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

August 02, 2011

Different types of appointments and employments in the public sector may be made by appointing authorities


Different types of appointments and employments in the public sector may be made by appointing authorities
Matthews v Morristown, 286 A.D.2d 535

Typically a public officer or employee is appointed to a specific position by a particular appointing authority. There are, however, a number of special employment situations in the public service, the four most common being:

1. Joint appointment -- a single individual is employed in a single position funded by two different appointing authorities.

2. Shared employment -- two or more individuals are employed part-time by a single appointing authority and “share” a single position.

3. Dual employment -- a single individual is employed by the same employer to simultaneously serve two different positions.

4. Extra service employment -- an individual, typically working full time for one appointing authority, is simultaneously employed by the same or another appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

The Matthews case involves another type of employer-employee relationship, the special employee.

An employee of the Town of Oswegatchie, Jerry L. Matthews, was severely injured when he was struck by road-grading equipment owned by the Town of Morristown and operated by one of Morristown's employee. This equipment was being used to complete a road project for the Town of Oswegatchie pursuant to a “shared services” agreement entered into by a number of towns in St. Lawrence County.

Matthews sued Morristown seeking damages for his injuries. Morristown named Oswegatchie as a third-party defendant for the purpose of obtaining indemnification from it if Morristown was held liable for Matthews injuries.

Then Morristown and Oswegatchie each moved for summary judgment, claiming that Morristown's machine operator was a “special employee” of Oswegatchie and, therefore, Matthews co-employee.

What is the significance of having such status as “special employee?” If there was a “co-employee” relationship, Matthews exclusive remedy is workers' compensation and he cannot sue Morristown for damages.

The Appellate Division, Third Department explained that “[w]hether a general employee of one employer [here Morristown] may be a special employee of another [here Oswegatchie] is generally a question of fact involving consideration of a number of factors.

Citing Braxton v Mendelson, 233 NY 122, the court said that a number of elements may be helpful in attempting to decide the question. These include who pays the employee's wages; the right to hire or discharge; the right to direct the employee where to go, and what to do; the custody or ownership of the tools and appliances the employee may use in his or her work; and the business of the employer or that of the “special employer.”

In this case these were unresolved issues. The shared services agreement specifically authorized Morristown to provide public works “services” to other municipalities and receive a like number of hours of service in return. The “shared services agreement,” however, did not state that Morristown's employees would be “deemed” employees of the other municipalities when such other municipalities were receiving services being provided by Morristown.

The key issue: Was Morristown's employee in the special employment of Oswegatchie at the time of the accident or was he performing the work which was his duty to perform for Morristown as a Morristown employee pursuant to the shared services agreement.

Finding that “this record does not incontrovertibly demonstrate” that Morristown “exercised exclusive 'control and direction of the manner, details and ultimate results of employee's work,'” the Appellate Division reversed the Supreme Court's order granting Morristown's and Oswegatchie's motions for summary judgment. 

The free speech rights of volunteer workers serving with a public or quasi-public entity


The free speech rights of volunteer workers serving with a public or quasi-public entity
Gorman-Bakos v Cornell Cooperative Extension of Schenectady County and others, CA2, 252 F. 3d 545

Among the issues commented upon by the Second Circuit Court of Appeals in deciding the Gorman-Bakos case was the status of volunteers serving with an “agency of the State.” Does such a volunteer have the same constitutional rights and protections with respect to free speech as are available to a paid employee of an “agency of the State?”

Lynn Gorman-Bakos and her husband, Rodney Bakos, served as volunteers with the Schenectady County Cooperative Extension 4-H program. Contending that they were dismissed from the program in retaliation for their exercising constitutionally protected speech, they sued. The Extension Program, on the other hand, said that the Bakoses had not been terminated but that they had resigned from their respective volunteer positions.

According to the decision, the federal district court justice “presumed that plaintiffs had suffered an adverse employment action,” i.e., they were in fact terminated. Although the Circuit Court did not specifically address the question of whether the Bakoses claims of termination from their respective volunteer positions based on alleged retaliation because of their exercising their right of free speech was the same as those enjoyed by salaried government employees or whether they should be evaluated by applying a different standard, the court did note that in Hyland v Wonder, 972 F.2d 1129, the U.S. Court of Appeals, Ninth Circuit, ruled that: "Serving as a volunteer constituted a government benefit or privilege and that “[r]etaliatory actions with less momentous consequences [than loss of employment], such as loss of a volunteer position, are equally egregious in the eyes of the Constitution because a person is being punished for engaging in protected speech.”

This suggests that the Second Circuit, were it to address the question, would not distinguish between paid employees and volunteer workers insofar as the right to protected free speech is concerned. The general rule in such “free speech” cases was set out in Connick v Myers, 461 US 138. In Connick the U.S. Supreme Court said that federal courts will consider retaliation allegations based on an employee's claim of free speech where the speech concerns matters of public concern in contrast to speech involving “only matters of a personal interest” to the employee.

A second test that must be met by a public employee claiming that his or her employer's action violates his or her right to free speech: Did the employee's statement outweigh the employer's interest in terminating or otherwise disciplining an employee whose conduct “hinder effective and efficient fulfillment of its responsibilities to the public?” Other decisions in which a public employee's right to free speech was considered include Tytor v Laramie County School District, CA10 [unpublished]; Jeffries v Harleston, CA2, 52 F3d 9; and Barnard v Jackson County, CA8, 43 F3d 1218.

Section 207-c line of duty disability not available for disability resulting from an “off-duty” injury

Section 207-c line of duty disability not available for disability resulting from an “off-duty” injury
Wynne v Town of Ramapo, 286 A.D.2d 338

Contending that he was injured in the line of duty, Town of Ramapo police officer William Wynne applied for disability benefits pursuant to Section 207-c of the General Municipal Law. Section 207-c provides certain benefits, including the continuation of their full salary, to law enforcement personnel absent from work because of a disability incurred while performing their official duties.

Wynne conceded that he had injured his hand while off-duty and on vacation. Wynne said that he was driving through a nearby town at the time. Stopped by a resident who knew he was a police officer, he was asked to rescue an infant that accidentally locked himself in the car.

Unable to secure the assistance of the local police, Wynne called the Town of Ramapo police dispatcher. The dispatcher, after speaking with a supervisor, advised Wynne there were no Ramapo patrol cars available and that he was not authorized to break the car window.

Notwithstanding this instruction, Wynne, with the car owner's permission, used a hammer to break a window to free the child. In so doing, Wynne injured his hand.

Wynne testified that he was aware that, other than in high-speed pursuits, the regulations of the police department of the Town of Ramapo required him to obtain permission to take any police action outside of the jurisdiction of the Town of Ramapo.
A hearing officer confirmed a determination by the Ramapo Chief of the Police denying Wynne Section 207-c benefits. Wynne appealed, only to have his petition rejected by the Appellate Division.

The Appellate Division ruled that the determination that Wynne was not acting as a police officer in breaking the window to free the child, and thus, was not entitled to benefits pursuant to General Municipal Law Section 207-c, was rational and was supported by substantial evidence in the record.

In another “off-duty” police officer injury situation, the Attorney General concluded that “a City is not responsible, under Section 207-c of the General Municipal Law, for payment of salary or medical expenses to a police officer who is injured while he is off-duty and working as a security guard for a private employer. (Informal Opinion of the Attorney General, 81-52).

The fact that “the police officer was making an arrest at the time of his injury” did not persuade the Attorney General to the contrary regarding the City's obligation to proved Section 207-c benefits. However, the opinion noted that in some instances, such as an injury resulting from the arrest of a person under a warrant, and unrelated to the performance of his or her “off-duty” work, Section 207-c might apply.

In contrast, in Alifieris v American Airlines, 63 NY2d 370, the Court of Appeals ruled that an off-duty police officer who is sued as a result of his or her official actions, even if he or she acted outside the employing police agency's geographical jurisdiction, is entitled to indemnification if held liable for damages as a result of such off-duty conduct.

The Alifieris case involved an off-duty Suffolk County police officer who was sued by Alifieris for an alleged assault which had taken place in Brooklyn, New York. Cooper claimed that he was acting as a police officer at the time. Suffolk County had argued Cooper could not get indemnification because he was off-duty and outside Suffolk County's jurisdiction at the time the assault was alleged to have occurred.

However, the courts have noted that police officer's conduct, as with any employee, that "is brought on by a matter wholly personal in nature, the source of which is not job-related ... cannot be said to fall within the scope of his employment." [See Stavitz v City of New York, 98 AD2d 529.]

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Work-related stress

Work-related stress
Mattoon v Workers' Compensation Board, 284 A.D.2d 667

An employee is the target of some personnel change or action involving his or her position or assignment. The employee, claiming that the personnel action was “stressful,” quits and then files for unemployment insurance benefits. This was the situation underlying the appeal filed by Lori B. Mattoon.

Mattoon was employed by the New York State Department of Labor as an agency services representative. Her work assignment was changed by her new supervisor. In December 1993, Mattoon left her employment “due to work-related stress that resulted in depression, posttraumatic stress disorder and generalized anxiety disorder.” The Labor Department conceded that “the event ultimately triggering [Mattoon's] psychic injury was a new manager's reassignment of [Mattoon] to a particularly stressful work position.”

The Workers' Compensation Appeals Board, however, denied Mattoon's claim for workers' compensation benefits. The Board determined that Mattoon's inability to deal with her new assignment was a direct consequence of lawful personnel decisions, which were taken in good faith by the employer. Mattoon appealed, arguing that the Board's determination that she did not suffer a compensable psychic injury is not supported by substantial evidence.

The Third Department rejected Mattoon's appeal. It said that it was well established that a psychic injury based upon work-related stress is not compensable if it is “a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.”

The decision comments that a “change of work duties” did not constitute a job transfer” within the meaning of Workers' Compensation Law Section 2.7.

August 01, 2011

AELE focus on personnel issues of interest to those in law enforcement and firefighting


AELE focus on personnel issues of interest to those in law enforcement and firefighting
Source: AELE

AELE, - on the Internet at http://www.aele.org/ - offers a unique resource, with free publications and online back issues since 2000 in three major areas:  

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html

2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html

3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html


AELEs August 2011 issues of these several publications include the following items:

From the Law Enforcement Liability Reporter -- an article concerning the use of deadly force. Here SWAT officers were not liable for the death of a 19-month-old infant whom they accidentally shot while trying to rescue her from her cocaine using father, who was holding her hostage. It was held that the SWAT team had justification for the use of deadly force against the father, who had threatened to kill the child, kill himself, and anyone who entered his auto shop. “The officers acted in an objectively reasonable manner after the father shot at them while holding the child.” Lopez v. City of Los Angeles, #B219499, 2011 Cal. App. Lexis 729 (Cal. App.). On the Internet at: http://caselaw.lp.findlaw.com/data2/californiastatecases/B219499.PDF


From the Fire, Police & Corrections Personnel Reporter -- an article summarizing an appeal from a disciplinary hearings indicating that a police officer's federal lawsuit challenging his arrest and termination for allegedly misappropriating $600 from a crime scene during a search of a home were properly dismissed. The court held that the officers “post-suspension hearing satisfied due process requirements, even though it occurred fourteen days after his acquittal on criminal charges arising out of the incident.” Nunez-Colon v. Toledo-Davila, #09-1784, 2011 U.S. App. Lexis 10639 (1st Cir.). On the Internet at: http://caselaw.findlaw.com/us-1st-circuit/1568924.html


From the Jail and Prisoner Law Bulletin -- an item concerning inmate housing reporting that “A federal appeals court rejected a prisoner's argument that he had a right, under the Ninth Amendment, to choose his own cellmate.” Murray v. Bledsoe, #10-4397, 2011 U.S. App. Lexis 11702 (3rd Cir.). On the Internet at  http://caselaw.findlaw.com/us-3rd-circuit/1570207.html

Interested individuals may register to receive these free electronic publications at http://www.aele.org/law

Also available, AELE’s free search web site providing access to its database of more than 30,000 case summaries posted since 1975 at http://www.aele.org/htdig/common/search.html
 

Authority to initiate discipline for just cause implies the imposition of a “just penalty”

Authority to initiate discipline for just cause implies the imposition of a “just penalty”
Boston Med. Center v Local 285, 260 F.3d 16


Many collective bargaining agreements provide that an employee may be disciplined “for just cause.” However, few contracts define “just cause.”


In the Boston Medical Center [BMC] case, the U.S. Circuit Court of Appeals addressed the application of a negotiated agreement that permitted an employer to discipline employees for just cause. Its conclusion: the term just cause not only applies in initiating disciplinary action against an employee; it also encompasses the concept of imposing a “just penalty” based on the offense or offenses for which the employee is found guilty.


Katherine Hartney, a registered nurse [RN] employed by BMC for some ten years, was terminated following the death of an infant under her care. BMC's action was based on its determination that Hartney “engaged in serious substandard nursing practices” in caring for the infant.


The Union grieved Hartney's discharge to arbitration. The arbitrator ruled that BMC violated the collective bargaining agreement because it terminated Hartney without just cause. She reinstated Hartney and reduced the penalty imposed by BMC from discharge to an unpaid, nine-month suspension without pay. BMC attempted to have the arbitration award vacated.


The issues submitted to the arbitrator:


1. Did the Hospital violate Article XV of the collective bargaining agreement when it terminated the grievant, Katherine Hartney, on October 2, 1998?; and


2. If so, what shall be the remedy?” Article XV of the collective bargaining agreement provides: “No RN who has completed his/her probationary period shall be disciplined or discharged except for just cause.”


The arbitrator concluded that “there is just cause for the imposition of discipline in this matter but ... discharge is too harsh a penalty for an employee with an unblemished record of employment for nearly ten years.” In considering the appropriate penalty, the arbitrator said that:


“While [Article XV] makes no explicit reference to progressive discipline, it references 'just cause,' a concept which encompasses both liability for the action(s) charged and fairness in the amount of discipline imposed.”


BMC was ordered to reinstate Hartney, without back pay, and directed Hartney to participate in a remedial educational program as part of the reinstatement process.


The Circuit Court decided that the plain language of Article XV, requiring just cause before an RN is disciplined or discharged, contemplates a range of disciplinary penalty responses. The court said that it agreed with the arbitrator's rationale that the concept of just cause requires a close relationship between the employee's misconduct and the employer's response along that disciplinary range.


Thus, said the court, the arbitrator was free to conclude that there was no just cause for discharging Hartney, but that there was just cause for imposing a lesser disciplinary penalty. In other words, it was appropriate for the arbitrator to conclude that the employer's right to discipline an employee for just cause was subject to consideration of a just penalty as well. This concept has been recognized by New York State's Court of Appeals in Pell v Board of Education, 34 NY2d 222.

In reversing the district court's judgment granting summary judgment in favor of BMC, the Circuit Court said that it did not minimize in any way the tragic death of the infant. However, the court explained, BMC signed a collective bargaining agreement containing an arbitration clause conveying substantial authority to the arbitrator to decide whether there is just cause for discharge. If, said the Circuit Court, BMC wants to reserve more “disciplinary authority” to itself, it may attempt to do so during its next round of contract negotiations.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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Assigning a principal to a school


Assigning a principal to a school
Commissioner of Education's Decision 14,606

Section 100.2(a) of the Commissioner's regulations, requires a board of education to “employ and assign to each school under its supervision a full-time principal holding the appropriate certification....”

Parents of children attending Olean City School District elementary schools challenged a resolution adopted by the school board on November 21, 2000 providing “that an alternative mode of building administration be employed effective July 1, 2001 that would combine the principalship responsibilities of the North Hill and Boardmanville Elementary Schools.” The two schools are eight tenths of a mile apart. The parents asked the Commissioner to order the district “to comply with the Commissioner's regulations and retain a full-time principal for each school.”

Although the Commissioner dismissed the appeal as untimely, he cautioned that “it appears from the record that a variance request is required to effectuate respondent board's resolution.”*

As to the district's argument that the fact that the two schools are located 8/10 of a mile apart justifies the appointment of one principal for the two schools, the Commissioner said that “there are no distance prerequisites in the regulation that would obviate the need for the district to apply for a variance.”

The Commissioner distinguished between a situation such as Olean's where a district fails to assign a principal to each of its separate schools and a situation where a district has assigned a principal to “a school composed of more than one building in close proximity,” citing the appeal of the Middle Island Principals' Association, Commissioner's Decision 10,229.

The Commissioner advised the district “to carefully consider any principal appointments to assure compliance with all applicable regulations.” The State Education Department's variance office was directed to contact the district concerning the status of its principal appointments and the submission of a variance request in the event “an alternative mode of building administration” is still desired.

As an example, a variance was granted to a school district that had decided to administer its two smallest elementary schools by assigning a team of one principal and two assistant principals to them. The Commissioner rejected an appeal contending that the District could not do this [Commissioner's Decision 10,851], commenting that both assistant principals held valid elementary principal certificates and were qualified to perform the duties assigned to them.
* Section 100.3 of the Regulations of the Commissioner of Education permit a waiver from the general provision that “each school in a District shall have assigned to it a qualified principal.”

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

Teacher claims his harassment by students violates Title VII and the Civil Rights Act
Peries v NYC Board of Education, USDC, EDNY, 97 CV 7109(APR), 2001 WL 1328921

Vincent Peries was born in Sri Lanka in 1933. After he came to the United States in 1968, he received a Ph.D. in Adapted Physical Education and Child Development, as well as an MBA in international finance and a M.Sc. in Teaching English as a Second Language. After teaching at several colleges, he taught at several New York City public schools, including at Francis Lewis High School. At Francis Lewis Dr. Peries taught special education courses, working in both a resource room setting, where students receive individual assistance, and in self-contained classes.

Dr. Peries' Title VII and 42 USC 1981 complaints alleged that since the early 1990s, he has been subjected to a “steady barrage of insults and demeaning conduct from students based on [his] national origin and race.”

Federal District Court Judge Ross said that Peries' claim in this case is unusual in that the alleged harassment was not by co-workers, but by Peries' students and neither party identified any litigation involving this type of harassment. Judge Ross said the “most relevant cases in the Title VII context are those in which an employee has been harassed by the customers of his employer.”

In one case involving employees harassed by their employer's customers, Quinn v Green Tree Credit Corp., 159 F.3d 759, the U.S. Circuit Court of Appeals, Second Circuit, held that in such situations “such a duty can be no greater than that owed with respect to co-worker harassment.” In Quinn, the court referred to 29 CFR 1604.11(e), which provides:

An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the [EEOC] will consider the extent of the employer's control and any other legal responsibility, which the employer may have with respect to the conduct of such non-employees.

Although there may be some circumstances in which an employer truly has little or no authority to control the actions of customers, rendering the employer's duty less than that for co-worker harassment, the relationship between school officials and students is not such a situation. In Davis v Monroe County Board of Education, 526 US 629, the Supreme Court held that a school board may be liable for the failure to stop students from sexually harassing other students if school officials are deliberately indifferent to the harassment.

As to Dr. Peries, the court said that he can prevail only if he can show first that a hostile environment existed and second that the school board either provided no reasonable avenue of complaint or knew of the harassment and failed to take appropriate remedial action.

Dr. Peries has shown the existence of a hostile work environment. The second issue: whether school officials took appropriate remedial action is a question of fact, not law.

The jury's analysis of this question can include such issues as what disciplinary options are available short of student suspension and what constitutes a proper division of student disciplinary responsibility between administrators and teachers.

Although Peries has failed to state a prima facie case with respect to his allegations that any school officials harassed him, his claim that school officials knew, or should have known, about the harassment by students and failed to take appropriate remedial action may go to a jury.

Accordingly Judge Ross ruled that Dr. Peries' Title VII hostile work environment claim against the Board of Education survived, but his civil rights claims against the individual defendants must be dismissed.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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