Action for alleged defamation follows disclosure of document pursuant to a FOIL request

Action for alleged defamation follows disclosure of document pursuant to a FOIL request

Gosden v Elmira City School District, 2011 NY Slip Op 08874, Appellate Division, Third Department

One of the lessons of the Gosden case is that although a settlement agreement that provided that the parties would keep its terms “confidential” may be subject to disclosure pursuant to a Freedom of Information [FOIL] request, its subsequent disclosure pursuant to FOIL does not excuse a party breaching other terms and conditions unrelated to such disclosure set out in the agreement.

Robert Gosden, earlier employed as an administrator by the Elmira City School District entered into an agreement with the school district to settle alleged overpayment it had made to him prior to his retirement from service with the district. The settlement agreement stipulated that [1] Gosden disputed “that any overpayment had occurred" and [2] that the settlement agreement would remain “confidential.”

A local newspaper subsequently obtained a copy of the agreement under the Freedom of Information Law (Public Officers Law Article 6) and published articles about it and a Comptroller's Audit report of the school district dated October 2008.

Gosden and his company, Manus Management Consultant Services, Inc., then contracted with the local Board of Cooperative Educational Services to supply certain services to area school districts, including providing financial responsibility training to Board members.

Two Elmira City School District board members, however, were “reported as being insulted and angry that Gosden would be paid to train them about financial responsibility and they were quoted as saying, among other things, that Gosden had admitted to wrongdoing regarding his annual leave payout.”  Soon thereafter the BOCES canceled a contract with Manus Management.

Manus and his company then sued the school district, alleging that it had breached their contract. Supreme Court agreed, awarding Manus and his company the $8,000 that Gosden had paid to settle the potential claims against him “plus an amount to be determined at an inquest based on lost business” suffered by Manus and his company.

The first issue considered by the Appellate Division concerned the alleged breach of contract cause of action.

The court said while the settlement agreement had set out a confidentiality provision, the parties also recognized in the agreement that it might be disclosed for a lawful purpose and they specifically set forth a clause that "permitted comments by the parties in the case of such disclosure." The agreement stipulated that "[a]ll other inquiries about this Settlement Agreement or the matter to which it pertains will be responded to by the [p]arties by stating that the matter has been 'settled to the satisfaction of the parties.'"

The terms of the agreement did, in fact, become public pursuant to a Freedom of Information Law request and the parties did not claim that this disclosure was improper. 

However two board members had been board members when the settlement was negotiated and remained board members at the time of their comments. According to the Appellate Division, their comments, which were reported in a local newspaper in November 2008 and reiterated at a Board meeting, went beyond the scope of the comments to which the parties had agreed. This, said the Appellate Division, constituted a breach of the terms of the agreement by school district.

The full decision, which address other and related issues, is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08874.htm

Failure to follow prescribed treatment ruled misconduct

Failure to follow prescribed treatment ruled misconduct

DeCherro v. Ross, 83 A.D.2d 709

Supervisors frequently are told be an employee that he or she cannot work because of illness. Sometimes this results in the employee being terminated from his or her position.

In DeCherro the Appellate Division upheld a finding by the Unemployment Insurance Appeals Board that the employee “while...suffering from an illness, has made no reasonable effort to pursue a course of treatment...conduct contrary to the best interests of the employer.”

Although there was no doubt that DeCherro was suffering from an illness, his claim for unemployment benefits was denied “because he lost his employment due to misconduct.”

The court explained DeCherro did not show that his illness would interfere with following simple directions or that his work assignments would render him unable to follow routine treatment recommendations.

Employee found guilty of misconduct based on hearsay evidence presented at the disciplinary hearing

Employee found guilty of misconduct based on hearsay evidence presented at the disciplinary hearing

Matter of Matter of Paul v Israel, 2011 NY Slip Op 08947, Appellate Division, Second Department

Josephine Paul challenged the Westchester Medical Center’s decision to terminate her following a Civil Service Law §75 disciplinary hearing in which she was found guilty of misconduct, contending that the hearing officer’s determination was not supported by substantial evidence and was based on hearsay testimony.

The Appellate Division confirmed the appointing officer’s decision and dismissed her petition challenging the penalty imposed “on the merits.”

Finding that there was substantial evidence in the record to support the determination of the Westchester Medical Center that Paul was guilty of misconduct, the court ruled that her argument that the administrative determination is not supported by substantial evidence because the evidence presented was hearsay was without merit.

As to the penalty imposed, termination, the Appellate Division said that dismissal “was not so disproportionate to the offense committed as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Frequently the use of hearsay evidence in a disciplinary hearing is claimed to justify the vacating of an adverse disciplinary decision. In Roldan v Bartton, 203 A.D.2d 368, Roldan argued that the hearing officer had improperly admitted "certain hearsay evidence" in the course of the hearing. The court said that Roldan's contention was "unpersuasive," holding that "it is well settled that hearsay is admissible in administrative hearings and may form the basis of an adverse determination," citing Gray v Adduci, 73 NY2d 741.

The Paul decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08947.htm

Employee must answer questions concerning work if granted “use immunity”

Employee must answer questions concerning work if granted “use immunity”

Tanico v. McGuire, 80 AD2d 297

Two police officers refused to answer questions concerning their performance of official duties following their suspension without pay for alleged official misconduct.

They were subsequently served with disciplinary charges alleged misconduct and later again refused to answer “questions specifically directed and narrowly related to official duties.”

Instead the officers filed an Article 78 petition seeking a court order prohibiting such questioning.

The Appellate Division ruled that “a public employee, if granted ‘use immunity’ may be narrowly and specifically questioned about his official duties and dismissed...if he refuses to answer questions properly put to him.”

Although “use immunity” would prevent the answers being used against the individual in a criminal prosecution, the court indicated “since disciplinary proceedings are not criminal actions, the employee’s statements may be used against him in those proceedings (and) an employee who refuses to answer may be discharged on that basis.”

New York City Police Department Rules authorize interrogation of police officers who are either the subject of or witnesses in an official investigation. It appears that an employee can be compelled to testify against himself in a disciplinary proceeding as “use immunity” would be provided under the 5th Amendment in any subsequent criminal prosecution.

Combining demands may be injurious to your bargaining position

Combining demands may be injurious to your bargaining position

Town of Niagara, Case U-5115

When an item subject to mandatory negotiations was combined with a non-mandatory item, PERB held the entire proposal constituted what it described as a “unitary demand” which became a non-mandatory subject of negotiations because one of its parts was non-mandatory.

PERB, however, rejected the Town’s argument that a demand to continue a number of existing contract provisions (consisting of both mandatory and non-mandatory subjects of negotiations) be considered non-mandatory because some parts were non-mandatory. Here PERB ruled that there was no basis to conclude the several provisions constituted a “unitary demand”.

This suggests that had the Union presented certain of the existing provisions as a “package” demand,” the “package” would not be converted into a non-mandatory subject of negotiations despite the fact that the “package” consisted of both mandatory and non-mandatory subjects of collective bargaining and the employer could not refuse to negotiate the proposal.

Presumably the same rule would apply if the employer were to “package” its demands.

Selected Appellate Division rulings

Selected Appellate Division rulings

     * Dismissal because of repeated lateness or being absent from work without an appropriate excuse is not disproportionate to the offense (Smack v. Dutchess County, 80 AD2d 874.

     * The reassignment of the work of the incumbent of an abolished position among five other (retained) employees, none being assigned more than 50% of the duties of the abolished position, is lawful (Currier v. Tompkins-SenecaTioga BOCES, 80 AD2d 979)

     * Shortcomings as an administrator and unsatisfactory performance as a supervisor are not stigmatic so as to require a name clearing hearing for persons not subject to Section 75 of the Civil Service Law. (Carter v. Roswell Park Memorial Institute 80 AD2d 960)

     * Although the appointing authority was obliged to consider the findings of the Hearing Officer in a Section 75 disciplinary action, it was entitled to overrule them in arriving at the ultimate decision. (Wood v. Maine-Endwell CSD, 80 AD2d 970)

Abolishing positions in the public service

Abolishing positions in the public service
Matter of Matter of DiSanza v Town Bd. of Town of Cortlandt, 2011 NY Slip Op 08941, Appellate Division, Second Department

The Town Cortlandt abolished the position of Environmental Analyst, resulting in the layoff of Richard DiSanza. DiSanza sued, seeking a court order directing his reinstatement with back salary.

The Appellate Division affirmed a Supreme Court’s decision denying DiSanza’s petition.

The court explained that a public employer may, in good faith, abolish positions in the civil service for the purpose of economy or efficiency. In the event the decision is challenged, the challenger has the burden of proving that the employer did not act in good faith in abolishing the position.

As to the mechanics involved, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee otherwise entitled to the benefits set out in Sections 80 and 80-a of the Civil Service Law [Layoff], or any similar law, from his or her position (1976 Opinions of the Attorney General 7).

Further, in CSEA and Burnt Hills-Ballston Lake CSD, 25 PERB 3066, PERB, in response to CSEA's allegation that the school district had unilaterally abolished a position in violation of its duty to bargain, ruled that "notwithstanding the obvious impact a position abolition can have, and did have in this case, upon an employee's employment relationship, [it remains] convinced that a position abolition for economic reasons is primarily mission related and, therefore, a nonmandatory subject of negotiations."

The Cortland decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08941.htm