Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected

Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected
Matter of Dockery v New York City Hous. Auth., 51 AD3d 575

The Appellate Division held that the Housing Authorit’s termination of its employee based on evidence contained on a “911 recordings.”

The court explained that “911 recordings were properly admitted into evidence at the [administrative] disciplinary hearing since they were not official records relating to [the employee’s] arrest or prosecution, and thus were not subject to the sealing statute (CPL 160.50; see Matter of Harper v Angiolillo, 89 NY2d 761, 767 [1997].”

Under the circumstances, the Appellate Division ruled that “The penalty of dismissal does not shock the conscience,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_04753.htm

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 2012 NY Slip Op 00623, Appellate Division, Fourth Department

David Zehner alleged that the Jordan-Elbridge Central School District had engaged in a pattern of violating New York's Open Meetings Law (Public Officers Law §100 et seq.) with respect to its going into executive session. Supreme Court agreed.

Affirming the lower court’s ruling, the Appellate Division said that the Open Meetings Law [OML] provides that "Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Section 105]" Here, said the court, the school district had violated the OML on three occasions.

Although the OML does allow a public body to go into executive session, the Appellate Division noted that “the topics that may be discussed [in such an executive session] are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.”

The problem underlying this action was that the school district “merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so.”  Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division explained that §105 is to be “strictly construed,” and the real purpose of an executive session will be carefully scrutinized "lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder."

Noting that the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party,” the Appellate Division said that it did not perceive any abuse by the Supreme Court, in it's exercise of its discretion, awarding attorney fees to Zehner.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00623.htm

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

Lynch v City of New York, Supreme Court, New York County, Justice Carol Edmead, Index 650822 [Not selected for publication in the Official Reports]

New York City currently pays “one half of the rate” of employee contributions for retirement that it had earlier assumed* on behalf of its Tier I and Tier II members of the New York City Police Pension Fund and the New York City Fire Department Pension Fund. The City had assumed making such contributions in order to provide such individuals with “increased take-home pay.”

The City, however, discontinued making “employee contributions” on behalf of police and fire personnel enrolled as Tier III members of those retirement systems effective July 1, 2009. Such enrollees were otherwise required to pay 3% of their annual compensation as an employee contribution for 25 years.

Justice Edmead ruled that the City of New York violated §480(b)(i) and (ii) of the Retirement and Social Security Law when it commenced to require New York City police officers and firefighters initially appointed on or after July 1, 2009 to pay the full employee contributions otherwise required to the New York City Police Pension Fund and to the New York City Fire Department Pension Fund, as the case may be, upon their enrollment as Tier III members of their respective retirement systems.

The court rejected the City’s claim that such police officers and firefighters were required to pay the statutorily required 3% of their annual compensation as their "employee contribution" toward retirement “for 25 years,” explaining that when the relevant provisions of law were initially enacted there was no expectation that eventually a Tier III [and additional Tiers] might be established by these Retirement Systems.

Finding that RSSL §480(b) is applicable to police officers and firefighters who are in Tier III, Justice granted the Patrolmen’s Benevolent Association of the City of New York, the Captain’s Endowment Association of the City of New York and the Uniformed Fire Officers Association motion for summary judgment.

* See RSSL §480(b)(i)

A copy of Justice Edmead’s decision is available from NYPPL. Send your request by e-mail to publications@nycap.rr.com .

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration
Mahinda v Board of Collective Bargaining, 2012 NY Slip Op 00636, Appellate Division, First Department

After an informal conference and "Step II" hearing, disciplinary allegations against Josephine Mahinda, a provisional employee, were sustained, and her employment with the New York City Department of Transportation was terminated.

Subsequently Mahinda failed to establish that her employee organization, the Organization of Staff Analysts, [OAS], breached its duty of fair representation by failing to advance to arbitration the grievance arising out of her termination. 

Although Mahinda argued that OSA should have processed her grievance to arbitration, the Appellate Division said that she had not established that an agreement providing for provisional disciplinary procedures had been negotiated pursuant to §65(5)(g)* of the Civil Service Law. §65(5)(g) authorizes the City and certain other public employers to enter such agreements in the course of collective bargaining..

After considering other theories advanced by Mahinda to support her argument that she was entitled to submit the matter to arbitration, the Appellate Division ruled that “there was no basis on which to grant [Mahinda’s] request….”

Nor, said the court, was there any basis for granting her request to review the City's underlying decision to terminate her. As a provisional employee, Mahinda could be terminated at any time, "without a hearing, for almost any reason, or for no reason at all," unless such action constituted an unconstitutional or unlawful action.

Finding that Mahinda failed to demonstrate that in terminating her employment the City violated Civil Service Law §65, which governs provisional appointments, or any other constitutional or statutory provision,"nor had  she demonstrated that her employment was terminated in bad faith or that the termination was arbitrary and capricious," the Appellate Division dismissed her appeal

* Civil Service Law §65.5(g) authorizes “The city of New York; and any other entities whose civil service and examinations are administered by the New York City Department of Citywide Administrative Services [DCAS] and an Article 14 [Taylor Law] employee organization, to enter into agreements to provide disciplinary procedures applicable to provisional appointees who have served for a period of 24 months or more in a position which is covered by such an agreement. Further, no such provisional employee is to be deemed to be permanently appointed, nor may such disciplinary procedures be deemed to preclude removal of an employee as a result of the establishment of and appointments from an appropriate eligible list or in accordance with any other provision of law. [N.B. Repealed December 31, 2014]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00636.htm

New York State's University Police, Park Police, EnCon Officers and Forest Rangers approve new collective bargaining agreement

New York State's University Police, Park Police, EnCon Officers and Forest Rangers approve new collective bargaining agreement
Source: Office of the Governor

On January 31, 2010 Governor Andrew M. Cuomo and Manuel M. Vilar, President of the Police Benevolent Association of New York State, announced the ratification of a contract agreement between the state and the labor union representing New York State's University Police, Park Police, EnCon Officers and Forest Rangers. The union reports more than 95% of their members voted to ratify the contract.

The ratified contract resolves outstanding wage and contractual issues dating back to 2005, ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The contract provides for zero percent wage increases for 2011-2013, a 2% increase in 2014, 9 days of deficit reduction leave, and adjustments to the health insurance premium.

The Agency Law Enforcement Services Unit (ALES) is composed of University police, Park Police, EnCon Officers and Forest Rangers. They have not had a contract since 2005 and were in arbitration for the years 2005-2007.

Key provision of the contract agreement include:

· Zero percent wage increases for 2011-2013, a 2% increase in 2014. 

· A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year. 

· Deficit Reduction Leave of five days this fiscal year and four days next fiscal year. 

· Retroactive payments that are scheduled to be paid in two installments -- one this fiscal year and one next fiscal year before the end of the calendar year. 

· Health insurance premium share increase by 6% for both individual and families, making the share 16% for individuals and 31% for family premiums. 

· Random drug testing and drug testing for probationary employees in addition to reasonable suspicion testing. 

· A labor/management committee to review all leave taken by officers, including annual, personal, sick, workers compensation, and the manner of such use. Recommendations will be made to the President of the Union and the GOER Director for implementation. 

· A health plan opt out so officers can opt out through a spouse/partner to a non-State health plan. Under the opt out, participants would receive $1,000 individual/$3,000 family . 

· Officers will receive broad layoff protection. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.

The provisions in a “memorandum of understanding” that are limited to applying to “employees” do not apply to a “retired employee”

The provisions in a “memorandum of understanding” that are limited to applying to “employees” do not apply to a “retired employee”

Derosa v Dyster, 2011 NY Slip Op 09363, Appellate Division, Fourth Department

Patricia Derosa, a retired employee the City of Niagara Falls, sued the City in an effort to compel it to provide her with “either post-employment health insurance coverage or opt-out payments in lieu of such coverage, contending that she was entitled to such benefits pursuant to the terms of a Memorandum of Understanding [MOU] between the City and the Union.

The Appellate Division ruled that Derosa, as a retired employee, was not eligible to elect the “opting out” provision, explaining that the MOU gave qualified employees a choice of either participating in the health care plan or opting out of that plan. However, said the court, although the MOU permitted retirees to participate in the health care plan upon retirement under the same terms and conditions as employees, it did not contain a similar "opt-out provision" for retirees.

Pointing out that the opt-out paragraph set out in the MOU specifically stated that qualified employees could elect to opt-out of the health care plan, the Appellate Division held that Derosa, as a retiree, and thus no longer an employee, was entitled to enroll in the health care plan at no cost to her but could not elect to "opt-out."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09363.htm

Agency or insurance carrier must provide substantial evidence to rebut presumptions set out in Volunteer Firefighters’ Benefit Law as to cause of death

Agency or insurance carrier must provide substantial evidence to rebut presumptions set out in Volunteer Firefighters’ Benefit Law as to cause of death
Machajewski v Town of Cambria, 89 AD3d 1175

Gerald A. Machajewski, a volunteer firefighter for the Town of Cambria, Niagara County, collapsed while responding to a call and died shortly thereafter.

It was determined that Machajewski suffered an acute coronary artery thrombosis, and the Workers' Compensation Board, applying the rebuttable presumptions contained in Volunteer Firefighters' Benefit Law §§44 and 61*, ultimately approved a claim for workers' compensation death benefits by Machajewski’s widow.

When the Town’s and its workers' compensation carrier’s appealed the Board’s determination, the Appellate Division said that there is no dispute that a heart or coronary artery condition caused Machajewski's death and thus his widow would entitled to death benefits if that condition "resulted from the duties and activities in which [decedent] was engaged" (Volunteer Firefighters' Benefit Law §61[1]).

As the record indicated that Machajewski had never been diagnosed with a heart condition and had been examined by his physician just weeks before his death and was found to be in good health, the Appellate Division ruled that “Inasmuch as that ‘evidence permits reasonable inferences to sustain the finding of the [B]oard that the death was due to unusual strain and effort’ attendant to [Machajewski’s] duties, the Town was obliged to provide substantial evidence to the contrary in order to defeat his widow’s application.

The court held that “the Board properly determined that claimant's demonstration of entitlement to death benefits had not been rebutted.”

* Presumptions regarding death or disability due to disease or malfunction of his or her heart or coronary arteries suffered by a volunteer firefighter alleged to have resulted from the performance of the duties and activities in which the volunteer fireman was engaged

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2011/2011_07765.htm

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

Arbitration between the Town Of Saugerties and the Town of Saugerties Policeman's Benevolent Assn., 2012 NY Slip Op 00458, Appellate Division, Third Department
 

The Town of Saugerties challenged the Supreme Court's denial of its CPLR 7503 petition to stay the arbitration of a grievance filed by the Town of Saugerties Policeman's Benevolent Association [PBA] concerning an order that required a police officer to work in excess of an eight-hour tour.

The Collective Bargaining Agreement (CBA) stated, among other things, that the Town "agrees to comply with the requirements of §971 of the Unconsolidated Laws of New York."*

Courts, said the Appellate Division, determine arbitrability according to a two-prong test:

1. May the parties arbitrate the dispute and, if so,

2. Whether the parties in fact agreed to do so.

The Town contended that demand to arbitrate fails both tests as the resolution of the dispute:

1. Requires the application or interpretation of the terms of a statute and public policy will not permit an arbitrator to apply or interpret a statute, and

2. The parties did not agree to arbitrate the application or interpretation of the statute at issue here.

The Appellate Davison decided that neither of the Town’s arguments had merit, explaining that the CBA incorporates §971 by reference, making the language of the statute a substantive provision of the CBA.

Further, said the court, the Town had identified any public policy that would preclude the arbitrator from interpreting such language set out in the CBA.

In addition, the court noted that the CBA defines disputes as "[a]ny grievance arising concerning the interpretation or application of the terms of this contract or the rights claimed thereunder and/or working conditions."

As the dispute underlying the PBA’s grievance concerns overtime, which is clearly a working condition, clearly one that the parties intended to arbitrate the Appellate Division concluded that Supreme Court correctly granted the PBA’s cross motion to compel arbitration and dismissed the Town’s petition.

* §971 of the Unconsolidated Law, in relevant part, provides that police officers shall not be assigned to tours of duty exceeding eight consecutive hours of each consecutive 24 hours, with certain exceptions. See, also,  Police Asso. of the City of Mt. Vernon v City of Mt. Vernon, 279 A.D.2d 561, posted on the Internet at: http://caselaw.findlaw.com/ny-supreme-court/1055483.html

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00458.htm

Enforcing disciplinary settlement agreements

Enforcing disciplinary settlement agreements
Lyons v Whitehead, 2 AD3d 638

The Appellate Division's decision in the Lyons case demonstrates the importance of making certain that the terms and conditions of a disciplinary settlement agreement clearly indicate the expectations of the parties.

An employee at the Letchworth Developmental Disabilities Service, and the Director of Letchworth, had entered into a disciplinary settlement agreement that provided that the employee would participate in a treatment program to treat her abuse of prescription drugs. The settlement required the employee to follow the program's attendance requirement, and to complete the program.

The agreement also provided that the employee would be placed on "general probation status" for one year, and that her employment could be terminated for a violation of her probation without any further hearing "except for time and attendance infractions".

The employee failed to attend a scheduled "medication course." The Director viewed this as a breach of the Settlement Agreement and terminated the employee's employment. Acting on behalf of the employee, the Civil Service Employee's Association, Inc., sued. They asked for a court order reinstating the employee to her position. CSEA argued that the employee’s failure to attend the medication course was a "time and attendance infraction" and thus she could not be summarily terminated under the terms of the Settlement Agreement.

Although the Supreme Court directed that the employee be restored to her employment, the Appellate Division reversed and remanded the case to the lower court to determine whether the employee’s failure to attend the "medication course" was a "time and attendance infraction" under the Settlement Agreement.

The Appellate Division ruled that "[b]ecause the Settlement Agreement is a contract between the parties, it must be construed according to ordinary contract law." Accordingly, the court must "determine the intention of the parties as derived from the language employed in the contract", and it "should strive to give a fair and reasonable meaning to the language used," citing Abiele Construction v New York City School Construction Authority, 91 NY2d 1.

It is clear that the appellant could terminate the employee's employment for a violation of her probation, "except for time and attendance infractions." Was employee’s absence from the "medication course" a breech of the Settlement Agreement?

The Director maintained that attending the medication course "was part of the treatment program" that the employee agreed to attend as part of the Settlement Agreement. CSEA, on the other hand, argued that it was "a mandatory course for all employees working at [the employee’s]salary grade and title for recertification to perform the duties of dispensing medication to patients" and thus her absence was a "time and attendance" problem excluded under the Settlement Agreement.

The court decided that the nature of the medication course could not be determined from the record and therefore it could not decide whether or not the employee’s failure to attend it was a "time and attendance infraction" or a breach of the disciplinary settlement agreement.

Thus, said the court, "the matter must be remitted to the Supreme Court, for a hearing on the question of whether the medication course was the same as the treatment program, and if not, whether the employee's  absence falls within the category of "time and attendance infractions." The Appellate Division said that the lower court "had to make a new determination" based on its answer to these questions.

The basic idea underlying the Lyons decision is that the court must interpret and apply the terms set out in a disciplinary settlement agreement precisely. The decision in Taylor v Cass, 122 A.D.2d 885, illustrates this point.

A former County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a six-month disciplinary probation.

The disciplinary settlement provided that the County could terminate the employee without any hearing if, in the opinion of the employee’s superior, the employee’s job performance was "adversely affected by his intoxication on the job during the next six months."

The employee, while serving this six-month disciplinary probationary period, was terminated without a hearing after what his supervisor described as the employee’s "failing to give a fair day's work" and "sleeping during scheduled working hours".

The employee challenged his dismissal and won reinstatement with back pay. Why? The Appellate Division decided that the employee’s dismissal was improper because he was not summarily terminated for the sole reason specified in the disciplinary settlement agreement: intoxication while on the job.

The advancement of two equally plausible and reasonable interpretations of the CBA provision at issue bars a court from granting a motion for summary judgment

The advancement of two equally plausible and reasonable interpretations of the CBA provision at issue bars a court from granting a motion for summary judgment

Williams v Village of Endicott, 2012 NY Slip Op 00276, Appellate Division, Third Department

The collective bargaining agreement (CBA) in effect between the Village of Endicott and the collective bargaining representative for police officers provided that at the time the plaintiff police officers retired from the Village’s police department in 1998, the Village  "shall keep in full force and effect medical coverage and hospital coverage for each member of the bargaining unit, with benefits to be of a value at least equivalent to those presently in force[,] subject to the following conditions:

All unit members retiring during the terms of this agreement agree that subsequent to their retirement, and in consideration of [defendant's] agreement to continue their health insurance coverage, they will continue to pay a contribution toward their annual health insurance premium and such contribution shall be a sum of $500.00 per annum for family coverage, and a sum of $200.00 per annum for individual coverage."*

When Williams became eligible for Medicare Part B coverage in 2007, he was informed that the health insurance provided by Village would not cover services that would be covered under Medicare Part B, even if he failed to enroll in the program.**

As a result, Williams enrolled in Medicare Part B*** and was charged a separate premium by Medicare, which was deducted from his Social Security benefits. When Village refused [William's] request for reimbursement, Williams sued, seeking a summary judgment that the CBA required the Village to cover the costs associated with his Medicare Part B coverage. The Village also moved for summary judgment dismissing Williams' petition. Supreme Court denied both motions and both Williams and the Village appealed.

The Appellate Division said that "In determining the obligations of parties to a contract, courts will first look to the express contract language used to give effect to the intention of the parties, and where the language of a contract is clear and unambiguous, the court will construe and discern that intent from the document itself as a matter of law." Further, the court said that “Whether a contract is ambiguous is a question of law to be resolved by the court.”

Although the Appellate Division found that there was “an ambiguity as to whether Medicare Part B coverage is a component of the ‘medical coverage and hospital coverage’ that [the Village] agreed to provide to retirees under the CBA,” it also said that “On the other hand, the operative language could be read to require defendant to continue to provide and pay for a defined level of health insurance benefits — i.e, those in place at the time of retirement — without resort to any particular insurance plan or provider, subject to [William’s] $500/$200 annual contribution.”

Concluding that the parties have advanced two equally plausible and reasonable interpretations of the CBA provision in question, thereby evidencing an ambiguity that requires consideration of evidence outside the four corners of the CBA relevant to the parties' intent.”

As the scant extrinsic evidence contained in the record did not dispositively establish the scope of health insurance coverage contemplated by the parties, the Appellate Division ruled that the matter was not amenable to summary disposition.

* The court noted that the interpretation of this provision was previously before it when the Village attempted to increase the annual contributions that retirees were required to pay towards their health insurance premium (Hudock v Village of Endicott, 28 AD3d 923 [2006]). In Hudock the Appellate Division found that "the language of the CBA unambiguously provides that for all times subsequent to the retirement of [the] plaintiffs and other officers who retired while the 1996-1999 CBA was in effect, those retirees are only required to pay defendant a contribution of $500 or $200 toward their annual medical insurance 'in consideration of [Village's] agreement to continue their health insurance coverage.'"

** See §167-a of the Civil Service Law with respect to the reimbursement of Medicare premiums by the State as the employer for its retired employees and NYSHIP participating employers on behalf of their retirees. A brief history of the events leading to the enactment of §167-a is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html

*** Enrollment in Medicare is not required by law but if Williams refused to do so, the Village’s insurance carrier would not pay any benefits otherwise payable by Medicare, in effect forcing Williams and similarly situated retirees to enroll in Medicare or forfeit most of their health insurance benefits.

The Williams decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00276.htm

Finding there is a qualified privilege with respect to statements made after a whistle-blowing event defeats an employee's claim of slander

Finding there is a qualified privilege with respect to statements made after a whistle-blowing event defeats an employee's claim of slander

Cusimano v United Health Servs. Hosps., Inc., 2012 NY Slip Op 00271, Appellate Division, Third Department

Following a report from a member of the staff that a physician was storing pharmaceutical drug samples in the physician's office in violation of the employer’s policy, the office of the physician was searched and 114 sample packets, totaling 798 tablets, of the drug Provigil, a controlled substance, was found in an unlocked filing cabinet in the physician’s office. This constituted a violation of the employer’s policy barring the storage of Provigil in the offices of its physicians.

When the search was completed, the employees performing the search confiscated the Provigil. They then allegedly reported their findings to other medical office assistants working at the facility and commented that the physician “would likely be arrested and dismissed.

The physician filed a lawsuit against the employer and certain of its employees alleging slander per se, the intentional infliction of emotional distress, prima facie tort and trespass. Supreme Court dismissed the physician’s complaint and the physician appealed.

The Appellate Division said that Supreme Court properly determined that the statements of the employees to co-workers were protected by a qualified privilege, noting that "A qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest.”

Significantly, the court said that such common interest “may include statements to fellow employees on a subject concerning the employer.”

In this instance the employees’ statements to which the physician objected “were made solely to their co-employees,” all of whom were collectively responsible for the functioning and proper operation of the facility.

As all the employees involved had a common interest in knowing whether pharmaceuticals were being stored in violation of the employer’s policy and the implications with respect to physicians storing such items in their  offices, the Appellate Division found that the employees being sued “demonstrated that the statements were protected by a qualified privilege.”

This, said the court, shifted the burden to prove that the employees "acted out of personal spite or ill will, with reckless disregard for the statements' truth or falsity, or with a high degree of belief that their statements were probably false" to the physician.

Although the physician said that certain of the employees involved “harbored ill will” as a result of certain events that transpired in the days prior to the search, the Court noted that "spite or ill will refers not to [a] defendant's general feelings about [a] plaintiff, but to the speaker's motivation for making the defamatory statements [, and] a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication" of the offending statement.

The employees conducting the search did based upon first-hand information from another worker that she observed pharmaceutical samples being delivered to physician’s office Their statements to other employees following the discovery of the samples of Provigil in the physician’s office were “made in furtherance of the common interest” and thus were protected by the privilege.”

The decision states that even if the individuals disliked the physician or possessed some ill will towards the physician, the physician failed to make an evidentiary showing that the employees involved "were motivated by malice alone in making the statements" nor was there any representation that the employees involved “knew that their statements describing Provigil as a narcotic* were false or that they acted with reckless disregard as to whether [such statements] were false.”

Indeed, said the Appellate Division,  “the proof established that the terms ‘narcotic’ and ‘controlled substance’ are often used interchangeably throughout the medical community, and that the [employees] neither knew nor understood the difference.

Accordingly, said the court, the physician failed to demonstrate a triable issue regarding the existence of constitutional or common-law malice sufficient to defeat the qualified privilege and the privileged nature of these statements likewise precludes liability against the employer under the theory of respondeat superior.

The Supreme Court’s ruling was affirmed by the Appellate Division.

* Although all narcotics are controlled substances, not all controlled substances are narcotics.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00271.htm

Police may not use GPS device to track suspects without a court order - is a court order required to acquire and use GPS evidence in an administrative disciplinary action?

Police may not use GPS device to track suspects without a court order - is a court order required to acquire and use GPS evidence in an administrative disciplinary action?

United States v. Jones, Certiorari To The United States Court of Appeals for The District of Columbia Circuit. No. 10–1259

The U.S. Supreme Court has unanimously ruled that “The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.”

The Court said that the government violated the Fourth Amendment, which protects individuals from unreasonable searches, when it afixed a global positioning [GPS] device to Antoine Jones’s car and tracked his movements continuously for a month. The Court rejected the argument advanced by the Government that Jones had no “reason­able expectation of privacy.”

Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, joined. Justices Sotomayor filed a concurring opinion, as did Justice Alito, in which Justices Ginsburg, Breyer, and Kagan joined.

Earlier New York’s highest court, the Court of Appeals, ruled that the warrantless installation of a GPS device to track an individual suspected of criminal activity was barred by New York State’s Constitution [see People v Weaver, 12 NY3d 433,].

The Weaver Court noted that Article 1, §12, of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides: "The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof."

The Court of Appeals reasoned that:

1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.

2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.

The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”

A number administrative disciplinary actions taken against employees were initiated as a result of information obtained using global positioning equipment installed in the employer’s vehicle or in the employee's employer-issued cell phone.

The decisions in Jones and in Weaver case may have an impact on the future use of such GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.

Among the unresolved questions:

1. Will a court order be required to obtain GPS evidence for use in an administrative disciplinary action if the administrative charges and specifications would also serve as a basis for filing a criminal complaint against the employee?

2. Will a court order be required to obtain GPS evidence for use in an administrative disciplinary action if the administrative charges and specifications could not be a basis for filing a criminal complaint against the employee?

For the present, however, the following appears to control with respect to the use of GPS evidence in an administrative disciplinary action.

1. PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining. In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, PERB’s Administrative Law Judge dismissed a charge alleging that the County violated the Taylor Law by unilaterally deciding to utilize global positioning system (GPS) technology.

The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis. [See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08]

2. In Cunningham v New York State Dept. of Labor, 88 AD3d 1347 the court held that evidence obtained using a global positioning device [GPS] was permitted in administrative disciplinary hearing.

Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.

The Appellate Division noted that in a case decided after Office of the Inspector General [OIG] had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”

Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.

The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth." As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”

The Appellate Division decided that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the court ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”

Under the circumstances the Appellate Division concluded that neither OIG nor Department of Labor had acted unreasonably.

3. In Halpin v Klein, 62 AD3d 403, the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the GPS installed in his Department-issued cell phone.

The Weaver decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2009/2009_03762.htm

The Cunningham decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08529.htm

The Halpin decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03593.htm

The Jones decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

Videotape admitted as evidence in a disciplinary hearing alleging fighting on the job

Videotape admitted as evidence in a disciplinary hearing alleging fighting on the job

NYC Dept. of Homeless Services v Murray, OATH Index #2149/11

A dispute at the entrance of a homeless shelter led to disciplinary charges being filed against a New York City Department of Homeless Services employee.

The employee, a special officer who was stationed at the shelter’s security screening checkpoint, got into a physical altercation with her partner, another special officer, in view of clients.

A videotape showed that the officer and her partner exchanging words. The officer threw latex gloves at her partner, who threw a punch at her. The Officer than charged her partner, and had to be restrained by a third officer.

OATH Administrative Law Judge Kevin F. Casey found that the officer’s use of offensive language in front of clients and co-workers was misconduct. He also found the fight to be misconduct because it could have been avoided, but that the provocation did mitigate the penalty he would have otherwise recommended.

Noting that “[f]ighting with a colleague at the workplace is misconduct, even if there is provocation.” ALJ Casey said that “workplace fight between colleagues is misconduct by both employees regardless of who starts the fight, as long as both parties demonstrated a willingness to participate.”

As to a participants claim of “self-defense, self-defense can justify participation in a fight only if the employee had no reasonable means to avoid the altercation said the ALJ.

Judge Casey, sustaining two of the charges filed against the officer, recommended a 30-day suspension without pay as the penalty to be imposed.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2149.pdf

The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

Kalyanaram v New York Inst. of Tech., 2012 NY Slip Op 00309, Appellate Division, First Department

The Appellate Division rejected a party to the arbitration assertion that disputes concerning the performance of the remedy provisions of the arbitration award should be determined by the arbitrator as being without merit in this instance.

The court explained that “Since a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed (79 AD3d 418 [2010], lv denied 17 NY3d 712 [2011]), a judgment enforceable by the courts has been entered (see CPLR 7514),” the arbitrator is functus officio, “without power to amend or modify the final award.”

Functus officio means "having performed his office." Where, as here, there has been a final judicial determination concerning the matter, the arbitrator no longer has jurisdiction.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00309.htm

Application seeking the removal of a school official must give the official notice of the application being filed

Application seeking the removal of a school official must give the official notice of the application being filed

Application of Donald B. Oglesby regarding an election, and application for the removal of Superintendent Lisa Wiles, board members Karin Osterhoudt and Phillip Mattracion, and teachers Denise Moore, James Pidel and Ann Beukelman, Commissioner of Education Decision #16,311

The Commissioner viewed Donald B. Oglesby’s applications as challenging an election to select members of the school board and to remove the school superintendent and certain board members and teachers from their respective positions.

As to the application for removal of the school officials and teachers, the Commissioner said that it must be denied because the notice of petition is defective.  

Commissioner’s regulations require that the notice accompanying a removal application specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, Oglesby failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  

The Commissioner explained that “A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.”

Further, the Commissioner rejected Oglesby’s application to remove certain teachers from their positions, indicating that tenured teachers are school district employees, not school officers, and are thus not subject to removal under Education Law §306.

Other technical and substantive issues addressed by the Commissioner in considering Oglesby’s application included:

Verification of the application: §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified; Oglesby’s reply was not verified in violation of §275.5 and not considered by the Commissioner.

The Commissioner declining to consider material submitted in unsworn documents from Oglesby, noting that additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner.

The failure of Oglesby to serve the named individuals in his application with copies of tape recordings or video tapes that were “were alleged to be attached as exhibits to the petition” as otherwise required by §275.8(a) of the Commissioner’s regulations -- a “copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers . . . shall be personally served upon each named respondent . . . .” 

As to newspaper articles submitted by Oglesby, the Commissioner said that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”

The Commissioner rejected school districts claim that certain of the act complained of were untimely. The Commissioner held that it would be “unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election” complaint. In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election [citations omitted].

Finally, the Commissioner said that to the extent that Oglesby raised claims that do not arise under the Education Law, such as defamation and slander, he lacked lack jurisdiction over such claims.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16311.html