Contacting a party in an administrative proceeding using his or her last known address

Contacting a party in an administrative proceeding using his or her last known address

NYS National Organization for Women v Pataki, CA2, 261 F.2d 156

Courts sometimes provide insights into administrative due process procedures in the course of considering a case that essentially focuses on a completely different issue. In the National Organization for Women [NOW] case, which concerned due process in the adjudication of alleged violations of an individual's civil rights, one of the ministerial issues considered by the Circuit Court of Appeals, Second Circuit, was an administrative agency's duty to “track down” an individual.

In this “class action,” NOW sued the NYS Division of Human Rights [Division] on behalf of individuals who, since October 15, 1990, “had filed [or will file] complaints of discrimination with the Division and whose complaints have not been, or will not be, finally administratively adjudicated or otherwise substantively resolved within three years of the date of the filing of the complaint.” NOW alleged that the Division violated the class members' Fourteenth Amendment procedural due process rights as a result of its:

1. protracted delays in processing their discrimination claims that prejudiced such claims; and

2. deficiencies in notifying certain individuals that their claims were to be dismissed for “administrative convenience.”

One of the arguments advanced by NOW was that certain class members were not advised that the Division had dismissed their claims for “administrative convenience” because the Division was unable to locate them. It appears that these individuals had moved after filing their complaint but never advised the Division of their new address.

Was the Division incorrect when it dismissed discrimination complaints for “administrative convenience” because the Division was unable to locate the individual? The court said that the Division's use of the U.S. Postal Service to send the notice to complaints “at the last address furnished to the Division comports with due process.”

Sometimes such a “lack of notice” will become an issue in connection with a disciplinary hearing that has been conducted “in absentia.”

In “in absentia” disciplinary adjudications a hearing is held despite the employee's failure to appear at the hearing and his or her absence is unexplained. Typically the agency is required to prove its case against the employee to the hearing officer or arbitrator notwithstanding the absence of the employee or his or her representative.

Before holding a disciplinary hearing in absentia the employer or the hearing officer should make a reasonable attempt to locate the individual and determine the reason why he or she has not appeared at the hearing. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness that would justify the hearing officer granting an adjournment of the hearing.

If the employee is found guilty of the charges and later challenges the determination, or the penalty imposed, on the grounds that he or she never received any notice of the time and place of the hearing because the notice was not sent to his or her “new address,” it seems clear that the courts will not be too sympathetic to such an argument unless the individual can show that he or she advised the employer of his or her new address and the employer neglected to note the change of address in its records.

Portal to portal pay

Portal to portal pay

Manners v State of New York, 285 A.D.2d 858, [Appeal dismissed, 97 N.Y.2d 637]

Charles W. Manners, Jr., a State Officer of General Services [OGS] construction superintendent asked the Court of Claims to direct OGS to pay him overtime compensation pursuant to the Fair Labor Standards Act (29 USC 201). Manners contended that OGS, by “requiring” him to use a State vehicle to commute to and from his assigned workstation, is obligated to pay him overtime for his commuting time.

The Court of Claims dismissed his claim [183 Misc 2d 382]. The Appellate Division, Third Department agreed, holding that although “the Fair Labor Standards Act [FLSA] requires employers to pay employees for all work performed, under the Portal-to-Portal Act (29 USC 251), time spent by an employee commuting to and from work, even in an employer-provided vehicle, is not compensable”

The court noted that there was no dispute that Manners was not engaged in any work-related activity while commuting to and from his assigned work station and thus the Court of Claims properly determined that this travel time was not compensable.

Reemployment of public retirees

Reemployment of public retirees

Connolly v McCall, CA2, 254 F.3d 36

Section 150 of the Civil Service Law and Section 211 of the Retirement and Social Security Law [RSSL] set out the rules governing the reemployment for compensation of an individual receiving a retirement allowance from a New York public retirement system. The basic purpose of these provisions: to control so-called “double dipping” by individuals retiring from State or municipal public service and subsequently accepting employment with their former or another New York public employer.

The basic provision, Section 150, directs that the individual's retirement allowance from a New York public retirement system “shall be suspended during such service or employment and while such person is receiving any salary.”

RSSL Section 211, on the other hand, allows an exception to Section 150's absolute bar to simultaneously receiving such compensation and a retirement allowance from a New York public retirement system. It permits the employment of a retired person in a position or positions in the public service, subject to certain earning limitations, without any effect on his or her status as retired and without suspension or diminution of his or her retirement allowance,” provided that certain conditions are met. Retirees granted such a “Section 211 approval” are barred from participating in the pension plan associated with their second public job.

Timothy J. Connolly retired New York City Police Department and subsequently was employed by the New York State Organized Crime Task Force. A number of Section 211 approvals were granted in connection with Connolly's post-retirement employment by the Task Force.

Connolly challenged the limitation of his joining a retirement system set out in Section 211, claiming that it violates the federal constitution by requiring a retiree to either forgo receipt of the pension benefits accrued from the first job or forgo accumulation of additional pension benefits from the second job. Connolly pointed out that no such limitation was imposed upon the employment of an individual who retired from the private sector or the federal government or who was receiving a “non-New York public retirement benefit upon employment by the State.

McCall argued that New York's approach regarding the re-employment of retirees furthers its legitimate interest in saving public money by barring pension practices that have the character of “double-dipping,” i.e., preventing an individual's continuing to receive a New York public pension while also receiving a New York public salary. This, said McCall, reflects the notion that such simultaneous income streams “could constitute an abuse of the public fisc.”

Considering the merits of Connolly's 14th Amendment arguments, the Circuit Court of Appeals ruled that Connolly failed to state a claim either under the Due Process or the Equal Protection Clauses of the 14th Amendment.

Connolly challenged “the substantive fairness of New York law.” However, said the court, in so doing Connolly failed to identify any protected property interest of which he has been deprived. In reality Connolly “is objecting to ... the very fact that New York law confers no property interest on people in his circumstances.”

As to Connolly's Equal Protection theory, which he based on the alleged disparity of treatment between New York state and local public employees who previously worked for another New York State or municipal employer, and those who previously worked for a private employer, or a non-New York public employer, the Circuit Court pointed out that “[o]nly the former class of employees is forced to choose between giving up the pension associated with their prior job and giving up accrual of additional pension benefits in their subsequent New York public employment.”

The basic rule applied by the courts in resolving a challenge based on “equal protection” claims: the classification must be upheld against the equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

In the Circuit Court's view, whether or not New York's Civil Service Law Section 150-Retirement and Social Security Law Section 211 formula constitutes a sound policy is irrelevant. Here, said the court, “there is nothing irrational about the state deciding that at any one time a public employee should not both be accruing a new public pension and receiving an old public pension.”

In the words of the court, “[w]hen both the jobs, and their associated pension plans, involve New York public employment, the state's interests in, and control over, their financial consequences are stronger than when only the second job involves New York public employment.”

Ruling that New York's approach does not offend federal principles of equal protection, the Circuit Court dismissed Connolly's appeal.

Complaint alleging educational malpractice dismissed

Complaint alleging educational malpractice dismissed

Helm v. Professional Children’s School, 103 Misc 2d 1053

In Helm, a Court of Claims judge ruled that problems, including the practical impossibility of proving that the alleged malpractice of the teacher was the cause of the learning deficiency claimed by the parents of a child and the fact that student attitudes, motivation, home environment and temperament may all play an essential role, should, as a matter of public policy, bar consideration by the Court of Claims of educational malpractice against either public or private schools.

The opinion referred to the decision in Donahue v. Copiague Union Free School District, 47 NY2d 440, a case that involved a similar question.

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.