An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record 

Rauschmeier v Village of Johnson City, 2012 NY Slip Op 00158, Appellate Division, Third Department

The Village of Johnson City filed disciplinary charges against an employee pursuant to Civil Service Law §75. Following a disciplinary hearing, the Hearing Officer recommended that employee be found not guilty of the charges filed against him and that he be reinstated to his position with full back pay, benefits and seniority.

The Mayor of the Village, with support of the Village Board of Trustees, rejected the Hearing Officer's recommendation, found the employee guilty of misconduct and dismissed the employee from service.

Contending that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, the employee sued, seeking, among other things, an annulment of the penalty imposed by the Mayor. 

Although Supreme Court rejected the employee’s claim that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, a determination sustained by the Appellate Division,* another issue, whether the Mayor’s decision to reject the Hearing Officer's recommendation was supported by substantial evidence, was referred to, and considered by, the Appellate Division.

Addressing the Mayor’s decision to reject the Hearing Officer's recommendation, the Appellate Division said that its review of such a determination was limited to whether it is supported by substantial evidence.

When, however, the appointing authority, rejects a disciplinary recommendation made by a hearing officer after a hearing, the appointing authority must set forth in its decision "findings of fact based on competent proof contained in the record and then employ those findings to arrive at conclusions that are supported by substantial evidence."

The Appellate Division said that the Mayor, in rejecting the Hearing Officer's recommendation, referred to testimony of certain witnesses given at the hearing, but did not specify what in their testimony supported his conclusion.

More is required said the court, “especially since the other evidence introduced at the hearing – all of which is uncontradicted and not in dispute — supports the Hearing Officer's determination.”

Accordingly, the Appellate Division ruled that the Mayor’s “conclusion to the contrary was not supported by substantial evidence,” and thus his determination must be annulled and the employee reinstated to his position with full back pay and benefits.

* The Appellate Division also rejected the employee’s contention that the Mayor acted beyond his legal authority, pointing out that Civil Service Law §75(2) provides that an employee disciplinary proceeding shall be conducted "by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose" and where such a designation is made, the person so designated is to make a record of the hearing  and a recommendation as to the penalty to be imposed in the event the individual is found guilty of one or more charges. The record of the hearing and the recommendation is then to "be referred to [the appointing authority] for review and decision."

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits

Levy v Plainview Fire Dept., 89 AD3d 1331

Danny Levy, a member of the Plainview Fire Department, submitted a volunteer firefighters' claim for benefits based upon injuries allegedly sustained while assisting the City of New York Fire Department at the World Trade Center disaster in September 2001.

The Workers' Compensation Board awarded claimant benefits, finding dual liability between the Plainview Fire Department and the self-insured employer, the City of New York, on the ground that Levy's activities at ground zero were directed and controlled by both entities. Rejecting the City’s appeal, the Appellate Division affirmed the Board’s ruling.

The court noted that the General Municipal Law §209-i 1) provides that "Whenever a volunteer [firefighter] is within this state, but outside the area regularly served by the fire company or fire department of which [the volunteer] is a member and has knowledge of a fire or other emergency at or near the place where [the volunteer] is for the time being, such volunteer . . . may report to the officer in command of the paid or volunteer fire company or paid or volunteer fire department, or in command of one of the paid or volunteer fire companies or one of the paid or volunteer fire departments, engaged in the handling of any such fire or other emergency and, on an individual basis, offer his [or her] services to assist such fire company or fire department. After [the volunteer's] services are so accepted, the volunteer . . . shall then be entitled to all powers, rights, privileges and immunities granted by law to volunteer [firefighers] during the time such services are rendered, in the same manner and to the same extent as if [the volunteer] were a volunteer member of the fire company or fire department which he [or she] is assisting, including benefits under the volunteer [firefighters'] benefit law."

The Appellate Division said that the record establishes that Levy initially volunteered on his own at ground zero on September 11, 2001. Thereafter, on September 12, 2001, claimant reported to the Plainview fire house where the fire chief requested volunteers to assist in the rescue and recovery efforts at ground zero. Levy testified that over the course of the next two weeks, he reported to the City's headquarters with other Plainview firefighters who volunteered and that their activities were then directed and controlled by the City.

Accordingly, the court held that substantial evidence supported the Board's factual conclusions regarding Levy’s dual employment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08514.htm

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli’s office announced that the New York State Employees’ Retirement System is recalculating the pension of a former director at the state Department of Correctional Services (DOCS) after an investigation by his office found that he took Fridays off for 17 years at taxpayer expense.

Howard Dean, 66, of Locke, N.Y., pleaded guilty last year to second degree grand larceny and is awaiting sentencing by Oneida County Judge Barry Donalty. On Tuesday, Judge Donalty postponed Dean’s sentencing to May 10. The case is being prosecuted by Oneida County District Attorney Scott D. McNamara.

Meanwhile, the Comptroller’s office has cut Dean’s annual state retirement benefit by nearly $4,000 and is seeking recovery of $13,500 in pension payments made since his 2008 retirement, based on his admission that he was paid for 17 years of Fridays that he did not work.

“This recalculation and the prosecution sends a key message to any abuser entrusted with public funds: we will find you, we will hold you accountable and we will make you pay,” DiNapoli said. “My office will not tolerate abuses of the state pension system. When a person commits fraud which boosts their pension benefits, we will aggressively seek to cut their payments to account for their theft to the full extent of the law.”

DiNapoli is pushing proposed legislation to elevate official misconduct to a felony and force public officials to pay penalties of up to twice the amount gained by their crimes.

An investigation and audit by DiNapoli and the State’s Inspector General’s office found that Dean defrauded the state of nearly $500,000 in unearned salary and improper perks while serving as director of the DOCS Food Production Center in Rome, N.Y.

Dean freely admitted to auditors that he did not work Fridays for 17 years and the investigation concluded that he had the support of senior management in many of his improprieties. Since then, DOCS has indicated that it has improved internal controls and trained staff to identify fraud and abuse.

The State Comptroller encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud, corruption or abuse of taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint by mail complaint by writing to: Office of the State Comptroller, Investigations Unit, 14th Floor, 110 State St., Albany, NY 12236 or online by e-mail at investigations@osc.state.ny.us .

If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the relationship of the subject matter of the dispute to the general subject matter of the CBA

If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the  relationship of the subject matter of the dispute to the general subject matter of the CBA

Matter of Haessig (Oswego City School Dist.), 2011 NY Slip Op 09723, Appellate Division, Fourth Department

In this CPLR Article 75 action the president of the Oswego Classroom Teachers Association, Brian Haessig, sought a court order to compel the arbitration of a grievance filed after the school district assigned an additional instructional class to teachers for the 2010-2011 school year. The school district, on the other hand, asked for a stay of arbitration on the ground that the grievance was not arbitrable.

The Appellate Division affirmed Supreme Court’s granting Haessig’s petition while denying the school district’s cross-motion to stay the arbitration.

Citing Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Appellate Division explained that when, as was here the case, the collective bargaining agreement [CBA] contains a broad arbitration clause, the court’s determination of arbitrability is limited to "whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.”

In addition, the Appellate Division said that notwithstanding the CBA provision that "the term grievance' shall not apply to any matter as to which (1) the method of review is prescribed by law, or rules or regulation having the force or effect of law…”the fact that the Commissioner of Education has promulgated regulations pertaining to teacher class loads (see 8 NYCRR 100.2 [i]),” such a provision “does not exclude that subject from the scope of arbitration under the CBA,” explaining that “although Education Law §310 permits any aggrieved party to appeal by petition to the Commissioner of Education, that statute does not mandate a particular method of review and does not preclude submission of disputes concerning teacher class loads to arbitration.”

In addition to rejecting other arguments raised by the school district in support of its position, the court noted that Association “did not abandon its right to arbitrate the [instant] grievance by filing a notice of claim with the Public Employment Relations Board concerning an improper practice charge.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09723.htm

Reopening an appeal decided by the Commissioner of Education

Reopening an appeal decided by the Commissioner of Education

Application to reopen the Appeal of Michael P. Thomas, Commissioner of Education Decision #16,322

8 NYCRR §276.8 [of the Commissioner’s regulations] address the procedures for submitting an application to reopen a prior decision by the Commissioner. The rule provides that such an application is considered solely to the discretion of the Commissioner and such applications will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made. 

Significantly, a reopening “may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal.”

The appeal that Thomas sought to have reopened had been dismissed as untimely. 

In his application for reopening, Thomas alleged that the Commissioner Steiner did not rule on his request for an order compelling the employer to cease certain actions. The Commissioner, however, said that as his appeal was found to be untimely, it was unnecessary address Thomas’ request in this regard.

Thomas, said the Commissioner, failed to demonstrated that the decision in his underlying appeal was rendered under a misapprehension of fact, nor has he presented any new and material evidence that was not available at the time the decision was made but was attempting to reargue the original application. However, the Commissioner explained, “It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening,” citing a number of earlier decisions including Application of Gillen, 50 Ed Dept Rep, Decision No. 16,112, and denied Thomas’ application to reopen the underlying appeal.

The Thomas decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16322.html

The Gillen decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16112.htm

Workers’ Compensation Benefits for injuries sustained in voluntary off-duty athletic event available if found to be a “work-connected”

Workers’ Compensation Benefits for injuries sustained in voluntary off-duty athletic event available if found to be a “work-connected”

Nichols v Hale Cr. ASACTC, 2012 NY Slip Op 00078, Appellate Division, Third Department

James A. Nichols, the Superintendent of Hale Creek Correctional Facility in Fulton County, was injured while coaching an employee volleyball team preparing to compete in the "Department of Correction Olympics."

Corrections and its insurer, the State Insurance Fund [SIF], controverted Nichols’ claim, arguing that he had not suffered the injury in the course of his employment.

The Workers’ Compensation Board ruled in Nichols favor and SIF appealed.

The Appellate Division affirmed the Board’s ruling. Although Workers' Compensation Law §10(1) provides that an injury is not compensable when it is sustained during voluntary participation in an off-duty athletic activity that does not constitute part of an employee's work-related duties, in this instance the record indicated that Nichols “was given specific direction to improve staff morale, and his encouragement of employee participation in the Olympics and his active role in coaching the volleyball team were in furtherance of that edict.”

In addition, testimony by Nichols supervisor that “there is an expectation that superintendents be involved with as many facility-related events as possible,” said the court.

Accordingly, said the court, “we decline to disturb the Board's factual determination that [Nichols’] injury arose out of and in the course of his employment.”

In contrast, in Koch v Rockland Sheriff’s Department, 289 A.D.2d 865, Motion for leave to appeal denied, 98 N.Y.2d 601, the Appellate Division sustained the Workers' Compensation Board rejected Koch’s application for benefits after determining that the injury "was not job related.

Koch, said the Board, suffered his injury while participating in a union-sponsored softball game between employees of the Sheriff's Department's correction division and employees of its patrol division.

Where, as here, said the Appellate Division, an employee is injured in a voluntary athletic activity that is not part of the employee's work-related duties, §10.1 of the Workers’ Compensation Law bars an award of workers' compensation benefits unless one of three conditions is met.

The three exceptions: The employer (a) requires the employee to participate in such activity, (b) compensates the employee for participating in such activity or (c) otherwise sponsors the activity.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00078.htm

Declining to avail one’s self of an administrative remedy triggers the running of the statute of limitations to challenge the administrative decision

Declining to avail one’s self of an administrative remedy triggers the running of the statute of limitations to challenge the administrative decision
Goldstein v Teachers' Retirement Sys. of the City of New York, 89 AD3d 501

The New York City Department of Education advised Leslie Goldstein that the New York City Teachers’ Retirement System had improperly included prior employment in calculating his service credit with the New York City Department of Education.

Although Goldstein was offered an administrative remedy that would have allowed him to obtain the service credit he wished, he declined that remedy. The Appellate Division ruled that the four-month Statute of Limitations to challenge the calculation of his service credit commenced running on the date he declined the administrative remedy offered.

The Appellate Division noted that when the Retirement System ascertained that Goldstein actually had less service credit that it preliminary evaluation indicated, it was required by Education Law §525 to correct the error.

Further, said the court, “The doctrine of estoppel may not be applied to prevent [the Retirement System] from doing so,” citing E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 369 and Matter of Scheurer v New York City Employees' Retirement Sys., 223 AD2d 379

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07925.htm

Resignation in anticipation of being served with disciplinary charges

Resignation in anticipation of being served with disciplinary charges

Claim of Cohen (Town of Brookhaven--Commissioner of Labor), 2012 NY Slip Op 00068, Appellate Division, Third Department

The decision explores the eligibility of an individual who resigned from his position when threatened with disciplinary action.

Citing Matter of Jimenez [New York County Dist. Attorney's Off. —Commissioner of Labor], 20 AD3d 843, the Appellate Division said that "A claimant 'who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct."

In this instance Brookhaven was preparing to file Civil Service Law §75 disciplinary charges against the employee unless some type of negotiated resolution was agreed upon or the employee resigned from the position.*

The employee resigned and applied for unemployment insurance benefits claiming that he felt he had no option but to leave his employment since disciplinary charges were imminent, that he did not believe he could prevail at a hearing and that he could lose his medical benefits.

The Unemployment Insurance Appeal Board ruled that employee was entitled to receive benefits provided that he did not engage in disqualifying misconduct and remanded the matter to the Unemployment Insurance Administrative Law Judge for “a further hearing on the misconduct issue.”** 

The Appellate Division sustained the Board's determination. Although the employer never actually filed before the employee resigned, the court ruled that “under the circumstances presented,” this does not establish that [the employee] voluntarily left his employment without good cause and thus was ineligible for unemployment insurance benefits."

* In some instances an employee threatened with disciplinary action unless he or she resigns does, in fact resign only to subsequently attempt to rescind his or her resignation claiming that it was coerced. In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals sustained the appointing authority’s refusal to allow Rychlick to withdraw his resignation that Rychlick claimed had been obtained under duress -- the threat of disciplinary action unless he resigned -- ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.

** 4 NYCRR 5.3, which applies to officers and employees of the State as an employer, provides that in the event charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation. Many local civil service commissions have adopted a similar rule with respect to public employees under their respective jurisdictions.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00068.htm

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism

Dep’t of Transportation v. Pierrteeisme (in PDF), OATH Index No. 2112/11 (Oct. 3, 2011), adopted, Comm’r Dec. (Oct. 24, 2011)

A New York City assistant highway repairer was arrested. Unable to make bail, he was absent from work for 10 months.  

The New York City Department of Transportation filed disciplinary charges against the individual, alleging excessive absenteeism and absence without authorization, as well as conduct prejudicial to good order based on the arrest. 

OATH Administrative Law Judge Faye Lewis sustained the absenteeism charges on an incompetence theory, finding that his lengthy absence, with no showing he would return soon, rendered him incompetent to perform the duties of his position. 

Judge Lewis, however, recommended dismissal of the “conduct prejudicial to good order based on the arrest” charge, noting that an arrest, without any evidence of the underlying misconduct, amounts to an accusation only. 

As to the penalty to be imposed based on the employee’s being found guilty of the absenteeism, Judge Lewis recommended the individual be terminated from employment.

Concerning Practice and Procedure before the NYC Office of Administrative Trials and Hearings

Concerning Practice and Procedure before the NYC Office of Administrative Trials and Hearings

Health and Hospitals Corp. v Chime, OATH Index #2969/09


OATH Administrative Law Judge Tynia D. Richard denied a request made by a former City hospital employee to reopen her disciplinary case and vacate a stipulation of settlement that she entered into in 2009

The settlement, the terms of which were confirmed on the record by the individual, included her agreement to resign from her position.

Although represented by counsel at the time of settlement, the employee claimed she was coerced into the agreement.

ALJ Richard found that the stipulation concluded the matter and that OATH no longer had jurisdiction. Moreover, Judge Richard said that OATH must receive a designation from appointing authority to hear the matter, and the hospital did not consent to reopen the case.

As OATH is not a “court” under state law with general jurisdiction to hear matters brought by individuals, the Law Judge noted that “A challenge to the validity of an executed stipulation is a contract claim more appropriately asserted in state court.”