NYSUT not a public employer within the meaning of the Taylor Law

NYSUT not a public employer within the meaning of the Taylor Law
Mtr. of Curtis Birthwright and NYSUT, PERB Case U-26457

The Board affirmed the Decision of the Director of Public Employment Practices and Representation (Director) dismissing as deficient Birthwright's improper practice charge alleging that NYSUT violated §§209-a.1(a), (b) and (c) and 209-a.2(a), (b) and (c) of the Public Employees' Fair Employment Act (Act). The Director dismissed the alleged violations of §209-a.1 of the Act as NYSUT is not a public employer within the meaning of the Act and the §209-a.2 allegations as NYSUT is not a public employee organization and owes no duty of fair representation to Birthwright. The Board reiterated that timely service upon other parties is a component of timely filing and that exceptions that have not been timely served will be denied, even if no objection to failure of service is received from the other parties to the proceeding. Birthwright filed exceptions with the Board on January 31, 2006, however, his exceptions were not served on NYSUT until March 2, 2006. The exceptions, not having been timely served on NYSUT, were denied. 

Judicial review – credibility of a witness

Judicial review – credibility of a witness
Danahy v Kerik, 298 A.D.2d 278

Assuming a public employer follows proper procedure, what must be shown to sustain discipline it invoked under Section 75 of the Civil Service Law? Historically the courts have indicated that as long as there is substantial evidence supporting the finding(s) of fact and that the disciplinary penalty imposed did not violate the Pell standard, they will not disturb the decision of the employing body.

Under the Pell standard, the Court will not substitute its judgment as to appropriate disciplinary action for that of the employing body unless the discipline is so harsh as to "shock one's sense of fairness."

What happens, however, when there is an issue concerning the credibility of a witness's testimony? In Danahy, the Appellate Division reaffirmed its long-standing position that it will not overrule a hearing officer who decides to credit one witness's testimony over another's. In other words, the trier of the case's decision as to creditability will prevail unless the challenging party can demonstrate that such reliance was manifestly improper, a difficult task at best.

Disciplinary charges alleging misconduct were filed against a New York City police officer, Kevin Danahy. The hearing officer found Danahy guilty of the charges -- he used excessive force in making an arrest -- and recommended that Danahy be suspended for 20 days without pay. The Police Commissioner accepting the hearing officer's findings and recommendation.

Danahy had testified that he didn't strike or otherwise injure the complainant, but rather he and the complainant merely fell to the ground while the complainant was flailing his arms in an attempt to avoid being handcuffed. The hearing officer, however, rejected Danahy's version of the event and found him guilty of the charges.

Danahy commenced an Article 78 proceeding challenging the ruling, contending that (1) the decision wasn't supported by substantial evidence and that (2) the discipline imposed violated the Pell Standard. The Court said that it would not disturb the hearing officer's determination as to the credibility of witnesses and that the 20-day suspension did not violate the Pell Standard.

Typically the courts will consistently defer to a hearing officer with respect to the determinations concerning the credibility of the witness testifying in a Section 75 disciplinary hearing. Essentially, where the court determines that there is substantial evidence to support the hearing officer's findings and establish guilt, the critical question becomes whether or not the penalty imposed reasonable under the circumstances.

In this instance the Appellate Division held that a suspension for 20 days without pay "did not shock its sense of fairness" and sustained the Commissioner's determination.

Termination of an employee during a probationary period or traineeship

Termination of an employee during a probationary period or traineeship
Dasey v Anderson, CA1, 304 F.3d 148

What are the rules governing the dismissal of a person permanent appointed to his or her position during his or her probationary period?

Are the same principles applied in cases involving an individual who is required to satisfactorily complete a traineeship as a condition of employment?

The Dasey case provides an opportunity to consider these questions.

The individual was dismissed from his position as a probationary state trooper on the grounds that he made a material misstatement in his employment application.

According to the U.S. Circuit Court of Appeals' decision, the individual had satisfactorily completed his training at the Massachusetts State Police Academy and was enlisted as a probationary uniformed member of the Massachusetts State Police [MSP]. In the course of completing his employment application for State Trooper, the trooper stated that he did not use illegal drugs and, during the preceding five-year period, had not "used, possessed, supplied or manufactured any illegal drugs."

On September 14, 1999, while the trooper was still in probationary status, MSP's review of a videotape that had been seized by state troopers while executing a search warrant in an unrelated homicide investigation. The videotape "revealed Dasey and others apparently smoking marijuana." MSP deemed Dasey as having made a false material statement when he denied prior drug use during the application process and he was given a "general discharge" from the MSP effective close of business September 14, 1999.

Dasey sued MSP, claiming it had violated federal and state laws by failing to provide him with a pre-termination hearing. A federal district court judge granted MSP's motion for summary judgment dismissing Dasey's petition, explaining that while in probationary status Dasey had no reasonable expectation of continued employment and thus he had no constitutionally protected property interest in his job. The Circuit Court of Appeals affirmed the District Court's ruling.

Dasey also contended that he was entitled to a hearing was based on a provision in the collective bargaining agreement [CBA] negotiated by the MSP and the union. The CBA included a "bargained-for extension of the right to a pre-termination hearing" to all troopers. In response to this argument the Circuit Court of Appeals held that:

Because neither the collective bargaining agreement nor the MSP's customs and practices provided Dasey with a reasonable expectation of continued employment, he had no constitutionally protected property interest in his job. Absent such an interest, he had no right to a pre-termination hearing.

The general rule in New York State is that a permanent appointee whose employment is subject to the disciplinary provisions set out in Section 75 of the Civil Service Law is entitled to notice and hearing before he or she may be terminated for disciplinary reasons. While serving his or her probationary period, however, an individual permanently appointed to such a position may be dismissed without notice and hearing for any lawful reason after he or she has completed the minimum period of probation and prior to the end of his or her maximum period of probation.

In contrast, if the appointing authority wishes to dismiss a probationary employee before he or she has completed the minimum period of probation, the courts have held that the individual is entitled to notice and a pre-termination hearing.

Another factor might be relevant in cases of probationary employment - traineeship requirements.

In Franks v South Beach Psychiatric Center, Supreme Court, Richmond County, the interrelationship between temporary service, permanent appointment, trainee status and probation was considered.

Franks had been appointed as a Mental Hygiene Therapy Aide Trainee. This appointment involved the satisfactory completion of a one-year training period.

Because of outstanding preferred lists, Franks was initially appointed to his position as a temporary employee pending canvass of the preferred lists and he commenced his "traineeship" in the position. On January 21, 1984, some three months later, Franks was "permanently appointed" to the position, subject to the successful completion of a 52-week probationary period.

On January 2, 1985 Franks was terminated from his position without any hearing because of his alleged failure to satisfactorily complete the probationary period.

Franks claimed that his period of probation had to coincide with his training period and since he had completed his training period in October 1984, he was not a probationary employee at the time of his termination. Accordingly, he argued, he could not be discharged without notice and hearing.

The Appellate Division ruled that there was no merit to Franks' argument. Why? Because, explained the court, under the controlling probationary rules, the probationary period for a trainee is from 26 to 52 weeks or the length of the training period, which ever is longer. As Frank's permanent appointment did not become effective until January 21, 1984, (at which time he was still a trainee) his 52-week probationary period would not end until January 20, 1985. Accordingly, his termination without any hearing on January 2, 1985, was made while he was still a probationary employee and was therefore lawful.

The Franks decision supports the proposition that a traineeship and the probationary period are two different conditions of employment For example, a trainee may be serving as a provisional employee, complete the traineeship, and later take and pass the required examination and subsequently be appointed on a permanent basis.

His or her required probationary period pursuant to Section 63 of the Civil Service Law would commence upon the individual's permanent appointment to the position, notwithstanding the fact that he or she may have already successfully completed the required traineeship.

By the same token, if a traineeship extends beyond the probationary period, the individual may be subject to termination without notice and hearing if he or she fails to complete the traineeship satisfactorily.

Another case that distinguishes between probationary status and traineeship status is Sergeants v Brooklyn Developmental Center, 56 NY2d 628.

In Sergeants, a number of probationary employees were terminated at the end of their respective probationary periods. They sued for reinstatement contending that they had not been provided with the 200 hours of training required by department regulations.

Dismissing their appeal, the Court of Appeals first affirmed the principle that "... the employment of a probationary employee may be terminated at the end of the probationary term without a hearing and without specific reasons being stated."

The court then rejected Sergeants' "traineeship argument," commenting that the mandated training involved would not have addressed the particular demonstrations of poor performance leading to their respective terminations. The evidence in the record, said the court, indicated that the poor performance was related "to fitness for the position" rather than job performance elements that the training provided for by regulation could remedy.

Among the examples of poor performance cited by the court were sleeping on the job, habitual lateness, unscheduled absence, failure to perform overtime assignments and similar poor work habits.

The decision also indicated that the only issue for review was whether the appointing officer acted in good faith in terminating the employee.

The lesson here: Satisfactory completion of probation and satisfactory completion of a traineeship are two different requirements that must be met by the appointee and he or she must satisfy both in order for a permanent appointee to be continued in service.

Where the successful completion of a traineeship is required in order to be continued in service, however, that condition should be communicated to the individual in the examination announcement or in the offer of his or her appointment to the position.

As to the authority for requiring the completion of a traineeship, the rules of the State Civil Service Commission concerning traineeships are set out in 4 NYCRR 4.3 and provide as follows:

Section 4.3 Trainee appointments and promotions. The Civil Service Department may require that permanent appointments or promotions to designated positions shall be conditioned upon the satisfactory completion of a term of service as a trainee in such a position or in an appropriate, lower, training title or the completion of specified training or academic courses, or both. The period of such term of training service shall be prescribed by the department. Upon the satisfactory completion of such training term, and of specified courses if required, an appointee shall be entitled to full permanent status in the position for which appointment was made. Any appointment hereunder shall be subject to such probationary period as is prescribed in [Section 4.5 of] these rules. Also, the employment of such person may be discontinued at the end of the term of training service if his conduct, capacity or fitness is not satisfactory, or at any time if he fails to pursue or continue satisfactorily such training or academic courses as may be required.

Many municipal civil service commissions have adopted similar rules concerning traineeships.

Employees assumed to have knowledge of their employer's policies

Employees assumed to have knowledge of their employer's policies
Gallagher v Commissioner of Labor, 298 A.D.2d 828

Robert J. Gallagher was suspended from his position as a senior insurance examiner after criminal charges were filed against him. The criminal charges alleged that he had purchased and sold stock options in an insurance company that was regulated by his employer, the New York State Department of Insurance.

Gallagher filed for unemployment insurance benefits but his application was denied. He appealed to the Unemployment Insurance Appeal Board. In his appeal Gallagher admitted to his buying and selling stock options in a company that was regulated by the State Department of Insurance but claimed that he did not know that such conduct was prohibited at the time.

Accordingly, he contended, he should not be deemed culpable to the point that he was ineligible for unemployment insurance benefits.

The Board, however, denied Gallagher's appeal seeking unemployment insurance benefits after it determined that he had engaged in disqualifying misconduct. Gallagher sued, challenging the Board's ruling.

In the words of the Appellate Division,

It is well settled that "[a]n employee's apparent dishonesty or failure to comply with the employer's established policies and procedures can constitute disqualifying misconduct"

The Appellate Division said the record established that not only were such transactions were against the employer's policies, -- they were unlawful. Further, the job description of Gallagher's position and his responsibilities required him to understand the Insurance Law.

In effect, the court said that Gallagher, serving as a Senior Insurance Examiner, would be deemed to have knowledge of the relevant Insurance Department policies and the Insurance Law.

Under the circumstances, said the court, substantial evidence supports the Board's decision that Gallagher knew or should have known that his actions were prohibited. It sustained the Commission's decision and dismissed Gallagher's appeal.

Employer's liability for employee’s off-duty conduct

Employer's liability for employee’s off-duty conduct
Perez v City of New York, App. Div., 1st Dept., Docket #1973

In Donahue v Young, Appellate Division, Second Department, Docket 2001-09542, the court held that a municipal employer was not liable under the doctrine of respondent superior[1] when one of its firefighters, while off duty, assisted in extinguishing a fire and in the course providing such assistance, injured a third party. However, the Perez ruling suggests that the courts may view this type of situation differently when the employee in question is a police officer.

In essence, the doctrine "respondeat superior" embraces the concept that the employer is responsible for the actions of its employees.

In the process of making an arrest while off-duty, a New York City police officer, shot and killed an innocent bystander. While not specifically holding that the City was liable for the police officer's action, the Appellate Division did say that the fact that the officer was making an arrest was in and of itself enough to raise a "triable issue" as to whether the City was liable under the theory respondent superior.

The court indicated that "there were substantiated complaints pre-dating the shooting of Perez lodged against the police officer with the Civilian Complaint Review Board." Accordingly, said the Appellate Division, there were issues of fact as to whether the City negligently trained the officer and, or, negligently retained him in its employ.

The Legislature has often provided special benefits for law enforcement and firefighting personnel. For example, Article 14 of the New York State Civil Service Law provide unionized firemen and unionized police the right to interest arbitration regarding terms and conditions of employment whereby other unionized public employees do not. Also, both law enforcement and firefighting personnel enjoy eligibility for special benefits under Sections 207-a and 207-c of the General Municipal Law if they are injured in the course of their employment.

As in Donahue, the police officer was performing a duty he would otherwise perform if officially on duty in the course of which a third party was injured or otherwise harmed. While the Court did not affirmatively decide that the City was culpable, it is clearly stating that there is a legitimate question as to whether the doctrine of respondeat superior applied.

New York State courts have long held that police officers are legitimately held to a higher standard than other public employees for the purposes of discipline. This decision suggests that a law enforcement agency may also be held to a higher standard than other public employers when one of its officers causes an injury to someone while the employee was off duty.

[1] In essence, the doctrine "respondeat superior" expresses the concept that the employer is responsible for the actions of its employees performed in the course of their regular duties.

Public employee must serve in a “safety-sensitive” position in order to be subject to random testing for alcohol or unlawful drugs

Public employee must serve in a “safety-sensitive” position in order to be subject to random testing for alcohol or unlawful drugs

New York City Department of Transportation v R.B., OATH Index #1215/11

R.B., a maintenance worker employed by the Staten Island Ferry Division of the Department of Transportation was served with disciplinary charges after testing positive for marijuana in a random drug test.

R.B. challenged the Division’s subjecting him to a random drug and alcohol test that led to the disciplinary action, contending that as he did not serve in a “safety-sensitive” position as he did not perform work on the ferries or on ferry equipment and thus subjecting him to such testing was an unreasonable search under the Fourth Amendment to the United States Constitution.

OATH Administrative Law Judge Faye Lewis agreed, holding that because R.B. duties were custodial in nature, performed in the ferry buildings and grounds under direct supervision, subjecting him to such random testing violated his rights under the federal Constitution. Judge Lewis sustained R.B.'s motion to dismiss the disciplinary charges filed against him.

The Court of Appeals had approved random drug testing in specific instances such as the testing of law enforcement personnel assigned to narcotics interdiction [see Caruso v Ward, 72 NY2 432]. In contrast, in the Patchogue-Medford Congress of Teachers case, 70 NY2d 57, the court held that reasonable expectations of privacy required probable cause to permit the school district to require probationary teachers to undergo random testing for unlawful drugs.

As the Court of Appeals held in Delaraba v Nassau County Police Department, 83 N.Y.2d 367, “[i]t is well established law that random drug screening constitutes a search and seizure within the meaning of the Federal and State constitutions (National Treasury Employees Union v Von Raab, 489 US 656; Matter of Caruso v Ward, 72 NY2d 432). The guarantee against unreasonable searches and seizures found in both the State and Federal Constitutions (NY Constitution, Article 1, 12; US Constitution, 4th Amend) is designed to protect the personal privacy and dignity of the individual against unwarranted intrusions by the State (Matter of Abe A., 56 NY2d 288; Matter of Patchogue-Medford Congress of Teachers v Board of Education of the Patchogue-Medford Union Free School District, 70 NY2d 57, 64).

“A three-pronged standard of review was articulated in Patchogue-Medford as it related to all probationary teachers eligible for appointment to submit to a urine test for the purpose of detecting potential drug abuse. This Court, invalidating the plan, held that a drug screening plan must be closely scrutinized and permitted only where: (1) the individual's privacy interests are minimal, (2) the government's interests are substantial, and (3) safeguards are in place to ensure that the individual's reasonable expectations of privacy are not subject to unregulated discretion (Patchogue-Medford, supra at 70).”

The general rule in New York State with respect to requiring a "non-security or safety sensitive" public employee to submit to random drug tests is that except where a negotiated agreement or statute authorizes or requires random drug testing, a public employer must have reasonable cause or justified suspicion to require an employee to take an involuntary drug test.

The R.B. decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1215.pdf

Individual disciplined for off-duty misconduct

Individual disciplined for off-duty misconduct
Mahadio v Kerik, 298 A.D.2d 305

New York City police officer was served with disciplinary charges that alleged that while he was off-duty, he "wrongfully and without just cause displayed his weapon while making a threatening remark to a civilian" ... and that he addressed persons ... in an ethnically offensive manner.

Found guilty, Police Commissioner Bernard B. Kerik imposed the penalty of a forfeiture of 25 vacation days. The officer appealed, only to have the Appellate Division unanimously confirmed the Commissioner's determination.

The court said that substantial evidence supported the Commissioner's decision and that there was no basis to disturb his determination concerning the credibility of the witnesses testifying. As to the penalty imposed, the Appellate Division said that the forfeiture of 25 days of leave did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32.

Determining member service credit for retirement

Determining member service credit for retirement
Panigrosso v McCall, 298 A.D.2d 797

The Panigrosso case concerned determining the eligibility of a disabled individual for ordinary disability retirement benefits.

Vincent A. Panigrosso, Jr., was employed in the Putnam County Highway Department as a mechanic's helper. In November 1996, while attempting to remove a tire, another tire, which had been leaning against a wall, began to fall toward him. Panigrosso attempted to catch the falling tire and in so doing he injured his back to the extent that he required surgery.

On June 24, 1997, while again attempting to remove a tire from its rim, Panigrosso experienced pain in his back, left work and never returned. He filed an application for accidental disability retirement benefits contending that he was permanently disabled as a result of his November 1996 and June 1997 "accidents."

Panigrosso subsequently filed a second application, this time seeking ordinary disability retirement [ODR] benefits. He claimed eligibility for ODR benefits because he said that he had completed 10 years of service credit and thus was not required to show that he was disabled as the result of a job-related accident.

Ultimately both applications were rejected. The Retirement System decided that:

1. Both of Panigrosso injuries occurred while he was performing the customary duties of his employment and, hence, the underlying incidents could not be deemed "accidents" within the meaning of Retirement and Social Security Law Section 605(b)(3); and

2. Panigrosso had not accumulated the required ten years of member service credits to be eligible for ordinary disability retirement. [Also, it should be noted that Panigrosso was not actually "in service" at the time he applied for ODR benefits.]

As to Panigrosso's accidental disability claim, the Appellate Division ruled that the November 1996 and June 1997 incidents did not constitute "accidents" within the meaning of Section 605(b)(3). In the words of the court:

An "accident" is a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of ordinary employment duties. Here, the record reveals that ... both incidents in question occurred while [Panigrosso] was performing his usual employment duties.

As to Panigrosso's eligibility for ODR claim, the court said that the record clearly indicated that Panigrosso did not accumulate 10 years of service credit with the Retirement System.

Panigrosso had begun his employment with Putnam County in January 1990 and was removed from the payroll in August 1997. Once petitioner was off the payroll, he stopped accumulating service credit. Not having at least 10 years of member service credit, the Appellate Division ruled that he was clearly ineligible for an ordinary disability retirement allowance.