Employee must resign “for good cause” to qualify for unemployment insurance benefits

Employee must resign “for good cause” to qualify for unemployment insurance benefits

Quintana v NYC Police Department, 297 A.D.2d 857

New York City probationary police officer Miguel A. Quintana, a Bronx resident, was assigned to attend a training program at the police academy in Manhattan. This required Quintana to commute by subway from his home in the Bronx. Quintana said that because he wore his police uniform while traveling to and from the police academy, he became the target of negative comments and gestures from other commuters because of his employment as a police officer.

Claiming that these comments and gestures, together with the fact that a member of the police academy's faculty had attempted suicide, caused him to realize that a career as a police officer "isn't for me...." Quintana resigned from his position.

When Quintana applied for unemployment insurance benefits, the Unemployment Insurance Appeal Board ruled that he was disqualified from receiving benefits "because he voluntarily left his employment without good cause."

The Appellate Division, Third Department, affirmed the Board's determination, commenting that there was substantial evidence to support the Unemployment Insurance Appeal Board's finding that Quintana was disqualified from receiving unemployment insurance benefits "because the reasons for his resignation were personal and noncompelling."

The court pointed out that although apprehension for one's physical safety may constitute good cause for leaving employment in some instances, the record in this matter does not justify such a conclusion.

In addition, the Appellate Division pointed out that there was no medical evidence supporting Quintana's contention that "job-related stress" compelled him to resign from his position as a probationary police officer.

Due process and dismissal from office

Due process and dismissal from office

Mtr. of Gill, Decisions of the Commissioner of Education, 14,785

The decision by the Commissioner of Education in the Gill case explains the rights of a member of a school board and the procedures to be followed in the event a school board decides to remove one of its members from office.

The Wyandanch Union Free School District Board of Education voted to remove one of its board members, Andrew Gill, from office because of his alleged "official misconduct1."* According to the Commissioner's ruling, to constitute grounds for removal pursuant to Section 1709(18), the "official misconduct" must clearly relate to a board member's performance of official duties, either because of the allegedly unauthorized exercise of the member's powers or the board member’s intentional failure to exercise those powers to the detriment of the school district

Among the charges filed against Gill were the following:

1. Gill disrupted board meetings;

2. Gill falsely stated that the roof of a school building was in danger of falling down in an interview to be aired on television;

3.Gill, while representing that he was acting on behalf of the board, threatened to use physical force and used obscene language against a taxpayer; and

4. Gill asked a parent to bring false charges of sexual misconduct against a district employee.

In the course of the proceedings, Gill and his attorney left the hearing. The board continued the hearing "in absentia," presenting "the remainder of its proof in [Gill's] absence."** Following this, the board deliberated, found Gill guilty of a number of the charges and then voted to remove him for official misconduct. Gill appealed his removal from the Board, contending that he was denied due process.

In his appeal to the Commissioner, Gill argued, among other things, that the board did not respond to his "discovery demands" and otherwise acted to frustrate his right to administrative due process. Addressing this aspect of his appeal, the Commissioner said Gill cited no statutory or constitutional right to formal discovery in a removal proceeding conducted pursuant to Section 1709(18).*** 

In the words of the Commissioner: As long as [Gill] receive adequate notice of the charges, due process is served. 

The board, on the other hand, contented that it had provided Gill with a full and fair hearing consistent with his right to administrative due process and that it had properly removed from office after finding him guilty of official misconduct. The board also argued that Gill could have attempted to refute the charges at the hearing but elected to voluntarily absent himself from the proceeding.

The Commissioner sustained the board decision to remove Gill from office. He said that Section 1709(18) permits the board of education of a union free school district, among other things, "[t]o remove any member of their board for official misconduct."

The individual whom the board seeks to remove must be served with written charges at least ten days before the hearing and the individual must be "allowed a full and fair opportunity to refute such charges before removal." The Commissioner concluded that "[o]n the record before me, I find that [Gill was] afforded sufficient due process to satisfy this standard.

The Commissioner also found that Gill was given "a full and fair opportunity to refute the charges" as well as the opportunity to cross-examine the witnesses, examine the board's documentary evidence, and introduce his own documentary evidence.

In response to Gill's argument that he did not an opportunity to question a number of the witnesses who testified, the Commissioner said that Gill did have such an opportunity but "but voluntarily forfeited it by leaving the hearing under protest." The Commissioner also found that there was nothing in the record to justify Gill's electing to leave the proceeding.

Based on the totality of the circumstances, the Commissioner said that he did not find the board's removal of Gill for official misconduct to be improper and directed the board to appoint a successor trustee to replace petitioner Gill.

Another issue raised by Gill concerned his allegation that the hearing was "improperly conducted in executive session" in violation of the Open Meetings Law. The Commissioner said that the court has exclusive jurisdiction over complaints alleging violations of the Open Meetings Law and thus such complaints may not be adjudicated in an appeal to the Commissioner.

Finally, there was a recusal issue with respect to one of the board member's participation in the hearing and adjudication process involving Burnett. The Commissioner that it was improper for Wyandanch board member Rodney Bordeaux to consider the charges filed against Burnett.

According to the decision, Bordeaux was facing criminal charges of assaulting Burnett at the time of the hearing. 

The pendency of these charges, said the Commissioner, is a sufficient basis for someone to conclude that Bordeaux was likely to have some bias insofar as Burnett was concerned. Accordingly, noted the Commissioner, Bordeaux should have disqualified himself from participating in the determination of the charges filed against Burnett. In effect, the Commissioner cautioned that it is important to avoid even the appearance of bias in such a situation.

* Samuel Burnett, another trustee, was served with similar charges, found guilty of official misconduct and removed from office. On appeal, which was consolidated with the Gill appeal, [Decisions of the Commissioner 14,785] the Commissioner found that although there was proof sufficient to find Burnett guilty of some of the charges filed against him, the Commissioner did not find sufficient proof to establish grounds to justify Burnett's removal from office for "official misconduct." He directed that Burnett be reinstated to his position with the board.

** From time to time an individual may decline to participate in a disciplinary hearing being conducted pursuant to Section 75 of the Civil Service Law or some similar statute. It is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled 

*** Sometimes an individual will demand "a bill of particulars" requiring the appointing authority to set out the charges and specifications filed against the individual in greater detail. Although Education Law Section 3020-a.3c(iii)(C) provides an administrator or teacher with the right to demand a "bill of particulars" concerning the charges and specifications filed against him or her, no similar provision is included in Section 75 of the Civil Service Law. In some instances a Taylor Law agreement will contain a provision allowing the employee to demand a “bill of particulars” in the course of a disciplinary action.

Random search and employee privacy

Random search and employee privacy

US v Gonzales, CA9, 01-30059

May a government employee be required to submit to a random search by his or her employer and under what circumstances? These were the major issues in the Gonzales case. 

In the view the U.S. Circuit Court of Appeals, Ninth Circuit, government employees may be subjected to searches by a government employer, but the court must consider the strength of the employee's reasonable expectation of privacy, the justification for the government employer's search, and the scope of the search as it relates to the justification for the search, in order to determine whether the search is reasonable.

Alexander Gonzales was employed at a "post store" on a federal Air Force base. He was the target of a random search of employees as he left the store when a store detective asked him to let her look in his backpack. The store detective had no individualized suspicion that Mr. Gonzalez was stealing anything.

The store detective found four packages of spark plugs worth $3.75 each in the backpack. Although Gonzales told the store detective that he had purchased the spark plugs elsewhere, he ultimately pleaded guilty to larceny, reserving for appeal the district court's denial of his motion to suppress the evidence found in his backpack on the theory that it was the fruit of an unlawful search conducted in violation of the Fourth Amendment.

The Circuit Court said that, in the context of this case, the following applied:

1. The search was random, not based on individualized suspicion, for the purpose of deterring theft and apprehending employees who stole store items and was conducted pursuant to an established policy of the store.

2. Gonzalez signed or initialed a statement that store employees were subject to random searches when he started work and that he knew such random searches were store policy.

3. Although individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer, government employees' expectations of privacy at the workplace may be "reduced by virtue of actual office practices and procedures."

4. The government employer did not need probable cause to believe that an employee was stealing, but its search had to conform to the test of reasonableness.

Thus, said the court, Gonzalez's "expectation of privacy" was limited by his knowledge of the store's policy of searching its employees' belongings to deter theft and to apprehend thieves.

There are, said the court, still two test that must be satisfied in this type of situation in order to hold that the search was justified at its inception.

The first test applied by the court: Was there a legitimate reason for the search?

In this instance, the court ruled that "Prevention of theft is a legitimate justification for a search. It's hard to run a store if the employees walk out with the inventory."

The second test: Was the "search as actually conducted was reasonably related in scope to the circumstances which justified the interference."

As to this second test, the court said that unless there is evidence that the search went beyond the scope of its justification, there is no basis to conclude that such a search went beyond what was reasonable.

The Circuit Court concluded that an employer is entitled to search an employee for stolen merchandise, even though the search was on a random basis without reasonable suspicion, but only if the individual had clear notice before he or she ever came to work that he or she would be subject to just such a search, and the search did not go beyond the scope appropriate to looking for stolen merchandise.

In contrast, the Circuit Court observed that "[a]n employee on his first day who had not yet signed or learned of the store policy, let alone a customer who neither knew of nor consented to any policy of random searches, might be in a much stronger position to have a reasonable expectation of privacy deserving protection from such searches...." 

Exceptions to dismissal of improper practice charge must be timely served

Exceptions to dismissal of improper practice charge must be timely served
Mtr. of Fern Rudin-Moore and DC-37, PERB Case U-25423

The Board affirmed the Decision of the ALJ dismissing Rudin-Moore's improper practice charge alleging that DC-37 violated §209-a.2(c) of the Act, when a DC-37 representative failed to respond to her inquiries regarding the status of a grievance that she had asked him to file on her behalf. The Board dismissed the exceptions on procedural grounds, finding that they had not been timely served on the other parties. Rudin-Moore filed exceptions with the Board on February 6, 2006, however, her exceptions were never served on either DC-37 or the District.