Using the agency's equipment for non-official purposes

Using the agency's equipment for non-official purposes

Ekpecham v Ross, Decisions of the Commissioner of Education No. 14,651

Priscilla A. Ekpecham asked the Commissioner of Education to remove Superintendent of the City School District of Mt. Vernon Ronald O. Ross from his position because that Ross allowed the school district's postage machine to be used for a mass mailing of a letter being mailed by a not-for-profit organization called “Saving Our Children Through Prayer Power.” The envelopes and stationary used in the mailing displayed the organization's name, and listed its address as “c/o Grace Baptist Church” in Mount Vernon.

According to Ekpecham, the letter was an invitation to a public meeting allegedly to exhort public support for Ross and the Mount Vernon school system, and to support the use of school uniforms in the public schools.

Ross, in rebuttal, said that the Church reimbursed the district in the amount of $1,092.46 for the cost of postage for the mailing. Accordingly, Ross argued, because no district funds were used for the mailing, there was no need to obtain authorization from the board of education, and any claims regarding that mailing are now moot.

Although the Commissioner dismissed Ekpecham's appeal as untimely, he said that:

I am compelled to comment on the use of school district postage equipment for private purposes, irrespective of whether the cost of the actual postage is reimbursed. The school district should be mindful that the United States Constitution prohibits government action that tends to support or sponsor a particular faith or religious group. Similarly, a school may not offer a particular religious group or faith privileges or access to school property that is not generally available to the public.

The problem, said the Commissioner, was that “the use of the district's equipment, and the identification of the district's postal meter number on envelopes displaying the name and address of an organization linked to a particular religious denomination and church, creates the appearance of sponsorship by the school district of this particular religious organization, and its activities and messages.”

Without ruling on the propriety of such use, the Commissioner said that “granting unique rights to one organization creates at the very least an appearance of impropriety.” In addition, “the use of district resources, equipment, etc., also raises the specter of an illegal use of public funds for private purposes.”

Standing to appeal an arbitration award

Standing to appeal an arbitration award

Moreira-Brown v New York City Bd. of Education, 288 AD2d 21

Herbert Moreira-Brown had filed a grievance, which was pursued through arbitration. Acting pro se [on his own behalf], he then attempted to (1) confirm an arbitration award pursuant to Section 7510 of the Civil Practice Law and Rules [CPLR] and (2) vacate a second arbitration award pursuant to Section 7511 of the CPLR. The Supreme Court dismissed both of his petitions and Moreira-Brown appealed.

The Appellate Division affirmed the lower court's determination, holding that Moreira-Brown did not have standing to seek either the confirmation of the first arbitration award or the vacating of the second award.

The court pointed out that the collective bargaining agreement between Board of Education and the Union provided that an employee's grievance could be submitted to arbitration by the union. As Moreira-Brown was represented by the union at the arbitration and he failed to show that the union breached its duty of fair representation, the court found that he did not have any standing to file these Article 75 petitions. The Appellate Division commented that “[t]he record establishes that the union vigorously represented [Moreira-Brown] and there is no evidence of bad faith on the part of the union” that would justify allowing him to maintain his action against the Board of Education and his union.

Suspension of employee without pay recommended as the disciplinary penalty for insubordination.

Suspension of employee without pay recommended as the disciplinary penalty for insubordination.

New York City Dept. of Correction v Fernandez, OATH Index #1219/11

After being given an assignment by an assistant deputy warden, a correction captain went to the deputy warden’s office to angrily confront him about the assignment. The two men fought and both were injured. 

OATH Administrative Law Judge John Spooner found the captain was insubordinate in not performing the assignment as ordered and in arguing with his supervisor about the order. 

Judge Spooner also found that the captain also made false written and interview statements about the incident.

The ALJ recommended that the captain be suspended without pay for 40 days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1219.pdf

Constructive notice of potential acts of misconduct provided by an Internet posting

Constructive notice of potential acts of misconduct provided by an Internet posting

Salamino v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 05408, Appellate Division, First Department

In this action, the Appellate Division concluded that a teacher served with disciplinary charges alleging that she had engaged in sexual misconduct with a "student" had constructive notice* that such behavior constituted misconduct in violation of the relevant collective bargaining agreement.

As the collective bargaining agreement [CBA] did not define the term “student” for the purposes contract disciplinary procedure, the arbitrator relied Regulation A-101, to determine if the individual with whom the teacher had allegedly engaged in sexual misconduct was a “student” and so found.

The Appellate Division, noting that Regulation A-101 did not purport to state a definition of the term “student," decided this did not mean that the arbitrator acted arbitrarily and capriciously in using Regulation A-101 to determine if the individual involved with the teacher in alleged sexual misconduct was a student

Turning to the teacher’s argument that she was disciplined without just cause within the meaning of Education Law §3020[1] because the CBA did not indicate that Regulation A-101 could be used to determine the meaning of the term "student" for the purposes of the CBA, the Appellate Division pointed out that the Chancellor's Regulations were “posted on the Board of Education website, and thus the teacher was on reasonable notice, under the objective circumstances, of a potential sexual misconduct charge.”

The court then held that the penalty of terminating the teacher from her position “could not be construed as disproportionate to the challenged conduct, inasmuch as CBA Article 21(G)(6) explicitly called for "mandatory" termination in cases of sexual misconduct.”

* Constructive notice is a “legal fiction” that deems that a person has notice even though actual notice was not personally delivered to the individual.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05408.htm

The difference between excusable neglect and stupidity

 

The difference between excusable neglect and stupidity

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

On Above the Law, Christopher Danzig illustrates the difference between excusable neglect and a "bonehead mistake" in "How to Lose a Case With Simple Computer Cluelessness".

For attorneys, missing deadlines is a big no-no. BIG no-no. A Goodyear blimp-sized no-no. People have literally died because of blown deadlines. Cases worth millions of dollars get tossed out because of missed deadlines, even if someone has a decent excuse.

That being so, I do not envy the lawyer who had to tell his client that the 4th Circuit shut down their lawsuit because he didn’t know how to use his Microsoft calendar. ...

The U.S. District Court for the Eastern District of Virginia ruled on a breach of contract and fiduciary duty dispute between Symbionics Inc. and its former president, Christopher J. Ortlieb, in December 4, 2009.

Symbionics planned to file an appeal on the last day of the standard 30-day window. But, uh oh, the company missed the deadline by a day, due to what the 4th Circuit later — and generously — called a computer “quirk” and “glitch”:

The alleged glitch occurred when, after counting twenty-seven days through December 31, 2009, counsel changed the month on the calendar display to January in order to continue the computation. Counsel failed to notice that the calendar did not automatically advance to January 2010 but instead reverted to January 2009.

Consequently, counsel mistakenly referenced the January 2009 calendar when he completed the calculation of the thirty-day window to appeal, which resulted in counsel’s erroneous determination that the deadline was January 5.

... The company apologized to the court, District Judge Anthony Trenga ruled the mistake was “excusable neglect,” and he gave Symbionics an extension. ...

In late May, the 4th Circuit benchslapped Symbionics in an unpublished, per curiam opinion [PDF] that basically states the obvious: Learn how to use a freakin’ computer.

We find nothing extraordinary or unusual about counsel’s calendaring error that should relieve Symbionics of its duty to comply with the time limit of Rule 4(a)(1). Counsel’s total dependence on a computer application—the operation of which counsel did not completely comprehend—to determine the filing deadline for a notice of appeal is neither “extraneous” to nor “independent” of counsel’s negligence…

[T]his neglect is precisely the sort of “run-of-the-mill inattentiveness by counsel” that we have consistently declined to excuse in the past.

If you want a technical look at the Circuit’s analysis of what exactly “excusable neglect” means, check out this Law Technology News story.

More broadly though, it’s 2011. Not knowing how to use Outlook isn’t and shouldn’t be an excuse for anything. It’s a disability.

And somehow, there are attorneys (often senior-level ones) who still don’t think they need to learn this basic stuff. We’re not even talking about more complex e-discovery processes. It’s just scheduling your day! (If counting the days yourself is too hard, there are websites that do it for you.) A speaker at a conference I recently attended said the best thing attorneys with this mindset can do… is retire.

This kind of ignorance loses cases, makes routine office work less efficient and could even lead to malpractice claims. ...

Agencies are often even more strict on deadlines, either because of specific statutory direction or just wanting to close matters out quickly. Don't miss deadlines, and don't wait until the last day to file.

Request for reconsideration of an administrative determination does not toll the running of the statute of limitation

Request for reconsideration of an administrative determination does not toll the running of the statute of limitation

Matter of Bahr v MTA N.Y. City Transit Authority, Supreme Court, Kings County, 14 Misc.3d 1215(A)

The decision by Supreme Court Justice Francois A. Rivera in the Bahr case again points out that:

1. A proceeding pursuant to the statute of limitations set out in Article 78 of the Civil Practice Law and Rules (CPLR §217[1]) must be commenced within four months of the date that the decision complained of became final and binding; and

2. An administrative determination is considered final and binding for purposes of CPLR §217[1] when it has an impact on the aggrieved party and when the aggrieved party knows of the determination; and

3. An aggrieved party's requests for reconsideration of the administrative decision neither extends the statute of limitations nor tolls the statute of limitations from running.

Richard Bahr, Tier 4 member of the New York City Employees’ Retirement System [CERS] resigned from his position with the Metropolitan Transit Authority (MTA) in August 2000. CERS advised Bahr that he could vest his membership in the Retirement System if he had five years of credited member service and was within five years of normal retirement age when he left employment. Bahr qualified for vesting by purchasing enough service credit to meet the five years of member service requirement to be eligible to vest his retirement benefits..

New York City Transit Authority [NYCTA] provided employees such as Bahr with health insurance coverage through the New York State Health Insurance Program (NYSHIP). NYCTA also provided Tier 4 retirees with health insurance coverage upon retirement if the individual had at least ten years of service in NYCERS and was 62 years old or had five years of service in NYCERS and was 70 years old.

In August 2000, Bahr was not eligible to retire and resigned instead. He “vested” his eligibility for a retirement allowance upon attaining the minimum age for retirement.

When Bahr retired a few years later, the Employee Benefits Division of the New York State Department of Civil Service, which administers NYSHIP, wrote Bahr to advise him that he was eligible to continue his health insurance coverage with NYSHIP during his retirement. NYSHIP also told Bahr that he had been enrolled in the Empire Plan with dependent coverage. The cost Bahr’s health insurance coverage was paid by the participating employer, NYCTA.

As it turned out, the information NYSHIP sent to Bahr was incorrect.

NYCTA wrote to Bahr and told him that his post employment health benefits were granted in error. NYCTA explained that although Bahr qualified for a retirement allowance, having had five years of credited member service in CERS, he was ineligible for “retiree health insurance coverage” because his did not have at least ten years of credited service in the System. NYCTA then terminated Bahr’s health coverage with NYSHIP..

Supreme Court dismissed Bahr’s Article 78 petition as untimely.

According to the decision, in a letter dated July 23, 2004, NYCTA informed Bahr that his health coverage would end on August 1, 2004. The court pointed out that Bahr’s unsuccessful attempts to have NYCTA reconsider its decision did not extend or toll the four-month statute of limitations to commence an Article 78 proceeding.

The court said that although Bahr knew of NYCTA’s final determination on July 29, 2004, his petition challenging that decision served and filed more than four months after he knew of the final administrative determination. Accordingly, it was untimely.

Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA

Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA

Hutton v Elf Atochem North America, Inc., 273 F.3d. 884

According to the Hutton decision by the U.S. Circuit Court of Appeals for the Ninth Circuit, an individual with a disability who is shown to pose a danger to co-workers and others is not a “qualified individual” within the meaning of the Americans With Disabilities Act.

Norman Hutton, a diabetic, complained that Elf Atochem discriminated against him because of his disability in violation of the ADA and Oregon's disability discrimination law, [Oregon Revised Statutes, Sections 659.405 and 659.436 (1999).

Elf manufactures chlorine and related chemical products and had hired Hutton in 1986 with the knowledge that he had been diagnosed as a Type I diabetic. During his employment at Elf Hutton had a number of diabetic episodes. On one occasion he went into insulin shock while he was pumping chlorine from the storage tanks and had difficulty communicating with his co-workers.

Elf attempted to resolve the situation by having Hutton agree to meet specified conditions in order to continue his employment. These included his remaining under the care of a physician, providing evidence of a medical examination and laboratory blood assessment to Elf on a periodic basis; maintain a daily log related to his diet, his insulin intake, and certain other activities; monitor his blood sugar levels and to regulate his insulin intake in accordance the recommendations of a physician.

Hutton did not fully cooperate and ultimately he was suspended subject to his complying with the elements set out in the agreement. He sued, only to have a federal district court find that he was not a “qualified person with a disability” under the ADA. The court said that Hutton had failed to produced evidence demonstrating that he was able, with or without an accommodation, to perform the essential functions of his position -- chlorine finishing operator position.

In making its determination the court found that Hutton's diabetes created a risk of significant harm to himself and others, thereby disqualifying him from the position.

The Circuit Court agreed in part, holding that Elf's “direct threat” defense was valid insofar as his posing a threat to co-workers was concerned. It said that such a defense is permitted under the ADA, citing the “Defenses” section of the law.

The Equal Employment Opportunity Commission [EEOC] sets out the following guidelines concerning “direct threat” for the purposes of the ADA: Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

The court rejected EEOC's view that the direct threat defense is available to an employer with respect to its contention that the individual poses a safety risk to himself or herself. In contrast, the Ninth Circuit said that where, as in Hutton's situation, there is no dispute that a significant physical or mental lapse by Hutton as a result of a diabetic episode could result in substantial harm to his co-workers and others, the direct threat defense was available to Elf.

Whether or not an individual poses a “direct threat” to others is to be determined on the basis of an individualized assessment of the individual's present ability to safely perform the essential functions of the job supported by a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

Among the factors to be considered in making such a determination:

1. The duration of the risk;

2. The nature and severity of the potential harm;

3. The likelihood that the potential harm will occur; and

4. The imminence of the potential harm.

Since a claim of “direct threat” is an affirmative defense, the employer bears the burden of proving that an employee constitutes a direct threat.

In Hutton's case there was no dispute that his employment posed some risk of potential harm to others. Was this risk of a sufficient magnitude and probability to disqualify Hutton from the chlorine finishing operator position?

Finding that an individualized assessment of each factor in the EEOC's four-factor test supports the conclusion that Hutton would pose a direct threat to his co-workers and others, the court sustained the lower court's dismissal of Hutton's complaint.

The court ruled that Elf had met the “direct threat” test established by EEOC with respect to Hutton's co-workers and other by demonstrating that (1) the duration of the risk would exist for as long as Hutton held the chlorine finishing operator's job; (2) the nature and severity of the potential harm is catastrophic -- many lives could be lost; (3) although the likelihood that the potential harm will occur is small, whether and when it will occur cannot be predicted; and (4) the imminence of the potential harm is unknown because of the unpredictability of Hutton's condition.

Union use of school e-mail in connection with a school board election

Union use of school e-mail in connection with a school board election

Appeal of John M. Himmelberg and Andrew J. Little, Decisions of the Commissioner of Education, Decision No. 15,490

Himmelberg and Little, unsuccessful school board candidates, challenge certain events related to a school board election. The Commissioner sustained the appeal in part.

Essentially, Himmelberg and Little complained that the president of the Fairport Education Association, the union representing the district’s teachers, used his district e-mail account to send e-mail to the district e-mail accounts of all union members advising the members of the union’s endorsement of two candidates for seats on the board. The e-mail also set forth the reasons the union chose not to endorse Himmelberg and Little.

In response to Himmelberg’s and Little’s objection, the school superintendent said that the union had the contractual right to use the district’s e-mail system to communicate with its members and that neither he nor the board endorsed the union president’s message.

After the election, the union distributed a newsletter to teachers via their district mailboxes. The newsletter included a message from the union president discussing the “hard core haters leading the effort against our school district.” While the newsletter did not refer to either Himmelberg or Little by name, it did name individuals the union president previously had identified as associated with them

Ultimately, Himmelberg and Little appealed to the Commissioner. The Commissioner granted the appeal in part. He said that although a board of education may provide informational material to the voters concerning a vote or election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against use of public funds to promote a partisan political position. Further, said the Commissioner, “Even indirect support, such as a school board giving a private organization access to its established channels of communication to espouse a partisan position has been deemed improper” and “lending indirect support to the private organization’s efforts to influence the vote, permitting such use of school facilities also lends an appearance of prohibited partisan activity by the school district, which should be avoided.”

Accordingly, the Commissioner found that under the facts of this case, the school district improperly permitted the union to use district resources to advocate the union’s position. Although the district asserted that the union’s use of e-mail was undertaken pursuant to its contract and was consistent with the parties’ longstanding practice, the Commissioner said that the parties’ collective bargaining agreement cannot authorize unconstitutional partisan use of district resources.

In contrast, the Commissioner said that “The post-election newsletter … did not constitute improper advocacy. While it contained strong, potentially divisive language, it was not directed at a specific question before the voters and was directed to union members only.

The Commissioner ordered the district to review its policies to ensure that adequate safeguards are in place to guard against improper partisan political activity.

Employee terminated after being found guilty of moral turpitude and dishonesty

Employee terminated after being found guilty of moral turpitude and dishonesty

Health and Hospitals Corporation v Saavedra, OATH Index #1404/11 [Modified as to the penalty to be imposed]

OATH Administrative Law Judge Faye Lewis ruled that a community associate could be sanctioned for off-duty misconduct based upon her admission that she took $4,680 from the City retirement system (NYCERS) that she knew did not belong to her.

The woman had taken a loan from NYCERS and a check was mailed to her even though the money had already been electronically deposited into her account. She cashed the check knowing she was not entitled to it.

ALJ Lewis found a nexus between the conduct and her job, i.e., she was able to obtain the pension loan from NYCERS because she works for the City of New York.

Judge Lewis noted that crimes of larceny are indicative of moral turpitude, which may constitute a basis for discipline.

As to the penalty to be imposed, the Administrative Law Judge found the employee’s expression of remorse at trial to be sincere and noted that the misconduct was not premeditated, but a crime of opportunity and recommended that a 60-day suspension without pay be imposed by the appointing authority.

However, Raquel Ayala, as the designee of Antonio Martin, Kings County Hospital Center's Executive Director, accepted Judge Lewis’ findings of fact but disagreed with Judge Lewis' recommended penalty of a sixty (60) day suspension and imposed the penalty of termination,* concluding that the employee had breached her employer’s trust which, said Ms. Ayala, is essential to anyone’s employment.

Ms. Ayala noted that her determination may be appealed by application to the Personnel Review Board or in accordance with Article 78 of the Civil Practice Law and Rules.

* The courts have ruled that the appointing authority may impose a harsher penalty than the penalty recommended by a disciplinary hearing officer [see Alamio v Ambach, 91 AD2d 695 and Henry v Village of Palmyra, 105 AD2d 1159 for examples of such actions and the standards to be followed in such cases].

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1404.pdf

Witness creditability determinations

Witness creditability determinations

CSEA Local 1000 [Vaziri-Cohen] v Tioga County, 288 AD2d 802

In an administrative disciplinary action, the hearing officer's determination is frequently based on his or her evaluation of the credibility of witnesses testifying at the disciplinary hearing. In the Vaziri-Cohen appeal the Appellate Division considered the issue of credibility in determining if substantial evidence supported the disciplinary determination resulting in Vaziri-Cohen's dismissal.

Susan Vaziri-Cohen was terminated after being found guilty of charges that she had falsified agency records, repeatedly failed to follow her superior's instructions and made demeaning remarks to a co-worker about her supervisor.

The Hearing Officer recommended that Vaziri-Cohen be dismissed from service based on a finding that her conduct had “hindered the mission of the agency and hurt its credibility” and that she “remained unwilling to concede that her behavior was unacceptable.”

CSEA appealed, contending that the hearing officer's findings were not supported by substantial evidence. The Appellate Division disagreed and dismissed the appeal.

The court pointed out that here the finding of the hearing officer with respect to the first charge -- falsification of official records -- turned on issues of credibility and inferences drawn by the hearing officer from the evidence presented. Finding that the conclusion drawn by the hearing officer was supported by both direct and circumstantial evidence, the court sustained the hearing officer's finding. Noting that both Vaziri-Cohen and her supervisor testified during the disciplinary hearing, the court said that “it was within the province of the Hearing Officer to implicitly reject the credibility of [Vaziri-Cohen's] exculpatory explanation.”

As to the second charge -- Vaziri-Cohen's alleged failure to follow work orders -- her supervisor testified that despite several successive directives by him concerning the inclusion of certain information in a client's medical record over the course of one week -- Vaziri-Cohen failed to add the information as directed.

Vaziri-Cohen, on the other hand, testified that she had made the changes directed by her supervisor. The court said that this conflict in the testimony given at the disciplinary hearing raised an issue of credibility implicitly resolved by the Hearing Officer's ruling against her.

As to the charge alleging Vaziri-Cohen made disparaging remarks about her superior to a co-worker, the Appellate Division said that substantial evidence supported the hearing officer's conclusion that, under the circumstances, her comments were “irresponsible and denigrating” and obviates any claim that they were made in good faith.

According to the decision, “the unrefuted testimony, including [Vaziri-Cohen's] admission, established that ... [she] made a denigrating and explicit comment to a co-worker about her supervisor ....”

As to the penalty imposed, dismissal, the Appellate Division wrote that “in view of the nature of the misconduct and insubordination involved in these charges, we see no basis upon which to disturb the penalty of dismissal, which we do not find was so disproportionate [to the offenses to which she was found guilty] as to be shocking to one's sense of fairness,” citing the Pell standard [Pell v Board of Education, 34 NY2d 222].

Creditability was also an issue in the Pelayo case [Pelayo v Safir, App. Div., First Dept., November 27, 2001]. Henry Pelayo, a New York City police officer, was dismissed from his position after being found guilty of administrative disciplinary charges alleging that he “knowingly gave false material testimony in felony court proceedings, and that he provided false information concerning the events underlying [those] criminal proceedings in departmental ... forms.”

The court said that Pelayo “challenges to the credibility determinations of the Assistant Deputy Commissioner are unavailing since, in an Article 78 proceeding, the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative fact-finder.”