.


May 02, 2011

A coda to "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations"

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

Important practice reminder

An important reminder that applies in most administrative jurisdictions: "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations", on the New York Public Personnel Law blog. Neither do settlement negotiations or even (sometimes) administrative appeals. And, as in the case discussed in [another post*], the statutes of limitations for judicial review of administrative decision are often very short (four months for a personnel decision in this case). In my practice days, one of the first research tasks I set myself when taking on an administrative matter was "how many days do I have to take this to the Court of Appeals if it goes south?" Or north, as the case may be. Just in case.

“And typically the S/L is measured from the promulgation of a "final" order. When is "final" in this context in this jurisdiction? Do you know?” 

* Dean Patty Salkin (Albany Law School) describes such a situation in "Fed. Dist. Court Prevents Performing Arts Center From Relocating to Dilapidated Historic Warehouse" on her Law of the Land blog: 

Edward M. McClure

Malpractice in disciplinary actions

Malpractice in disciplinary actions
Tinelli v Redl, CA2, 199 F.3d 603, Affd. 121 S.Ct. 47

After being found guilty of disciplinary charges, an individual decides to sue his or her attorney, contending that the lawyer’s action, or failure to act, in the disciplinary hearing or an appeal constituted malpractice.

In the Tinelli case, the U.S. Circuit Court of Appeals, Second Circuit considered such a malpractice claim. The decision sets out a test for determining if there is a basis for such an action against the attorney.

Joseph Tinelli was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He retained an attorney, Frank Redl, to represent him in the matter. Following a two-day hearing, the hearing officer found Tinelli guilty of three charges of “misconduct and incompetence.”

The appointing authority adopted the findings of the hearing officer and imposed the penalty recommended by the hearing officer: termination.

Tinelli appealed. According to the decision, Redl failed to take any “further action ... after the initial filing of the petition for Tinelli’s appeal” in New York State Supreme Court. As a result, six months later Tinelli’s “appeal expired.”

Tinelli sued Redl, contending that the attorney’s (1) failure to perfect the Article 78 appeal and (2) his failure to ask the court for an extension of time to perfect the appeal, constituted malpractice.

He also charged that Redl’s performance at the administrative disciplinary hearing constituted malpractice.

The U.S. Circuit Court of Appeals decided that whether or not Redl’s handling the appeal constituted malpractice depended on whether or not Tinelli’s appeal would have been successful. In other words, if Tinelli would not have won the appeal regardless of the action or inaction of his attorney, there was no basis for holding the attorney liable for malpractice.

After reviewing the record, the circuit court said that “Tinelli’s appeal would not have succeeded because the hearing officer’s findings of misconduct and incompetence were supported by substantial evidence and because there was no abuse of discretion in recommending Tinelli’s termination under the circumstances.”

The court dismissed Tinelli’s claim, holding that his attorney could not be held liable for malpractice because he failed to perfect the appeal since Tinelli would not have been able to overturn either the administrative disciplinary determination or the penalty imposed.

As to Tinelli’s claim that “Redl’s poor performance at the administrative hearings constituted malpractice,” Redl’s motion for summary judgment dismissing this allegation was also granted.


Mandatory subjects of negotiations

Mandatory subjects of negotiations
Carmel PBA v PERB, 267 AD2d 858

The Carmel PBA case involves a “legal interpretation” made by the New York State Public Employment Relations Board [PERB].

The Appellate Division ruled that the administrative agency’s determination would be upheld if it is not affected by an error of law, is neither arbitrary nor capricious, and does not constitute abuse of discretion.

The case arose when PERB ruled that Town of Carmel’s changing an “early vacation procedure” was a nonmandatory subject of collective bargaining. The PBA challenged PERB’s decision, claiming that in addition to being arbitrary and capricious and against the substantial weight of the evidence, the ruling constituted “an error of law.”

Carmel had in place a scheme for selecting vacation to be taken during the year -- “vacation picks.” PBA members could select their vacation before the beginning of the year in which vacation time is to be taken (“early vacation picks”) or during the year prior to the taking of the requested vacation time (“later vacation picks”). In addition, a “minimum staffing level rule” required that at least four police officers be assigned to patrol shift.

The Town changed the “staffing” requirements to be observed in selecting vacations in October 1995. The new procedure:

1. Barred the “overlap of vacations” by police officers and sergeants on the same tour; and

2. If the department had only one lieutenant, the chief of police, lieutenant and/or sergeant could not “overlap [their respective] vacations.”

PBA filed an improper practice charge with PERB contending that the Town violated Section 209-a(1)(d) of the Civil Service Law when it unilaterally imposed the new policy.

Initially, PERB deferred its consideration of the charge because a grievance arbitration concerning the matter was pending.

The arbitrator ruled that the parties’ 1994 agreement’s provision concerning vacation selection did not apply after 1995. After the arbitrator’s issued the award, PERB accepted jurisdiction and addressed the merits of the PBA’s petition.

PERB decided that “the vacation selection procedure was necessarily and “inextricably entwined with the Town’s staffing determination.” This, it held, meant that it was not a mandatory subject of negotiation. The PBA appealed.

The Appellate Division commenced its review by pointing out that while “the refusal of public employers to negotiate in good faith with recognized employee organizations concerning the terms and conditions of employment constitutes an improper employment practice within the meaning of Section 209-a,” not all terms and conditions of employment are subject to mandatory negotiation.

What is a mandatory subject of collective bargaining?

The court said that PERB has the authority to make this determination and so long as its “interpretation is legally permissible and * * * there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation.”

Accordingly, said the court, PERB’s determination that the Town’s policy prohibiting certain overlaps of vacation was not a mandatory subject of collective bargaining under the Taylor Law must be confirmed.

In explaining its ruling the Appellate Division cited International Assn. of Firefighters of City of Newburgh, Local 589 v Helsby, 59 AD2d 342, 345, leave to appeal denied, 43 NY2d 649.

In that decision the court held that the number of employees the municipality will hire “is clearly a basic policy decision to be made solely by the municipal governing body as to the allocation of its resources and the extent and quality of fire protection to be provided by the [municipality] for its citizenry.”

How does this impact on the PBA’s claim that the Town should be required to negotiate the policy change? The Appellate Division’s answer:

Since the Town’s determination to increase its minimum staffing level is clearly a basic policy question for it to make, to hold that here is a duty to bargain the early approval of overlapping vacations is incompatible with the Town’s managerial prerogative to set and change minimum staffing levels at the employer’s discretion.

Finding that PERB’s decision was not arbitrary or capricious or based on an error of law, the Appellate Division dismissed the PBA’s appeal.



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