A ten-day suspension without pay recommended after employee is found guilty of refusing to comply with her supervisor’s instruction

A ten-day suspension without pay recommended after employee is found guilty of refusing to comply with her supervisor’s instruction

Human Resources Administration v Traylor, OATH Index #2162/11

OATH Administrative Law Judge Ingrid M. Addison found a clerical employee to be insubordinate when she refused her supervisor’s request to make corrections to ten cases records. 

Traylor's defense: She had  told the supervisor that despite her initials on the records, they were not her cases and "insisted that [her initials] must have been inserted by someone else." 

Ultimately another employee had to make the corrections.

Judge Addison rejected the employee’s contention that the supervisor’s failure to use the word “order” or “command” when she asked Traylor to make the corrections.

The ALJ explaining that “Even if [Traylor] had not worked on the cases originally, she did not have a legitimate excuse for disobeying the directive," recommended that Traylor be suspended without pay for ten days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2162.pdf

Liquidation of leave credits upon separation

Liquidation of leave credits upon separation

A NYPPL reader asked for some citations to court decisions that address the liquidation of an individual’s claimed leave credits upon his or her separation from his or her employment.

Among such rulings in NYPPL's  files are the following:

Payment for unused vacation and sick leave.
Boakye-Yiadom v Roosevelt Union Free School Dist., 25 Misc 3d 1226(A), [see http://www.nycourts.gov/reporter/3dseries/2007/2007_52657.htm ];

Payment for unused vacation, sick, and terminal leave pursuant to General Municipal Law §207-m 

Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662, [see  http://www.nycourts.gov/reporter/3dseries/2009/2009_01441.htm ];

Payment accrued unused compensatory, vacation and sick time pursuant to §207-m of the General Municipal Law upon separation 

Hauptman v Village of Elmira Hgts., 23 Misc 3d 439, [see

http://www.nycourts.gov/reporter/3dseries/2004/2004_24572.htm];

Including a retirement incentive payment  in the administrator's five-year final average salary for the purposes of determining the individual's retirement allowance 

Matter of Curra v New York State Teachers' Retirement Sys., 18 Misc 3d 1144(A), [see http://www.nycourts.gov/reporter/3dseries/2005/2005_52354.htm ]; Sustained 30 AD3d 666 http://www.nycourts.gov/reporter/3dseries/2006/2006_04216.htm 

Including salary increases and other compensation received prior to retirement in determining the three-year final average salary for the purposes of computing the individual's retirement allowance 

Matter of Palandra v New York State Teachers' Retirement Sys., 27 Misc 3d 1214(A)], [see http://www.nycourts.gov/reporter/3dseries/2010/2010_50735.htm],

Affirmed 84 AD3d http://www.nycourts.gov/reporter/3dseries/2011/2011_04357.htm

Right to counsel in an administrative disciplinary hearing

Right to counsel in an administrative disciplinary hearing
Matter of Elmore v Plainview-Old Bethpage Central School District, Board of Education, 273 A.D.2d 307

The Plainview-Old Bethpage Central School District terminated the employee following an administrative disciplinary hearing held pursuant to Education Law §3020-a.

The employee appealed the dismissal, contending that the Hearing Officer’s ruling unfairly denied him his right to counsel during the hearing when the Hearing Officer ruled that the employee could not discuss his “cross-examination testimony” with his attorney during any adjournments in the proceding.*

The Supreme Court agreed and granted the employee’s petition to vacate the School District’s decision to terminate his employment.

The Appellate Division sustained the lower court’s ruling, noting that under Education Law §3020-a(3)(c)(i), a teacher facing disciplinary charges shall have the right to be represented by counsel at any hearing held on those charges.

The court explained that while it was mindful that teacher disciplinary proceedings are not criminal actions, it was equally mindful that a tenured teacher has a protected property interest in his position which raises due process considerations when a teacher is faced with termination of his employment.

Noting that New York courts have disapproved similar prohibitions forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time, the Appellate Division ruled that “In view of the due process considerations involved when a tenured teacher is threatened with termination of his employment, this is a sound approach, particularly in the instant case, where the time period involved was 10 weeks.”

Accordingly, the Appellate Division concluded that the Supreme Court did not err in vacating the award and directing a new hearing.

* The cross-examination of the employee was conducted during five days which extended over a period of 10 weeks.

The decision is posted on the Internet at:

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=11&origin=Search&query=%2205738%22&rlt=CLID_QRYRLT6702424942&rltdb=CLID_DB921112324942&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA991112324942&tempinfo=word&vr=2.0

Substantial evidence test used to resolve challenges to an administrative decision

Substantial evidence test used to resolve challenges to an administrative decision
Matter of Incorporated Vil. of Lake Success v New York State Pub. Empl. Relations Bd., 41 AD3d 599

The Appellate Division held that the determination of the New York State Public Employment Relations Board, confirming the determination of an administrative law judge, made after a hearing, granting the petition of the Civil Service Employees Association to place certain positions into an already existing negotiating unit was supported by substantial evidence. 

Such evidence, said the court, consisted of PERB’s finding that the incumbents of those positions and the CSEA unit employees share a community of interest, that there is no conflict of interest that would affect the conduct of meaningful and effective negotiations, and that the placement would not cause administrative inconvenience. 

Accordingly, PERB's determination had to be sustained.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_05275.htm