Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia October 14, 2011

Joseph, et al. v. Hyman, et al.

Court: U.S. 2nd Circuit Court of Appeals

Docket: 10-3943

October 12, 2011

Judge: Wesley

Areas of Law: Constitutional Law, Government & Administrative Law, Tax Law

Appellants sued New York City and the State, along with a number of city and state officials, challenging a tax scheme that exempted New York City residents from a tax levied on parking services rendered in Manhattan. Appellees subsequently filed a motion to dismiss, arguing, among other things, that comity barred the federal courts from hearing appellants' challenge to the state law. The district court granted the motion and the court affirmed, holding that because New York state courts have the ability to implement a remedy that the federal courts could not, Levin v. Commerce Energy, Inc. counseled in favor of dismissing the complaint pursuant to comity.

http://j.st/pQP

Greater Houston Small Taxicab v. City of Houston

Court: U.S. 5th Circuit Court of Appeals

Docket: 10-20381

October 10, 2011

Judge: Jones

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law

Plaintiff, a group representing taxicab companies that hold only one to three permits for cabs, asserted that the city's plan to distribute new taxicab permits violated the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to the city and plaintiff appealed. The court held that plaintiff had not demonstrated that the ordinance violated the Equal Protection Clause by treating taxi companies differently based on size and therefore, the court affirmed the judgment of the district court.

http://j.st/pYz

Johnson v. Carroll, et al

Court: U.S. 8th Circuit Court of Appeals

Docket: 10-2889

October 7, 2011

Judge: Wollman

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Injury Law

Appellant filed suit against four Minneapolis police officers and the City of Minneapolis pursuant to 42 U.S.C. 1983, claiming that the officers used excessive, unreasonable force against her, in violation of the Fourth and Fourteenth Amendments. The court reversed the district court's grant of summary judgment on the excessive force claim and held that there were genuine issues of material fact regarding whether the officers used excessive force against appellant. The court affirmed the district court's dismissal of the section 1983 claims against Officer Carroll because appellant admitted that he did not use excessive force against her. The court agreed with the district court's conclusion that because appellant did not allege any damages, she failed to state a claim under the Minnesota Government Data Practices Act. Minn. Stat. 13.01, subdiv. 1. The court held, however, that the district court failed to consider whether appellant could recover her costs and disbursements in her December 19, 2008 action to compel compliance under Minn. Stat. 13.01, subdiv. 4. Therefore, the court remanded for a ruling on whether appellant was entitled to costs or disbursements under that section of the statute. The court finally held that the district court properly dismissed appellant's common law battery claims against officers as untimely because the two-year statute of limitations period had expired. The court held, however, that appellant presented sufficient evidence to preclude summary judgment on the basis of official immunity on the alleged state tort claims.

http://j.st/ppN

Riley v. Sun Life and Health Ins., et al.

Court: U.S. 8th Circuit Court of Appeals

Docket: 10-2850

October 7, 2011

Judge: Beam

Areas of Law: ERISA, Government & Administrative Law, Insurance Law

Appellant appealed the district court's grant of summary judgment in favor of Sun Life in an Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 et seq., benefits case. At issue was whether Sun Life was entitled to offset from appellant's employer-provided long-term disability benefits the amount that appellant received in Department of Veterans Affairs (VA) benefits each month. The court held that VA benefits, for a wartime service-related disability, as a matter of statutory construction, did not derive from an act that was "similar to" the SSA or RRA, which were both federal insurance programs based upon employment and the amount of an award under their terms depended upon how much had been paid in. Accordingly, the court reversed and remanded to the district court with directions to enter judgment in favor of appellant.

http://j.st/ppi

Montana Consumer Counsel v. FERC; Upper Peninsula Power Co., et al. v. FERC; Public Citizen, Inc., et al. v. FERC

Court: U.S. 9th Circuit Court of Appeals

Docket: 08-71827, 08-74439, 08-74443

October 13, 2011

Judge: Gould

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Utilities Law

This case stemmed from FERC's statutory mandate set out in the Federal Power Act (FPA), 16 U.S.C. 824-824w, to ensure that all rates and charges made, demanded, or received by power wholesalers were just and reasonable. Petitioners subsequently sought review of FERC's final order (Order 697), contending that the order violated FERC's governing statutes. In Order 697, FERC codified the existing limited market-based policy, along with multiple enhancements, in a final rule. At issue was whether the market-based regulatory policy established by FERC's order was permissible under the law. Taking into account Chevron deference, the law of the circuit, other relevant precedent, and the direction of the Supreme Court as to how the court should approach such administrative law issues concerning federal agencies, the court concluded that Order 697 did not per se violate the FPA.

http://j.st/pmT

Russell Country Sportsmen, et al. v. U.S. Forestry Service, et al.; Great Falls Snowmobile Club, et al. v. U.S. Forestry Services, et al.

Court: U.S. 9th Circuit Court of Appeals

Docket: 10-35623, 10-35784

October 12, 2011

Judge: Fisher

Areas of Law: Environmental Law, Government & Administrative Law

This case stemmed from the USFS's issuance of a revised Travel Management Plan governing recreational motorized and nonmotorized use on 1.1 million acres of the Lewis and Clark National Forest, including the Middle Fork Judith Wilderness Study area. At issue was whether the Travel Management Plan violated the Montana Wilderness Study Act of 1977 (Study Act), Pub. L. No. 95-150, section 3(a), 91 Stat 1243, and the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. The court held that nothing in the Study Act, which required the USFS to manage a wilderness study area so as to "maintain" its wilderness character as it existed in 1977, prohibited the USFS from exercising its discretion to enhance the wilderness character of a study area. The court also held that NEPA did not require the USFS to prepare a supplemental draft environmental impact statement (EIS) where, as here, the final decision made only minor changes and was qualitatively within the spectrum of the alternatives discussed in the draft EIS. Accordingly, the court reversed the judgment of the district court.

http://j.st/pQV

United States v. Tukes

Court: U.S. 10th Circuit Court of Appeals

Docket: 11-2019

October 6, 2011

Judge: Gorsuch

Areas of Law: Banking, Constitutional Law, Criminal Law, Government & Administrative Law, Insurance Law

Defendant-Appellant Alan Tukes appealed his federal conviction for bank robbery, arguing that the government’s evidence was insufficient to prove that the bank was insured by the Federal Deposit Insurance Corporation (“FDIC”) at the time of the crime. At trial, a prosecutor asked the bank’s branch manager: “Now, the Compass Bank, is that a bank that is federally insured by the [FDIC]?” She responded: “Yes, it is.” When asked whether the bank “has” any documentation proving its insured status, she replied: “Yes. We have a certificate.” When asked whether the certificate “hangs” in the branch, the manager replied in the affirmative. The district court admitted the certificate, dated November 8, 1993, into evidence. The government offered no additional evidence of the bank’s insured status. At summation, Defendant argued that the government had not proven that the bank was FDIC insured at the time of the robbery. The jury returned a guilty verdict. Viewing the evidence in the light most favorable to the government, the Tenth Circuit concluded "it is clear that a rational juror could have concluded beyond a reasonable doubt that the bank was insured at the time of the robbery." The Court affirmed Defendant's conviction.

http://j.st/pGW

Bond v. Shinseki

Court: U.S. Federal Circuit Court of Appeals

Docket: 10-7096

October 7, 2011

Judge: O'Malley

Areas of Law: Government & Administrative Law, Military Law, Public Benefits

In 1996 petitioner, who had served in the Marine Corps from 1965 to 1968, filed a claim for compensation for post-traumatic stress disorder. The VA Regional Office granted the claim and assigned a disability rating of 30%, effective October 1996. Petitioner requested an increase in the percentage and made multiple submissions before 2000, when the Office increased the rating to 70%, effective July 1999. The Veterans Court affirmed as to the rating, but remanded with instructions for assigning an effective date. On remand, the Board found that a February 1998 submission met the requirements for an informal claim for TDIU and assigned an effective date of February 11, 1998 that was affirmed by the Veterans Court. The Federal Circuit vacated. To comply with the directive of 38 C.F.R. 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, the VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim; the VA failed to make such a determination.

http://j.st/ppQ

Tarvin v. Dishman

Court: Alabama Supreme Court

Docket: 1101315

October 7, 2011

Judge: Stuart

Areas of Law: Education Law, Government & Administrative Law, Injury Law, Labor & Employment Law

The Boaz City Board of Education ("the Board") and its members Alan Perry, Fran Milwee, Roger Adams, Alan Davis, and Tony G. King (collectively "the Board members") petitioned the Supreme Court for a writ of mandamus to direct the circuit court to vacate its order that denied their motion to dismiss claims filed against them by Lisa and Donnie Tarvin and to enter an order dismissing the claims with prejudice. According to the complaint, Leland Dishman, the superintendent for the Board, struck kindergarden teacher Lisa Tarvin with a paddle. Dishman read a statement at a press conference, denying that the incident occurred. The Tarvins sued the Board, the Board members in their official capacities, and Dishman in his individual capacity, alleging claims of assault and/or battery, defamation, libel, and slander and sought monetary damages. The Board and the Board members moved to dismiss the claims against them, arguing that they were immune from suit under the State immunity doctrine. Upon review, the Supreme Court found that the Board and its members demonstrated that under the Alabama Constitution, they had immunity from the claims asserted against them, and "a clear legal right to have the claims… dismissed with prejudice." The Court granted the petition and issued the writ.

http://j.st/pG8

Alaska Exchange Carriers Assn., Inc. v. Regulatory Comm'n of Alaska

Court: Alaska Supreme Court

Docket: S-13528

October 7, 2011

Judge: Christen

Areas of Law: Communications Law, Constitutional Law, Government & Administrative Law

Six weeks after the Regulatory Commission of Alaska approved the 2007 Access Charge Rates long distance telephone companies pay to local telephone companies, an association of local telephone companies realized that five of the rates the Regulatory Commission approved were based upon an erroneous spreadsheet the association included in its rate filings. The association requested that the Regulatory Commission correct the rates. The Regulatory Commission corrected the rates prospectively, but concluded retrospective application was barred by the Supreme Court's case law on retroactive ratemaking. The superior court agreed that retrospective application of the adjusted rates was impermissible, and the association appealed. Upon review, the Supreme Court reaffirmed its decision in "Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc." (prohibiting retroactive ratemaking in "second look" cases), but held that the Regulatory Commission has the authority to implement corrections of some procedural mistakes starting when notice of a mistake is given. The Court remanded to the Regulatory Commission to determine the type of error that occurred in this case and whether the error should be corrected retrospectively.

http://j.st/pGB

Alaska Crude Corp. v. Alaska Dept. of Natural Resources

Court: Alaska Supreme Court

Docket: S-13708

October 7, 2011

Judge: Fabe

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law

Appellant Alaskan Crude Corporation operates an oil and gas unit known as the "Arctic Fortitude Unit." Alaskan Crude’s unit agreement with the Department of Natural Resources set work obligation deadlines that Alaskan Crude was required to meet to continue operating the Unit. In July 2008 the Commissioner found that Alaskan Crude had failed to meet its work obligations, gave notice that Alaskan Crude was in default under its unit agreement, and specified that the Unit would be terminated if Alaskan Crude did not cure the default by a new set of deadlines. Alaskan Crude appealed the Commissioner’s decision to the superior court, arguing that a pending judicial decision in a separate appeal qualified as a force majeure under the unit agreement, preventing Alaskan Crude from meeting its work obligations. It also argued that the Commissioner’s proposed default cure was an improper unilateral amendment of Alaskan Crude’s unit agreement. The superior court affirmed the Commissioner’s findings and decision and Alaskan Crude appealed. Upon review, the Supreme Court concluded that: (1) the pending judicial decision in Alaskan Crude’s separate appeal did not trigger the force majeure clause of the unit agreement; and (2) the Commissioner’s proposed default cure was not a unilateral amendment of Alaskan Crude’s unit agreement. Thus the Court affirmed the decision of the superior court upholding the decision of the Commissioner.

http://j.st/pG6

Lot 04B & Block 83 Townsite v. Fairbanks North Star Borough

Court: Alaska Supreme Court

Docket: S-13654

October 7, 2011

Judge: Winfree

Areas of Law: Government & Administrative Law, Real Estate & Property Law

A property owner appealed a judgment that allowed foreclosure on a borough property tax lien, arguing that the borough’s foreclosure was legally flawed and that the borough’s attorney should have been sanctioned for maintaining the foreclosure against his property. Because the superior court did not err in concluding there were no legal flaws in the foreclosure, and because therefore there was no basis to sanction the borough’s attorney, the Supreme Court affirmed the judgment in all respects.

http://j.st/pGL

Comcast of Little Rock, Inc. v. Bradshaw

Court: Arkansas Supreme Court

Docket: 11-277

October 13, 2011

Judge: Danielson

Areas of Law: Government & Administrative Law, Tax Law

Comcast of Little Rock filed three petitions for review with the Arkansas Public Service Commission, asserting that Comcast's ad valorem tax assessment for the years 2006-08 erroneously included the value of its intangible personal property. The Commission's ALJ dismissed Comcast's petitions. Comcast subsequently filed a complaint for refund of taxes in the county court, asserting that it was entitled to a refund of taxes erroneously assessed against it and arguing that the Commission's tax division improperly included the value of Comcast's intangible personal property when calculating its assessments. The county court concluded that it lacked jurisdiction in the matter and dismissed the claims. The circuit court also dismissed Comcasts's claims. The Supreme Court affirmed, holding (1) the circuit court did not err in concluding that it lacked subject-matter jurisdiction to hear Comcast's challenge to its assessment; and (2) because Comcasts's claim did not challenge the validity of the underlying tax, but rather alleged that the assessment was carried out in an illegal fashion, the suit did not come within Arkasnas's illegal-exaction provision, and therefore, Comcast's avenue of relief for its assessment grievance lay with the Commission.

http://j.st/pmv

Ahn v. Liberty Mut. Fire Ins. Co.

Court: Hawaii Supreme Court

Docket: SCWC-28315, SCWC-28314

October 4, 2011

Judge: McKenna

Areas of Law: Government & Administrative Law, Injury Law, Insurance Law

In two consolidated cases, Liberty Mutual Fire Insurance Company denied personal injury protection (PIP) benefits to Chung Ahn and Kee Kim (collectively, Insureds) for treatments after motor vehicle accidents. Insureds each sought administrative reviews with the Insurance Division of the Department of Commerce and Consumer Affairs (DCCA). The DCCA granted summary judgment to Liberty Mutual based on the holding in Wilson v. AIG Hawaii Insurance Company, which stated that unless an insurer's non-payment of PIP benefits jeopardizes an insured's ability to reach the minimum amount of medical expenses required to file a tort lawsuit, insureds are not real parties in interest allowed to pursue lawsuits seeking payment of PIP benefits to providers. The circuit court reversed, concluding that Act 198 of 2006 had legislatively overruled Wilson. The intermediate court of appeals (ICA) upheld the circuit court. On appeal, the Supreme Court (1) overruled Wilson, holding that insureds are real parties in interest in actions against insurers regarding PIP benefits; and (2) vacated the ICA and circuit court judgments because at the time of judgment, Act 198 of 2006 was not retrospective, and the real party in interest holding of Wilson was still in effect. Remanded.

http://j.st/pgn

Mississippi v. Gunn

Court: Mississippi Supreme Court

Docket: 2010-CA-00719-SCT

October 13, 2011

Judge: Randolph

Areas of Law: Government & Administrative Law, Real Estate & Property Law

The Secretary of State of Mississippi (State) and the City of Ocean Springs (Ocean Springs) appealed a chancery court's decision that enjoined the construction of a sidewalk. The sidewalk would have run along a beach adjacent to the seawall on property claimed by Respondents Clyde Gunn, III and Neil Harris in Ocean Springs. The issue before the Supreme Court was whether the chancellor erred in granting the permanent injunction. The State and Ocean Springs asserted that the chancellor erred in issuing the permanent injunction because: her finding of irreparable injury was not supported by substantial evidence; an adequate remedy at law was available; and she failed to rule on the merits of the underlying dispute regarding ownership of the land where the proposed sidewalk was to be located. Upon review, the Supreme Court found no error in the chancellor’s earlier determination that irreparable injury would result if she did not grant an injunction and that no adequate remedy at law was available. The Court concluded that the chancellor’s order and opinion was in fact a preliminary injunction, incorrectly styled as a permanent injunction: "[i[t is clear from its language that the chancellor sought to protect the interests of all parties until ownership of the property could be determined. We therefore remand this case to the Hinds County Chancery Court, vacate the permanent injunction, and leave the earlier-issued preliminary injunction in place."

http://j.st/psF

Brandt Development Company of New Hampshire, LLC v. City of Somersworth

Court: New Hampshire Supreme Court

Docket: 2010-641

October 12, 2011

Judge: Lynn

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Petitioner Brandt Development Company of New Hampshire, LLC (Brandt) appealed a Superior Court order that upheld a decision of Respondent City of Somersworth’s (City) zoning board of adjustment (ZBA). The ZBA denied its application for a variance. Brandt owned a house and attached barn in the residential multi-family district of the City. In November 1994, Brandt applied for a variance from size and frontage requirements to convert the property, then being used as a duplex, into four dwelling units. The ZBA denied the application after finding that the property failed to satisfy the five criteria for a variance. From 1995 to 1997, Brandt added four bedrooms to the upstairs unit after receiving permits to do so. In December 2009, Brandt again sought to convert the property into a four-unit dwelling, and again applied to the ZBA for a variance from the City’s area, frontage, and setback requirements. The ZBA declined to consider the merits of the variance application on the basis that “circumstances not changed sufficiently to warrant acceptance of the application.” The superior court affirmed the ZBA’s decision in August 2010. Upon review, the Supreme Court found that the legal criteria the ZBA used in making its determination were not "discreet and unrelated criteria, but interrelated concepts that aim to ensure a proper balance between the legitimate aims of municipal planning and the hardship that may sometimes result from a literal enforcement of zoning ordinances." As such, the Court found that the ZBA's denial of Brandt's variance application was not reasonable in light of state law, and it reversed the ZBA's and Superior Court's decisions, and remanded the case for further proceedings.

http://j.st/pdt

Conner v. N.C. Council of State

Court: North Carolina Supreme Court

Docket: 213PA10

October 7, 2011

Judge: Jackson

Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law

Petitioners in this action were inmates who had been sentenced to death by lethal injection. Respondent, North Carolina Council of State, approved the lethal injection protocol after it was submitted to the Council by the Department of Corrections (DOC), an administrative agency. Although Petitioners challenged the constitutionality of the state's method of execution, at issue on appeal was whether the Council's statutorily-mandated approval of the DOC's action was subject to the requirements of the North Carolina APA when the DOC's action was exempt from the APA. The Office of Administrative Hearings (OAH) ALJ recommended that the Council reconsider its approval of the execution protocol. The Council declined to reconsider its approval based upon its conclusion that the OAH did not have jurisdiction to review the issue. The superior court dismissed Petitioners' petition for judicial review. The Supreme Court (1) affirmed the superior court's ruling that the APA does not apply to the Council's approval of the execution protocol, and (2) affirmed the court's ruling, as modified, that Petitioners' rights do not include the right to present evidence to the Council and that the Council's obligations do not include a substantive review of the protocol before it is approved.

http://j.st/pxa

City of Tulsa v. Bank of Oklahoma, N.A.

Court: Oklahoma Supreme Court

Docket: 109449

October 11, 2011

Judge: Combs

Areas of Law: Aviation, Contracts, Government & Administrative Law, Injury Law

The City Council of Tulsa decided to encourage the initiation of new direct nonstop airline service to business centers on the East and West coasts, and voted to approve a Memorandum between the Tulsa Industrial Authority (TIA) and the City which would convey certain real property (Property) for that purpose. The transfer would allow TIA to mortgage the Property to the Bank of Oklahoma (BOK) in support of a non-recourse loan so that TIA could, in turn, make an aggregate loan (Great Plains Loan) to Great Plains Airlines, Inc. (Great Plains). This transfer would allow the Tulsa Airports Improvement Trust (TAIT) to enter into a Support Agreement, pursuant to which TIA, in the event of a default would have the option of selling the Property to TAIT under the direction of the BOK. Upon exercise of such option, the TIA would sell, transfer and convey the property to TAIT to satisfy the outstanding loan balance. Great Plains subsequently defaulted under the terms of the Great Plains Loan, and left a balance owed to the Bank. Ultimately TAIT did not purchase the Property. TIA and the Bank sued TAIT. TAIT alleged the Support Agreement was unlawful and an unenforceable contract because TAIT could not purchase the Great Plains Loan and Property by reason that all of TAIT's funds were airport revenues and such purchases would violate the FAA Revenue Use Policy. To resolve the matter, the parties executed a Settlement Agreement which provided the City would pay BOK. The City and its Mayor asked the trial court to determine that the settlement agreement was a lawful contract executed by the City, and the settlement payment made pursuant to the settlement agreement was a lawful expenditure of public funds. Taxpayers intervened, and asked the trial court to determine that the payment of money to the Bank of Oklahoma pursuant to the settlement agreement was an illegal transfer of public funds made pursuant to an unlawful settlement agreement. In granting the City's motion for summary judgment, the trial court found the settlement agreement was a lawful and the settlement payment was a lawful expenditure of funds. Upon its review, the Supreme Court concluded the settlement was not based on a contract, but rather under the equitable theory of unjust enrichment to the City of Tulsa, and as such, the City had authority to enter into the Settlement Agreement. However, the Court found that the unjust enrichment claim was unviable and the Statute of Limitations would have barred the unjust enrichment claim against the City. The Court remanded the matter back to the District Court to direct the repayment of the settlement funds from BOK back to the City of Tulsa.

http://j.st/pgj

Rich v. Tenn. Bd. of Med. Exam'rs

Court: Tennessee Supreme Court

Docket: M2009-00813-SC-R11-CD

October 10, 2011

Judge: Lee

Areas of Law: Government & Administrative Law, Health Law, Professional Malpractice & Ethics

The Tennessee Board of Medical Examiners suspended Dr. Joseph Rich's medical license for one year and imposed other conditions after finding that, among other things, the physician had violated Tenn. Code Ann. 63-6-214(b)(1)(4) and (12). The chancery court affirmed the Board's judgment. The court of appeals reversed because the Board failed to articulate the applicable standard of care in its deliberations. The Supreme Court (1) held that the Board was required by Tenn. Code Ann. 63-6-214(g) to articulate the applicable standard of care in its deliberations; (2) vacated the ruling of the trial court to the extent that it affirmed the Board's decision that Rich had violated sections 63-6-214(b)(1)(4) and (12); (3) vacated the judgment of the court of appeals to the extent it reversed the Board's findings that Rich violated sections 63-6-214(b)(1)(4) and (12); and (4) rather than reversing the Board's findings of violations, remanded the matter to the Board with instructions to conduct deliberations based on the existing record and articulate the applicable standard of care as required by the statute. 

http://j.st/pg2

Neither GML §207-c nor a statutory equivalents distinguishes between categories of mental illness or disability for the purposes of eligibility for benefits

Neither GML §207-c nor a statutory equivalents distinguishes between categories of mental illness or disability for the purposes of eligibility for benefits

Matter of Wydra v City of Rochester, 2011 NY Slip Op 06780, Appellate Division, Fourth Department

In this action the Appellate Division held that standards applicable in determining an individual’s eligibility for §207-c benefits were equally applicable in a local law, rule or regulation providing similar benefits.

§8-A-6 of the City of Rochester’s Charter set out a “the local equivalent of General Municipal Law § 207-c.” When Petra Wydra, a City of Rochester police officer, challenged the City’s discontinuing its payment to her pursuant §8A-6 of the Charter terminating her employment as a police officer the Appellate Division concluded that Wydra’s petition should be granted.

The court said that §8A-6 of the Charter “provides in relevant part that the Chief of Police, on behalf of the City, shall compensate any member of the Police Department ‘who is injured in the performance of his or her duties or who is taken sick as a result of the performance of his or her duties . . . .’ [and] The parties agree that the section of the Charter in question is the local equivalent of General Municipal Law § 207-c.”

Although an arbitrator found that Wydra's disability is unrelated to her job duties and that she therefore is not entitled to benefits, the Appellate Division disagreed, finding that the arbitrator’s ruling was not supported by substantial evidence in the record.

Essentially the arbitrator found that Wydra suffered from depression and anxiety, and that she was unable to work as a result of those conditions. Thus, said the Appellate Division, the dispositive issue is whether there is a "direct causal relationship between [Wydra's] job duties and the resulting illness or injury."

The decision notes the following guidelines to used in determining if there is, in fact, a “direct causal relationship:”

Neither §207-c nor the City’s Charter section, “require that [employees] additionally demonstrate that their disability is related in a substantial degree to their job duties."

§207-c, and be inference, the City’s Charter, merely requires "a qualified petitioner . . . [to] prove a direct causal relationship between job duties and the resulting illness or injury.” Further, a preexisting non-work-related conditions does not bar recovery under §207-c where the individual demonstrates that the job duties were a direct cause of his or her disability.

The court noted that “even the City's expert witness, who evaluated [Wydra] several times, agreed that she suffered from depression and anxiety and that her condition "is certainly related to the job." Significantly, the Appellate Division said that “[t]he fact that the City's expert testified that Wydra had not suffered from posttraumatic stress disorder (PTSD) is of no moment, inasmuch as General Municipal Law §207-c does not distinguish between categories of mental illness or disability.”

The Appellate Division also annulled the arbitrator's determination that Rochester could lawfully terminated Wydra’s employment as the sole basis for the termination, as stated in a letter to Wydra from Rochester’s Chief of Police, was that she was "continuously absent for more than one (1) year due to a non-work related disability."

The court explained that “[i]nasmuch as we have concluded above that [Wydra] is entitled to benefits under the Charter because her disability is work-related, it necessarily follows that the termination was improper.

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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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Employee found guilty of being AWOL when he absented himself from work notwithstanding disapproval of his request for a leave without pay to take a family vacation

Employee found guilty of being AWOL when he absented himself from work notwithstanding disapproval of his request for a leave without pay to take a family vacation

OATH Index No. 1997/11

OATH Administrative Law Judge Kevin F. Casey sustained a charge that a highway repairer, K.M., was AWOL for 16 days without obtaining approval for absenting himself from work.

K.M. had assumed that his request for unpaid leave would be granted and he made reservations and paid for family vacation to Nigeria. When his request was denied because he had a poor attendance record and no available leave balance, K.M. decided to go on the trip anyway, presumably because the reservation was “non-refundable”.

In light of K.M.’s “long unblemished work record,” Judge Casey recommended the penalty of a ten-day suspension for the proven AWOL charges.

ALJ Casey, however, dismissed another AWOL charge where the evidence showed that K.M. took emergency leave to drive his wife to the hospital so she could see her seriously ill brother even though his request for the leave was denied. K.M. submitted a note from the hospital upon his return to work about this exceptional life and death situation.

Finally, Judge Casey dismissed “An excessive lateness charge” failed against K.M., finding that the agency did not place him on notice that his lateness would result in discipline. K.M. was late 10 times in 14 months, but four of those latenesses were less than ten minutes each. Thus, Judge Casey ruled that the agency’s failure to comply with the notice provisions in the citywide lateness policy was prejudicial.

The decision is posted on the Internet at: 

http://archive.citylaw.org/oath/11_Cases/11-1997.pdf

Determining the distribution of a divorced pubic employee’s retirement allowance

Determining the distribution of a divorced pubic employee’s retirement allowance

Bodolato v Bodolato, Supreme Court, Judge Mills [subsequent appeal withdrawn, 305 A.D.2d 1124]

An individual's public pension benefit is a "marital asset" under New York State Law. Accordingly, it sometimes becomes necessary to determine the value of the pension and, or, the annuity available to a public employee in the course of a divorce action.

In Bodolato v Bodolato both parties conceded that each was entitled to one-half of the value of New York City police officer Bodolato's pension benefits and deferred annuity. But establishing the value of Bodolato's pension benefits and annuity proved to be another matter.

Mrs. Bodolato contended that she was entitled to one-half of the value of Bodolato's New York City Police Department pension and deferred annuity based on its value as of the date she commenced her action for divorce. Her spouse, in contrast, argued that the value of his pension and annuity should be determined on the basis of the pension's and annuity's "market or present value" at the time of the trial -- now several years later -- in order "to avoid [Mrs. Bodolato getting] a windfall."

In support of her claim, Mrs. Bodolato cited Majauskas v Majauskas 61 NY2d 481. Officer Bodolato, on the other hand, argued that the court's ruling in Burgio v Burgio, 278 AD2d 767, set out proper standard to be applied in this situation.

Justice Mills observed that there was a significant difference between the situation in Burgio and the situation in the Bodolato action for divorce. In Burgio the plaintiff wanted a lump sum payment of pension funds that had not yet vested. Here, in contrast, Bodolato had retired from the NYPD and thus, said the court, his pension and annuity benefits have been determined.

Mrs. Bodolato had commenced her divorce action before her husband had actually retired from the Police Department. Accordingly, Justice Mills ruled that the formula set by the Court of Appeals in Majauskas controlled and thus the value of the pension and the annuity to which Mrs. Bodolato was entitled should be determined:

1. As of the date of the commencement of the divorce action by Mrs. Bodolato; and

2. In accordance with the following "Majauskas formula."

The "percentage [of Bodolato's retirement and annuity allowance] to be derived by dividing the number of months the parties were married before the commencement of the action [divided] by the total number of months of credit [Bodolato] will have earned toward his pension as of the date of [his] retirement."

If nothing else, the Bodolato decision demonstrates the complex issues that the parties may experience in attempting to establish the value of an individual's retirement benefit in order to determine the "marital distribution" of the benefit in a divorce proceeding. If the marital distribution determination involves an individual entitled to a "vested retirement allowance" -- i.e., the individual has not actually retired but is entitled to "pension and annuity benefits" upon retirement -- there may be even more complex issues to address and resolve.

Duty of fair representation

Duty of fair representation
Bruns and Council 82, 35 PERB 2023

Unit member's dissatisfaction with his or her representation by the union in a grievance that resulted in a negotiated settlement rather than proceeding to arbitration, did not, without more, establish a prima facie case that the union breached its duty of fair representation as a member's "disagreement with the tactics utilized or his or her dissatisfaction with the quality and extent of representation" does not constitute a breach of the union's duty of fair representation. 

Union did not violate its duty of fair representation when union representative recommended that employer file disciplinary action

Union did not violate its duty of fair representation when union representative recommended that employer file disciplinary action
Mtr. of Donaldson and the UFT, et al., PERB case U-24893

PERB affirmed the decision of the ALJ dismissing the charge that UFT violated §209-a.2(c) of the Act when a UFT representative advised a Local Instructional Superintendent to initiate disciplinary charges against Donaldson, a negotiating unit member, and that the District violated §209-a.1(a) when it miscalculated his years of service, failed to approve his line-of-duty injury designation and issued an unsatisfactory performance evaluation.

PERB found that the settlement agreement Donaldson signed that provided for his resignation and the dropping of the Education Law §3020-a charges brought by the District against him waived his right to file a charge alleging that the District miscalculated his years of service. 

Out of title work assignments

Out of title work assignments

Murphy v Herik, NYS Supreme Court [Not selected for publication in the Official Reports]

Out-of-title work usually refers to an employer assigning an individual to perform the duties of the incumbent of different, typically higher level, position. Section 61.2 of the Civil Service Law provides that:

Prohibition against out-of-title work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

Many collective bargaining agreements require that if the employer assigns an individual to perform "out-of-title" work for more than a designated period of time, he or she is to be compensated at the appropriate pay level of the higher position.

Detailing is used to describe a form of assigning an individual to perform "out-of-title" frequently encountered in law enforcement organizations. Its most common manifestation: assigning a police patrol officer to perform the duties of a detective or investigator. Officers detailed to perform the duties of a detective or an investigator typically are not permanently appointed to the position. Section 58.4.c(ii) of the Civil Service Law was enacted to address this practice and provides that:

In any jurisdiction, other than a city with a population of one million or more, which does not administer examinations for designation to detective or investigator, any person who has received permanent appointment to the position of police officer or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation.

By its terms, Section 58.4.c(11) does not cover New York City police officers. However, Section 14-103(b)(2) of the City's Administrative Code tracks Section 58.4.c[ii] and provides that a "permanent police officer who temporarily perform the functions of what is otherwise considered to be detective work for periods of 18 months or more are to be appointed as detectives and be compensated as such."

Michael Murphy, a New York City police officer, was assigned to the Harbor Unit, Vessel Theft Team. His duties included the investigation of stolen marine equipment; returning stolen property to its rightful owner and maintaining a working relationship with insurance companies for the purpose of identifying insurance fraud. After he had been performing these duties for over three years, Murphy's commanding officer, John Cassidy, recommended that Murphy be appointed to third-grade detective. Cassidy's justification for his recommendation: Murphy's primary responsibilities were those of a detective.

The Department rejected Cassidy's recommendation and Murphy filed a grievance challenging its decision. The Department denied Murphy's grievance and he commenced an Article 78 proceeding in March of 2001 seeking a court order directing his appointment as a detective.

The Department asked the court to dismiss Murphy's petition. It contended that its rejecting Murphy's appointment as a detective was justified because the Harbor Unit was specifically excluded from the career-path for detective by a lawful Department policy. Accordingly, the Department argued, Murphy can not be deemed to have been performing detective work as part of the Harbor Unit and therefore he was not eligible for appointment as a detective pursuant to Section 14-103(b) (2) of the Code.

The Department also contended that Murphy was aware of the fact that the Harbor Unit was not on the career path for detective when he accepted the assignment.

Murphy, on the other hand, contended that he was eligible for appointment as a detective pursuant to the Code, citing Ryff v Safir, 264 AD2d 349, as authority for this claim. In Ryff, the Appellate Division ruled that the fact that the Harbor Unit was not included in the Department's career-path for detective did not exempt it from the provisions of Administrative Code Section 14-103(b)(2).

Supreme Court Justice was to prevent the department rejected the Department's argument that appointment as a detective does not depend on the actual work performed but rather on whether or not the position is on the career path for detective. Justice Madden said that the legislative intent in both Section 58.4 of the Civil Service Law and Section 14-103(b)(2) of the City's Administrative Code "was to prevent the department, for budgetary reasons, from using non-detective track officers in detective track positions, while denying the officers the benefit of those positions."

In effect, the court decided that the Department's justification for its action placed form over substance. As Murphy's duties were substantially similar to that of detective, Justice Madden ruled that Murphy was entitled to appointment as a detective pursuant to Section 14-103(b)(2). Justice Madden pointed out that there was no dispute concerning Murphy's performing criminal investigative duties, noting that Murphy was awarded "Investigator of the Year" from the International Association of Marine Investigators.

Deciding that Department's ruling that Murphy was precluded from being appointed as detective simply because his position was not included in its designated "career path" for detectives was arbitrary and capricious, Justice Madden granted Murphy's petition and, in addition, ruled that Murphy was entitled to compensation as a detective beginning 18 months subsequent to his original appointment to the Harbor Unit.

The lesson of the Murphy decision is that employees may not be required to perform out-of-title duties except in cases involving a temporary emergency. If they are assigned, or permitted, to perform out-of-title duties when there is no temporary emergency, the employer may be held liable to pay any resulting salary differential.

One of the administrative procedures available to an individual who believes that he or she is being to required to perform higher level "out-of-title" work is to request that his or her position be reclassified to the higher level title -- i.e., a position allocated to a higher salary grade.

This is usually accomplished by filing a request for reclassification of the position with the responsible civil service commission or department.

The employer, also, may initiate a request for reclassification of a position. In some cases, the employer and the employee may file a "joint" application to have the position reclassified. Concerning a related point, classification and reclassification of a position focuses on the duties of a position while allocation or reallocation of a position is concerned with placing the position in the proper pay grade or setting its appropriate salary rate.

However, approval of an "out-of-title" reclassification application does not mean the individual has the right to be continued in the reclassified title. If a position in the competitive class is reclassified, the individual will have to qualify for permanent appointment to the new title by examination, despite the fact that he or she had been "performing the duties of the higher level position" and was instrumental in having it reclassified. The same applies with respect to qualifying for appointment to a higher level position in the noncompetitive class following reclassification of the lower level position.

In some instances this could result in the individual's being "reclassified out of his or her job." Some modest protections, however, may be available to the individual whose position has been reclassified to avoid this result, at least temporarily. For example, insofar as "employees of the State" are concerned, the State Civil Service Commission's Rules, [4 NYCRR 4.1(d) provide that:

A promotion eligible list shall not be certified for filling a permanent vacancy created by upward reclassification of a permanently encumbered position where promotion from such list would require the layoff of a permanent employee or the reassignment of a permanent employee to a different geographical location; but this provision shall not apply if the incumbent whose position was reclassified has, following such reclassification, twice failed to qualify for promotion to the reclassified position.

4 NYCRR 4.1(e) which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides similar protections with respect to the certification and use of an open competitive eligible list.

Many municipal civil service commissions have adopted similar rules.*

In another New York City Police Department [NYPD] "service as a detective" case, Finelli v Bratton, 298 A.D.2d 197, the issue was whether it was arbitrary and capricious for NYPD to determine that service by former Transit Authority [TAPD] police officer Nicholas G. Finelli did not qualify as "detective track" service.

According to the decision, such credit was properly denied since it was not established that Finelli performed investigative duties comparable to those performed in units given a detective track status after the TAPD's merger with the NYPD. In addition, the court said that detective track credit was properly refused for periods during which police officers were suspended from duty or on restricted, limited or modified duty.
 

* The Rules of the State Civil Service Commission specifically provide that "[e]xcept as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service” [4 NYCR 1.1]. However, rules adopted by a local commission or personnel officer are subject to the approval of the State Civil Service Commission [see generally Civil Service Law §20].

Political activities and public employment

Political activities and public employment

Davis v City of New York, USDC, SDNY, Judge Scheindlin

Election years often produce cases involving a public employee in the classified service seeking election to political office and the impact of federal and state law upon such efforts. Often the issue concerns the individual's right to continue as an employee while campaigning for such office. In the Davis case, the court also considered the liability of the employer that violates an individual's rights in such a situation.

One election-related statute is the federal Hatch Act [5 USC 1501]. The Hatch Act attempts to insulate the civil service from the influence of partisan politics. The Act requires, among other things, that state and municipal employees responsible for administering federal funds abstain from participating in partisan political activities, including running for office in a partisan election.

How is a partisan election defined? An election is partisan where the candidate is running as a representative of a political party whose presidential candidate received electoral votes at the preceding presidential election.

The Davis case involved a number of state and federal issues concerning a public employee running for elective office.

James Davis, a New York City police officer was on the 1998 Liberal Party "petition slate" for the upcoming November election. He "conducted a minimal campaign." On November 3, 1998, his name was listed on the election ballot as the Liberal Party's nominee for Member of the State Assembly. The next day the Department dismissed him, stating that it had terminated Davis "for violating a law that prohibits police officers from accepting a political party's nomination without resigning their commission." citing Chapter 49, Section 1129 of the New York City Charter.*

Significantly, the Police Department did not cite the Hatch Act in its defense, presumably because Davis was not involved in the administration of federal funds.

In another case involving the Hatch Act, the individual seeking elective office was a postal worker. In Merle v United States, USDC DNJ, Civ. 02-3469, a federal district court judge upheld the Act's prohibition on federal workers continuing in service while running for elective officer. US District Court Judge Joseph Irenas ruled that the Hatch Act did "not prevent ... participation as a candidate ... but instead constitutes a valid attempt on the part of Congress to insulate public employees from partisan political influence."

Judge Irenas held that the Hatch Act did not require Merle to quit his job to appear on the ballot but merely forces him to choose between his job and elective office. According to the ruling, the individual "need not even resign from his position in order to appear on the ballot, as the burden is upon the government to respond to his candidacy with a sanction for removal or suspension."

In Davis' case, the New York City Police Department "responded to his candidacy" by removing him from his position pursuant to the mandates of the City's Charter.

Davis subsequently asked to be reinstated to his former position because, as it turned out, he was never actually a bona fide nominee for elective office. Why not" Because he had not filed the required certificate accepting the nomination.

The Board of Elections confirmed this fact by writing the Department that it had included Davis' name on the ballot in error. Still the Department refused to reinstate Davis and he sued. About a year later New York State Supreme Court Justice Barbara R. Kapnick ruled that Davis had not violated Section 1129 and "ordered that the Police Department reinstate Davis as a police office forthwith with back pay."

Davis, however, continued to press his federal civil rights law suit, claiming that the Department's initial refusal to reinstate him was a violation of his rights under 42 USC 1983 and, in addition, had retaliated against him by refusing to reinstate him when it learned of his "non-candidacy" in violation of 42 USC 1983 because:

1. He had challenged the Democratic incumbent, Clarence Norman, in a primary election the summer of 1998;

2. He had criticizing the Police Department for police brutality over the years; and

3. He had spoke out on issues of public concern.

Although Davis won a $100,000 jury verdict for damages, Federal District Court Judge Scheindlin set it aside. Judge Scheindlin said that although Davis showed that his constitutional rights were, indeed, violated, he did not prove the second element required for him to prevail: that the unconstitutional act was the result of a "policy" or "custom" of retaliation in the agency.

Judge Scheindlin explained that "municipalities such as the City of New York may only be held liable when the city itself deprives an individual of a constitutional right." Thus, ruled the court, in order for an individual deprived of a constitutional right to have recourse against a municipality under 42 USC 1983, he or she must show that he or she was harmed by a municipal "policy" or "custom," citing Monell v New York City Department of Social Services, 436 US 658. Judge Scheindlin also noted that "[a] municipality may not be held vicariously liable under Section 1983 on the basis of its employer-employee relationship with the employee" because "a municipality may not be held liable on a theory of respondeat superior."

* Section 1129 provides that "Any ... member of the police force ... who shall during his or her term of office be nominated for any office elective by the people ... and shall not, within ten days succeeding same, decline the said nomination, shall be deemed thereby to have resigned his or her commission and to have vacated his or her office

PERB rejects improper practice charge filed by a non-public employee

PERB rejects improper practice charge filed by a non-public employee

Nagy and SUNY at Buffalo, 35 PERB 3025.

PERB declined to assume jurisdiction to consider an individual's improper practice charge alleging the employer violated Sections 209-a.1(a) and 209-a.1(c) of the Civil Service Law because the individual was not a public employee within the meaning of the Taylor Law, observing that the individual was not on a state payroll and had neither paid union dues nor paid an agency fee to the collective bargaining unit's representative. Nagy and SUNY at Buffalo, 35 PERB 3025.

Similarly, in Arce and NYC Board of Education, 35 PERB 4576, a PERB Administrative Law Judge determined that SEIU Local 74 did not violate its duty of fair representation by failing to process a grievance filed by an individual independently hired by, and who worked directly for, a public school custodian because the individual was not a public employee as defined by the Taylor Law and thus he was not in the negotiating unit.

Challenging the employer’s discontinuing §207-c General Municipal Law benefits

Challenging the employer’s discontinuing §207-c General Municipal Law benefits

Matter of Zembiec v County of Monroe, 2011 NY Slip Op 06757, Appellate Division, Fourth Department

Thomas C. Zembiec asked Supreme Court to annul the Monroe County Sheriff's Department decision to discontinue his General Municipal Law §207-c for the period from August 12, 2008 through June 15, 2009 after if it determined he was not entitled to such disability benefits. In addition, Zembiec challenged the Department’s suspending his regular salary from June 15, 2009 through March 25, 2010. The Department argued that Zembiec was not entitled to such payments because he failed to report for his light duty assignment when directed to do so.

The Appellate Division summarized the benefits provided by General Municipal Law §207-c to law enforcement personnel injured in the performance of their official duties as follows: Such personnel injured in the performance of his or her duties or who has become ill as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment is entitled to specified benefits. The statute does not require that a qualified employee demonstrate that his or her disability "is related in a substantial degree" to the employee's job duties and the individual need only prove a direct causal relationship between job duties and the resulting illness or injury to qualify for such benefits.

The Court held that Supreme Court “properly concluded that the denial of [§207-c] benefits for the period from August 12, 2008 to June 15, 2009 was arbitrary and capricious” as Zembiec had established “the requisite direct causal relationship between his job duties and his resulting illness ….”

On June 15, 2009 Zembiec, however, failed to report for a modified duty assignment. As §207-c(3) provides for termination of benefits upon an employee's refusal to return to work to perform a light duty assignment "consistent with his status as [an officer]," the Appellate Division ruled that Supreme Court was incorrect in granting that portion of Zembiec’s petition seeking his “regular pay” for the period June 15, 2009 through March 25, 2010, finding that Zembiec did not have any right to his regular pay after he failed to report to work to perform his light duty assignment.

The Appellate Division contrasted an individual’s right to §207-c payments in cases where the individual “avails himself [or herself] of due process protections by challenging the medical examiner's determination [that he or she is qualified for light duty or is qualified to resume his or her regular assignments] as such a challenge cannot be equated with a refusal to return to duty" to a refusal to report to work, either light duty or regular duty, after he or she is unsuccessful in challenging the medical examiner’s determination.

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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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Practice and Procedure before the New York City Office of Administrative Tribunals and Hearings

Practice and Procedure before the New York City Office of Administrative Tribunals and Hearings 

OATH Index No. 2526/11; OATH Index No. 2047/11

Pre-trial motions to dismiss are disfavored in practice at OATH and have only been granted in the clearest cases of failure by petitioner to state a viable claim. The burden is particularly high in employee disciplinary proceedings where the OATH Administrative Law Judge makes recommended findings that are submitted to the referring agency for final action. ALJ Alessandra F. Zorgniotti denied in part without prejudice an employee’s pre-trial motion to dismiss disciplinary charges as pre-mature where the employee stated in her reply papers that there were issues of fact to be determined at trial. The motion was also denied in part based on a finding that OATH has jurisdiction to hear a disciplinary case referred by the Department of Correction. In addition, the ALJ granted in part and denied in part without prejudice a request for subpoenas for witnesses, some of whom would provide cumulative and irrelevant testimony [see Dep’t of Correction v. LaSonde (in PDF), OATH Index No. 2526/11]. 

Similarly, OATH ALJ Faye Lewis denied a pre-trial motion to dismiss disciplinary charges brought against a marine engineer on the ground that the charging agency failed to comply with its own rule requiring a disciplinary complaint to be accompanied by a sworn statement from the complainant. Pleadings are liberally construed in administrative practice. Technical defects in pleading are deemed harmless absent a showing of prejudice, which was not made out here. Further, respondent’s objection was untimely as it was not made until more than a year after he received the charges. ALJ Lewis also denied respondent’s motion to stay his disciplinary hearing indefinitely until a federal suit he filed against the charging agency is decided [see Fire Dep’t v. Domini (in PDF), OATH Index No. 2047/11].

Rejecting a hearing officer’s findings

Rejecting a hearing officer’s findings

Perfetto v Erie Co. Water Auth., 298 A.D.2d 932.

It is well settled that an appointing authority may reject a Civil Service Law Section 75 hearing officer's finding of fact and penalty recommendation provided that the appointing authority's determination is supported by substantial evidence in the record and that the penalty imposed does not "shock one's sense of fairness."

The Perfetto case demonstrates how important it is for the appointing authority to specify the reasons for its rejection of all or a portion of the hearing officer's findings and recommendation.

Louis Perfetto, an employee of the Erie County Water Authority, was charged with three acts of misconduct, all related to absences from work. The first two charges concerned an absence in November of 2000 and Perfetto's alleged failure to provide proper documentation regarding that absence. Because the parties had entered into this settlement agreement concerning the first two charges in December 2000, the Hearing Officer ruled that this settlement precluded considering these two charges in the then current disciplinary action.

The third charge related to Perfetto's alleged misuse of sick time on March 27, 2001. While Perfetto claimed he was sick on March 27, there was evidence in the record establishing that Perfetto had left his home that morning to have a document notarized. The Hearing Officer concluded that the fact that Perfetto left his home on that date did not, in and of itself, "belie [his] claim that he was sick."

The appointing authority, however, rejected the Hearing Officer's findings of fact and recommendation. Although the appointing authority stated that Perfetto's testimony was "disproved by independent sources" in its decision, it failed to cite anything in the record to support this determination.

Insofar as the first two charges were concerned, the Court agreed with the hearing officer, concluding that any consideration of those charges by the appointing authority constituted an error of law because of a binding settlement had previously been reached regarding the acts underlying the charges.

As to the third charge, the court concluded that the employer's determination was arbitrary and capricious to the extent that the appointing authority failed to set forth any findings of fact supported by substantial evidence in the record to bolster its conclusion. Perfetto was awarded his job back, along with lost wages and benefits.

Substantial evidence is not a difficult burden to meet. The Appellate Division has defined substantial evidence as enough evidence that a” reasonable mind may accept as adequate to support a conclusion."

This definition of substantial evidence allows for different conclusions based on the same evidence, as long as a reasonable person could arrive at same conclusion that the finder of fact did.

Nevertheless, it is vital that in any final decision, whether it is in agreement with the hearing officer's findings of fact or not, that the appointing authority spell out its reasoning and in the event it rejects any or all of the hearing officer's findings, that specific reasons for the rejection be given and that such reasons be supported by substantial evidence in the record. To do otherwise, as the Perfetto case demonstrates, could be fatal to the appointing authority's determination.

In contrast, the individual's entire personnel record, including past disciplinary actions that "were settled" may be considered by the hearing officer in the context of a disciplinary action for the purpose of setting an appropriate penalty provided the individual is advised that his or her personnel records will be so considered and is given an opportunity to rebut any information in that file.

Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

 Mack v The Port Authority of New York and New Jersey, USDC, SDNY, Judge Swan

One of the issues considered by Judge Swan in the Mack case was Michael Mack's allegation that he was subjected to disparate treatment in violation of Title VII because he was an African-American. Mack alleged that he was required to submit to an involuntary random test for illegal drugs because of his color. Mack also claimed that after he submitted to a random drug test and tested positive for cocaine, the Authority told him that he would be terminated.

According to the decision, Mack was employed as a truck driver by the Authority and was required to posses a valid commercial driver's license in order to perform the duties of his position. Authority employees such as Mack are required to submit to random drug tests under the federal Omnibus Transportation Testing Act of 1991.

On July 6, 1996, Mack was tested for drugs and tested positive for cocaine. Mack and the Authority settled the matter by entering into an agreement that required Mack to submit to random drug testing for a period of sixty months and to enter a drug rehabilitation program. The agreement also provided that if Mack tested positive again, he would be subject to "administrative action."

When Mack again tested positive for cocaine on November 10, 1997, the Authority told him that his employment would be terminated effective November 17, 1997, because of the positive drug test.

Mack's union negotiated a second "disciplinary waiver agreement" and Mack agreed that he would be subject to random drug testing for sixty months and that he would cooperate with the Port Authority's Office of Medical Services. The agreement also stated that Mack's failure to comply with these obligations could result in his termination and that one positive test result would result in his termination.

On May 6, 1998, Mack was asked to submit a urine sample to the Medical Services nurse. When the sample provided proved "unusable," he was asked to supply a second sample. Mack refused to do so and, as a result of this refusal, he was terminated.

Judge Swan granted the Authority's motion to dismiss the complaint, commenting that Mack failed to allege facts sufficient for the court to find that it was the custom or practice of the Port Authority to treat him or other non-white employees differently from non-black employees when imposing sanctions for failure to pass a urine test for illegal drugs.

According to the ruling, Mack presented only conclusory allegations that "race was the determining factor in [his] termination" and thus failed to establish a prima facie case of "wrongful termination."

Arbitrator’s award entitled to great weight by is not preclusive

Arbitrator’s award entitled to great weight by is not preclusive

Pender v District Council 37, AFSCM, USDC, SDNY, 2002 WL 31164470

Among the issues considered by Federal District Court Judge Chin in the Pender case was the amount of weight to be given to an arbitration award by the court in a lawsuit involving essentially the same complaint and the same parties that were earlier considered by an arbitrator.

Judge Chin's conclusion: the arbitrator's decision "is but one piece of evidence -- albeit an important piece ... entitled to great weight -- to be considered in the context of the entire record."

Patricia A. Pender complained that her former employer, District Council 37 of the American Federation of State, County and Municipal Employees [DC-37], violated the Americans with Disabilities Act and New York States Human Rights Law when it fired her because of her disability. She filed a grievance protesting her dismissal and ultimately the matter was submitted to arbitration.

While the grievance arbitration proceeding was pending, Pender filed a charge of discrimination with the Equal Employment Opportunity Commission against DC-37, alleging that DC-37 had unlawfully discrimination against her because of her disability. Pender received a right-to-sue letter from the EEOC on April 25, 2000. By this time, the arbitrator had issued her award, rejecting Pender's grievance. DC-37 asked Judge Chin to dismiss Pender's complaint, contending that the arbitration award was preclusive and thus there was nothing left for the court to determine.

Judge Chin ruled that in this situation the arbitrator's decision was entitled to great weight, but not preclusive weight. She found that Bonnie Siber Weinstock, "an experienced labor arbitrator, conducted the grievance arbitration, at which the both Pender and DC-37 presented documentary and testimonial evidence and examined and cross-examined witnesses under oath."

Weinstock, said the court, issued a 23-page opinion and award, rejecting Pender's grievance and finding that DC-37 did not violate the collective bargaining agreement when it terminated Pender's employment because she was unable to perform the duties and responsibilities of a DC-37 Council Representative, even with reasonable accommodations. Noting that the arbitrator had specifically addressed Pender's ADA claim "on the merits" and had assumed that Pender had a "disability" within the meaning of the ADA.

In making her decision, Judge Chin said that the arbitrator concluded that Pender "was unable to perform the essential functions of a Council Representative with or without an accommodation."

Why was the arbitrator's decision entitled to great weight? Because, said the court, the issue before the arbitrator was largely one of fact, well suited for resolution in the traditional labor arbitral format -- whether Pender could perform the essential functions of the Council Representative position -- and the arbitrator gave full consideration to Pender's ADA claim.

As Weinstock's decision was entitled to great weight and since "no jury could reasonably conclude, on the basis of the record before the Court that Pender's rights under the ADA and New York law were violated," Judge Chin dismissed her petition.

In considering DC-37's motion to dismiss Pender's complaint, Judge Chin reviewed the role of arbitration decisions in civil rights litigation in the light of "three leading Supreme Court decisions" addressing this issue: Alexander v Gardner-Denver Co., 415 US 36; Gilmer v Interstate/Johnston Lane Corp., 500 US 20; and Wright v Universal Maritime Service Corp., 525 US 70.

In Gardner-Denver, the Supreme Court ruled that a union employee "does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement."

In Gilmer, the Supreme Court said that mandatory arbitration clauses are enforceable and that an employee could waive his or her right to bring federal statutory claims to court.

In the Wright case, the Supreme Court decided that even assuming a collective bargaining agreement arbitration clause is enforceable to compel arbitration of an employee's statutory discrimination claim, such a clause would only be enforced if it was "particularly clear" that it was intended to cover such claims.

Considering these three rulings, Judge Chin concluded that in this instance the arbitration procedure satisfied the several concerns set out by the Supreme Court. The bottom line: although Weinstock's decision was not entitled to preclusive effect, it was entitled to "great weight." The “weight” issue for the court to determine:

Considering the arbitration award together with all the evidence in the record, would a reasonable jury find for Pender on the issue of discrimination? In Judge Chin's view the answer was no and this finding required the court to dismiss Pender's petition.

Judge Chin commented that the collective bargaining agreement in effect furnished full statutory protections, as it provided that "[t]he employer shall comply with all applicable law in the area of non-discrimination in employment practices" and the "degree of procedural fairness in the arbitral forum was high."

Recreation Specialist terminated after being found guilty of selling an alcoholic beverage to a minor

Recreation Specialist terminated after being found guilty of selling an alcoholic beverage to a minor 

Matter of Emmerling v Town of Richmond, 2011 NY Slip Op 06690, Appellate Division, Fourth Department

Craig J. Emmerling file an Article 78 action in an effort to obtain a court order annulling the Town of Richmond terminating him from his position as a Recreational Specialist.

Emmerling was charged with, and found guilty of, selling an alcoholic beverage to a minor in violation of Penal Law §260.20(2). He contended that the Town’s imposing the penalty of dismissal termination following a Civil Service Law §75 disciplinary hearing constituted an abuse of discretion by the Town.

The Appellate Division disagreed, ruling substantial evidence supports the determination in view of the fact that his duties involved extensive contact with children and that he had been told that he was required to act as a role model for them.

Citing the so-called “Pell Doctrine” [Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that the penalty of termination “is not so disproportionate to the offense, in light of all of the circumstances, as to shock one's sense of fairness.” 

Termination of an individual holding a public office “at-will”

Termination of an individual holding a public office “at-will”

Matter of Scro v Board of Education of Jordan-Elbridge Cent. School Dist., 2011 NY Slip Op 06738, Appellate Division, Fourth Department

Anthony Scro challenged his termination as the school district’s treasurer contending that such action violated his right to due process right. He obtained a court order from Supreme Court, Onondaga County annulling his termination and directing the school district to reinstate him to his former position.

The Appellate Division reversed the lower court “on the law” and dismissed Scro’s petition.

The court said that it agreed with the school district and the New York State School Boards Association, Inc.* that, under Education Law §2130(4), Scro was an at-will employee who was not entitled to pre-termination due process. 

The Appellate Division noted that although Education Law §2130(4) provides in relevant part that "[t]he board of education in every union free school district … shall appoint a district treasurer … who shall hold office during the pleasure of the board," it applies with equal force to central school districts such as the Jordan-Elbridge Central School District.

As Saco held office “during the pleasure of the board," the Board of Education had the right to discontinue his services at any time. Thus, said the Appellate Division, Saco “was the equivalent of an at-will employee” inasmuch as he served at the pleasure of' the Board of Education and was not entitled to “pre-termination due process.”

Focusing on another aspect of the case, the Appellate Division said that it agreed the school district that Saco, having failed to file his oath of office within 30 days of his being given notice of his appointment as required by Public Officers Law §30(1)(h), the office to which he had been appointed “automatically became vacant” and "no hearing on charges was required to dismiss him from office."**

Public Officers Law §30(1)(h), in pertinent part, provides that should an individual appointed to the position refuse or neglect to file his official oath or undertaking, within thirty days after notice of his or her appointment such “office shall be vacant … before the expiration of the term thereof….”

* New York State School Boards Association, Inc. filed an amicus curiae brief in support of the Jordan-Elbridge Cent. School District arguing that Scro served as an at-will employee and thus was not entitled to pre-termination hearing.

**  See, also, Informal Opinions of the Attorney General 84-17 in which the Attorney General indicated that in the event an oath of office required by law is not timely filed, the office “becomes vacant by operation of law.”