Unsatisfactory performance of assignments does not always equate to misconduct for the purposes of disqualifying an individual for unemployment insurance benefits

Unsatisfactory performance of assignments does not always equate to misconduct for the purposes of disqualifying an individual for unemployment insurance benefits
Matter of Marc (Commissioner of Labor), 2012 NY Slip Op 01726, Appellate Division, Third Department

Andre F. Marc was employed as a head teacher but was terminated for failure to complete overdue paperwork, despite prior warnings. An Unemployment Insurance Administrative Law Judge upheld the initial determination finding that Marc was disqualified from receiving unemployment insurance benefits because he had lost his employment through misconduct.

The Unemployment Insurance Appeal Board reversed that decision, concluding that Marc’s job performance, while unsatisfactory, did not rise to the level of misconduct that would disqualify him for unemployment insurance benefits.

Commenting the "Whether a claimant lost his or her employment through disqualifying misconduct presents a factual issue for the Board, and its resolution thereof will not be disturbed if supported by substantial evidence," the Appellate Division said that in Marc’s case the Board found that he:

1. Was only afforded a minimal period of time during the week to complete his paperwork;  

2. He did not fall significantly behind until he had to take on the additional paperwork responsibilities of a fellow employee who was on vacation; and

3. The Board noted that he still managed to complete a significant amount of the backlog prior to his termination.

Thus, said the court, while the proof of claimant's inefficiency may have justified his discharge, there is, nonetheless, substantial evidence supporting the Board's finding that claimant's poor work performance did not rise to the level of misconduct.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01726.htm

Employees served with disciplinary charges alleging time and attendance violations

Employees served with disciplinary charges alleging time and attendance violations

NYC Department of Sanitation v Alves, OATH Index #402/12
NYC Department of Corrections v Sharon Jackson-Crawford, OATH Index #2710/11

The Alves Case

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended a 47 day suspension without pay as the penalty to be imposed after finding a NYC Sanitation Department worker guilty of being AWOL on 15 occasions in about a one-year period and being habitually late in violation of Department rules.

Although the tardiness was typically less than four minutes, Judge Zorgniotti noted that the Department’s rules did not allow any “grace period” with respect to lateness. While the employee contended that clock used to record the 6:00 a.m. start time was not accurate, the ALJ said that the employee “was on notice that her timeliness was being monitored and should have synchronized her time piece to that clock.”

As to the penalty recommended, Judge Zorgniotti said although the Department seeks to terminate the individual or, in the alternative ten days for each AWOL and three to five days for each lateness, despite the employee’s very poor record, “I find that the penalty of termination is excessive under the circumstances.” Also, said the ALJ, “a suspension of 140 days would be disproportionate to the misconduct and would also be shocking to one’s sense of fairness.”

Still, the Judge agreed that a stern penalty is warranted, hence her recommendation that the employee be suspended without pay for 47 days.

The ALJ also commented that “The Department has a right to a work force that it can rely on. There can be no doubt that if [the employee] continues to have time and leave issues, [the employee] will be terminated from her employment.”


The Jackson-Crawford case

In another “time and attendance” case, Department of Corrections v Jackson-Crawford, OATH Index #2710/11, OATH Administrative Law Judge John B. Spooner recommended the termination of employment of a correction officer who had spent 250 days on sick leave since September 2009.

The officer testified that the absences were due to a work-related injury. ALJ Spooner, however, found that the connection between the absences and a work-related injury was tenuous and that the number of absences violated department rules by a substantial margin. The ALJ also noted that the officer had a pattern of using excessive sick leave for a number of years, including 95 days in 2006, 199 days in 2007, and 171 sick days in 2008.

The NYS Sanitation Department decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-402.pdf 

The NYC Department of Correction decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2710.pdf

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Appeal seeking removal of interim school superintendent from that position survives his or her appointment as the school district’s superintendent of schools

Appeal seeking removal of interim school superintendent from that position survives his or her appointment as the school district’s superintendent of schools

Application of Sally Stephenson seeking the removal of the Hamburg Central School District’s Interim Superintendent of Schools and President of its Board of Education, Decisions of the Commissioner of Education, Decision No. 16,330

In two separate applications, Sally Stephenson asked the Commissioner of Education to remove the Hamburg Central School District’s interim superintendent and the School District’s board president. Both appeals were consolidated for decision.

One of the issues concerned the interim superintendent’s assertions that Stephenson’s application for his removal must be denied as moot because he is no longer the interim superintendent. 

Although the Commissioner stated that he would “only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest,” he ruled that such was not the case here.

Noting that it was correct that the interim superintendent was no longer employed by the School Board as its interim superintendent, the Commissioner said that he had appointed to the position of superintendent of schools and thus is a school officer as defined in Education Law §306. Accordingly, said the Commissioner, Stephenson’s application would not be denied on this ground.

Ultimately the Commissioner dismissed both applications after finding that they had not been properly served and for other procedural reasons.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16330.html

A body electing to go into executive session must indicate the precise reasons for its so doing and not merely recite the statutory categories for doing so

A body electing to go into executive session must indicate the precise reasons for its so doing and not merely recite the statutory categories for doing so

Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 91 AD3d 1349

The basic rule is 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 of the Public Officers Law.

An executive session is not open to the general public, but the subjects that may be discussed in such a session are limited by §105 of the Open Meetings Law.* Those set out the statute include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.

In this instance, said the Appellate Division, Supreme Court properly determined that the School Board violated the Open Meetings Law on three occasions when it merely recited the statutory categories for going into executive session without setting forth a precise reason or reasons for doing so.

Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division said that §105 of the Open Meetings Law is to be strictly construed and that the “real purpose of an executive session will be carefully scrutinized.” This, court explained, was to make certain that the mandate of the Open Meetings Law would not be thwarted “by thinly veiled references to the areas delineated thereunder."

Noting that §107(5) of 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 of Supreme Court's discretion in awarding attorney fees to Zehner.

* Section 105 of the Public Officers Law provides that “A public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:

 a. matters which will imperil the public safety if disclosed;

 b. any matter which may disclose the identity of a law enforcement agent or informer;

 c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;

 d. discussions regarding proposed, pending or current litigation;

 e. collective negotiations pursuant to article fourteen of the civil service law;

 f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;

 g. the preparation, grading or administration of examinations; and

 h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.”

The decision is posted on the Internet at:

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

Applying an employer’s anti-fraternization policy

Applying an employer’s anti-fraternization policy

Source: Portland [Maine] Press Herald news report

OATH Administrative Law Judge John B. Spooner sustained charges that a correction officer engaged in undue familiarity with an ex-inmate and made false statements about the relationship and recommended that the correction officer be dismissed. [See http://www.publicpersonnellaw.blogspot.com/2012/02/hearing-officer-recommends-correction.html ]

The arbitrator in another “prohibited association” case came to a different conclusion and ruled that a State of Maine Bureau of Insurance insurance examiner who married a woman who worked for an insurance company should not have been terminated from his position.

According to Portland [Maine] Press Herald, the examiner told his supervisor that “he might want to date” a woman that he had noticed while performing an audit of an insurance company. His supervisor told the examiner not to socialize with the woman while he was conducting the audit. The examiner complied with his superior’s instruction but after completing the audit the examiner contacted the woman and ultimately they married.

When his supervisor directed the examiner to conduct another audit of the insurance company he declined, contending that it constitute a conflict of interest for him to do so. Ultimately Anne Head, commissioner of the Maine Department of Financial and Professional Regulation wrote the examiner, stating that "Your marriage to an insurance company manager represents a conflict of interest. As a result of this determination, your employment with the Bureau of Insurance will cease."

The arbitrator ruled that “the State did not have grounds to fire [the insurance examiner] simply because he got married.” The arbitrator found that there was no evidence that “the bureau considered any alternatives to termination, in terms of assignment of other duties.” Ruling that the examiner should not have terminated from his employment by the Bureau, the arbitrator directed that the examiner be reinstated to his former position with back pay.

Failure to exhaust administrative remedy held a bar to seeking judicial relief

Failure to exhaust administrative remedy held a bar to seeking judicial relief
Holzman v Commission on Judicial. Conduct, 2012 NY Slip Op 01577, Appellate Division, First Department

Surrogate Court Judge Lee L. Holzman sought a stay of disciplinary proceedings brought against him by the Commission on Judicial Conduct pending the resolution of the criminal prosecution of a witness to the disciplinary proceedings.

Supreme Court denied issuing the stay and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that the denial of the petition and dismissal of the proceeding was warranted because Judge Holzman had failed to exhaust the administrative remedy available to him pursuant to Judiciary Law §44(7).*

Further, said the court, Judge Holzman “has not demonstrated that doing so would be futile or that irreparable harm would occur absent judicial intervention,” commenting that the "possibility of reputational harm" claimed by Judge Holzman “does not constitute irreparable injury warranting the relief sought by him.”

* The history to date of these proceedings is posted on the Internet at:

http://www.cjc.ny.gov/Pending.Proceedings/Holzman.htm

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2012/2012_01577.htm