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

December 01, 2011

No claim for back pay upon reinstatement


No claim for back pay upon reinstatement
Koppman v. Board of Education, 95 A.D.2d 777

If a probationary employee reinstated to his or her former position was not removed from the  position unlawfully “neither the Constitution nor New York State Law recognizes the right of a reinstated probationer to an award of back pay”.

This, in a nutshell was the conclusion of the Appellate Divisions in the Koppman case.

The court’s rationale: “In the absence of a statute requiring the payment of back pay, the public employer is not required to pay back wages as the payment of such compensation without the performance of service would constitute an unconstitutional gift of public funds (Article 8, Section 1, of the State Constitution).”

Town may terminate health insurance coverage for Medicare-eligible retirees

Town may terminate health insurance coverage for Medicare-eligible retirees
Op St Comp 80-105

The State Comptroller has issued an opinion indicating that a town may terminate the health insurance coverage of a retired town employee when the retiree becomes qualified for Medicare coverage benefits.

It appears that the view of the Comptroller is limited to local governments which are not participating in the State’s Employees’ Health Insurance Programs [NYSHIP]. 

Insofar as public employers participating in NYSHIP are concerned, Section 167-a of the Civil Service Law controls with respect to health insurance coverage available to NYSHIP retirees upon their becoming Medicare-eligible. 

With respect to public employers that do not participate in NYSHIP there may be provisions in a collective bargaining agreement that would control the health insurance participation of an entity's retirees upon their becoming Medicare-eligible.






Public official must claim his or her qualified immunity as a defense when sued in federal court


Public official must claim his or her qualified immunity as a defense when sued in federal court
Gomez v. Toledo, 64 L Ed 2d 548

The United States Supreme Court has ruled that a public official sued under 42 USC 1983 (The Civil Rights Act) must claim that the acts alleged to be discriminatory were performed in good faith if he or she seeks qualified immunity as a defense.


November 30, 2011

Duplicative FOIL requests

Duplicative FOIL requests
Badalamenti v Office of Dist. Attorney Nassau County, 2011 NY Slip Op 08588, Appellate Division, Second Department

The Nassau County District Attorney's Office rejected the FOIL request submitted by Anthony Badalamenti seeking the disclosure of certain telephone numbers and recordings of certain telephone calls.

In the proceeding before Supreme Court the District Attorney's Office had established that it had earlier provided Badalamenti with the information or records he sought pursuant to an earlier FOIL request or hat it did not have the records he demanded in its possession.

The Appellate Division held that FOIL does not require the custodian of the public records demanded, here the District Attorney’s Office, to furnish records it does not possess.

The court also ruled that Badalamenti was not entitled to additional copies of those records he sought that had previously be provided to him “unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make.”

Access to documents under FOIL limited

Access to documents under FOIL limited
Sinicropi v. Nassau County, 76 AD2d 832

Sinicropi was denied access to certain records related to an administrative disciplinary proceeding.

Citing the McAulay decision (48 NY2d 659), the court refused to order the employer to give the Sinicropi the records he sought, which records the court described as intra-agency memoranda concerning an employee, notes and communications made in preparation of the disciplinary hearing and the transcript of the hearing.

The court viewed this materials as “pre-decisional intra-agency memoranda that are not reflective of final agency policy or determinations” and are therefore exempt from disclosure under the Freedom of Information Law.

Sinicropi had been given a copy of the charges preferred against an employee, the employee's answer to the charges, the "bill of particulars" of the charges and the stipulation of settlement of the disciplinary action. The Court held that further disclosure would be unnecessary and improper.

Human Rights Appeals Board review powers limited

Human Rights Appeals Board review powers limited
CBS v. State Human Rights Appeals Board, 76 AD2d 813

The Division of Human Rights had dismissed the complaint of discrimination filed by a former employee of CBS for lack of probable cause.

On appeal the Human Rights Appeals Board reversed the Division’s determination after making its own findings as to seniority and other matters concerning the complaint.

The Appellate Division held that in so doing the Appeals Board had exceeded its authority, substituting its own factual findings for that of the Division.

The Board’s function, said the court, is to determine whether the Division’s decision was based on substantial evidence or not.

The Appellate Division then reinstated the Division’s determination, stating that “in reversing [the Division] the Board must have been saying either that there was not substantial evidence or else that the ruling was arbitrary and capricious and an unwarranted exercise of discretion. There was no basis for this determination ... the Division’s expertise in evaluating discrimination claims may not be lightly disregarded.”

Annuities may be processed through one agent


Annuities may be processed through one agent
Op St Comp 80-121

A school district which purchases annuities for its employees from a number of insurance companies may make arrangements to have all payments made to one company and have that company make the distribution to the other insurance companies involved.

Such an arrangement is expected to reduce an employer’s accounting costs that may be significant when it must process a large number of accounts on behalf of its employees. The most common situation is the transmittal of funds in connection with tax-deferred annuities purchased on behalf of employees.

November 29, 2011

Criminal record results in removal from state job


Criminal record results in removal from state job
Disciplinary arbitration award

An arbitrator held that the State acted properly when it removed an employee form his position upon discovery that he had failed to report his earlier conviction on the application form for his job.

The employee had indicated that he had never been convicted when in fact he had been convicted of a number of crimes.

The Civil Service Law (Section 50.4) provides for the removal of an employee found to have falsified his application form. In such cases the law requires that the employee be given an opportunity to explain the matter before being removed from the position.

It appears that the reason for the employee’s removal was the falsification of the information on the application form, not the fact that he had earlier been convicted.

Generally the employee or applicant having a criminal conviction in his record may not be barred from employment unless the offense is found to be job related and has a potential for a breech of faith or a related problem.

For example, conviction for illegal possession of a drug might be a basis for disqualifying a person seeking a position in a pharmacy where controlled substances and drugs are kept but probably would not be relevant in connection with a clerical position in an office.

Inconsistent determinations void discipline finding

Inconsistent determinations void discipline finding
Fogerty v. Connelie, 76 A.D.2d 987

The three member board found the employee not guilty of one charge, but guilty of a number of other charges.

The appointing officer found the employee guilty of all the charges after “acceptance of the board’s findings and conclusions” and imposed the penalty of dismissal.

The Court annulled the determination, holding that “(a) comparison of Connelie’s decision and that of the hearing board establishes that the two determinations are inconsistent in that Connelie, but not the board, found Fogerty guilty of all the specifications in the first charge”.

Also missing from the appointing authority’s decision were the reasons relied upon by Connelie for the dismissal of Fogerty.


Employee denied additional probationary period


Employee denied additional probationary period
In Re Holbrook, 78 A.D.2d 840

The agency terminated the employee for failing to satisfactorily complete his probationary period because “his conduct towards his peers and subordinates engendered hostility, he failed to follow...policy respecting the routing and handling of legal department mail causing unnecessary delays...and he took upon himself the task of reviewing the operations of the legal department...diverting...from the work priorities his superiors had established for him”.

The employee sued and a State Supreme Court judge granting Holbrook petition and directed that the employer extend the individual’s probationary period for 12 weeks.

The Appellate Division overturned the lower court’s ruling, holding that there was a clearly ample rational justification for the termination since “(the employee) in his reply affidavit virtually confirms [the employer’s] observations” concerning his performance of his duties.

The court also rejected the employee’s representation that his dismissal was motivated by his uncovering and reporting his immediate supervisor’s poor management practices. 

November 28, 2011

Tenured teacher’s objection to submitting a challenge to termination to arbitration rejected

Tenured teacher’s objection to submitting a challenge to termination to arbitration rejected
Atwater v. Commissioner of Education, Massachusetts Supreme Court, November 21, 2011, Docket: SJC-10817

A tenured teacher was terminated for conduct unbecoming a teacher.

The teacher appealed contending that Massachusetts law compelling arbitration of a wrongful dismissal claim made by a tenured public school teacher violated Article 30 of the Massachusetts Declaration of Rights because it impermissibly delegated to a private individual (an arbitrator) a judicial function and denied meaningful judicial review.

Massachusetts Supreme Court ruled that submitted a challenge to a principal's or superintendent's dismissal decision to arbitration did not interfere with “core judicial functions” and the statute provided sufficient judicial review.

The decision is posted on the Internet at:


Dismissed employee entitled to back pay


Dismissed employee entitled to back pay
Matter of Rider, 78 A.D.2d 856

The employee was found guilty to the charges brought against him and dismissed under Section 75 of the Civil Service Law. He had been suspended without pay upon the service of the charges and continued in that status until after the hearing and his dismissal. This involved a period of more than the 30 days suspension without pay permitted by Section 75.

The Appellate Division ruled that the employee, notwithstanding the fact that he was terminated from his position, was entitled to back pay for the period beginning 30 days after his suspension until the date of dismissal.

The court noted that this was the correct result “even though there was substantial evidence to support the finding of guilt and the fact that the penalty imposed was not excessive.”

Unblemished record mitigates discipline penalty

Unblemished record mitigates discipline penalty
Matter of Gailband, 78 A.D.2d 853

The New York City Housing Authority, dismissed an employee and stated “in no uncertain terms, its view of the seriousness of the (employee’s) conduct.”

The Appellate Division, however, ruled that “under the totality of the circumstances at bar, including an unblemished record of more than 15 years duration, the penalty of dismissal was grossly disproportionate to the nature of (the employee’s) misconduct so as to be shocking to one’s sense of fairness.

The court then went on to indicate that it would ordinarily remand the case to the agency for appropriate reconsideration, but as the Authority had strongly and unequivocally condemned the conduct, and as any lesser penalty would increase the Authority’s potential liability for back pay, it would fix the penalty to be imposed.

The Appellate Division ordered the reinstatement of the employee with back pay for absence in excess of three months (including the 30 day suspension period imposed by the Authority in accordance with Section 75 of the Civil Service Law) less unemployment benefits, if any, and any amount [the employee] earned while “dismissed”.

Short v. Nassau County Civil Service Commission, 59 AD2d 157 sets forth some guidelines to be followed in cases such as this.

Court voids arbitrator’s award


Court voids arbitrator’s award
Uniformed Firefighters Association v. City of New York, 76 A.D.2d 392, Motion for leave to appeal denied, 52 N.Y.2d 702

The City of New York filed an petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate an arbitrator’s award that held that the City could not implement its plan to use civilian workers in fire prevention inspector titles.

The court held that the City had the authority and responsibility to allocate its financial resources in a manner it felt most appropriate to prevent fires.

The Appellate Division also observed that “the decision to utilize civilians rather the uniformed firefighters to perform inspection functions is consonant...with the City’s agreement with the Uniformed Firefighters Association and proper”.

November 27, 2011

Punitive damages awarded for failure to act to prevent sexual abuse of students

Punitive damages awarded for failure to act to prevent sexual abuse of students G.G. v Grindle, U.S. 7th Circuit Court of Appeals, Docket 10-3506 

The Seventh Circuit Court of Appeals affirmed an award of compensatory and punitive damages based on a jury finding a school administrator failed to prevent the sexual abuse of several female students by their teacher.

The teacher had pled guilty to multiple counts of aggravated kidnapping and aggravated criminal sexual abuse.

The award for damages, said the court, was justified in view of the administrator’s failure to act, noting that the administrator advanced “no basis for invalidating the jury’s determination that her conduct justified the imposition of punitive damages.”

The decision is posted on the Internet at:
http://law.justia.com/cases/federal/appellate-courts/ca7/10-3506/10-3506-2011-11-23-opinion-2011-11-23.html

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