Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

The Appellate Division affirmed the Unemployment Insurance Appeal Board’s decision that disqualified an applicant for unemployment insurance benefits based on its finding that, among other things, the applicant for such benefits had left his employment following misconduct unrelated to his work.

The applicant had resigned form his position "in lieu of termination" following his arrest on multiple counts of aggravated harassment* in connection with his allegedly having made harassing phone calls to various women in the course of activities “unrelated to his employment."

The Appeal Board had rejected the applicant’s claim that he was entitled to benefits because his termination “stemmed from activity unrelated to his employment.”

The Appellate Division ruled that "[m]isconduct committed during nonworking hours, which raises serious questions as to a worker['s] integrity, bears a relationship to his [or her] work within the meaning of . . . the Labor Law."

* The applicant ultimately entered a plead guilty to two of the charges filed against him, which were later reduced to harassment in the second degree.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02934.htm

OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”

OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”

OSHA has posted a new enforcement memo online focusing on "Employer Safety Incentive and Disincentive Policies and Practices".

According to the HRTraniningCenter.com, OSHA views as suspect any incentive or disciplinary programs linked to worker accidents resulting in injury or illness. In addition, OSHA may prosecute employers whose programs violate worker whistleblower rights under Section 11(c) of the Occupational Safety & Health Act of 1970.

A 90-minute training session via on the new rules via Audio Conferencing is being offered by HRTrainingCenter.com on April 24, 2012 from 1:00 to 2:30 p.m., Eastern Standard Time.

Additional information concerning this training session is available on the Internet at: http://hrtrainingcenter.com/showWCDetails.asp?TCID=1010681&RID=1010687

Disclosure of public information or records to one is disclosure to all

Disclosure of public information or records to one is disclosure to all

The basic rule when considering a Freedom of Information Law [FOIL] request is that the theory underlying FOIL is that all public documents are subject to disclosure.

The release of some public records, however, may be limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.

However, the custodian of the records may elect to deny access to documents otherwise subject FOIL absent a FOIL request or if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

Significantly, there is no bar to providing information pursuant to a FOIL request, or otherwise, even if it falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Indeed, a FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization world be required to file a FOIL request to obtain the information or record.

Further, it appears that once the information or record sought is provided to one party, it may not be denied to another party.

On this point the State’s Committee On Open Government advised a Town’s attorney that there was no legal basis to withhold the information requested pursuant to a newspaper’s FOIL request after it was disclosed to another newspaper.

In this instance Robert Freeman, the Committee’s Executive Director, stated that, in his view, “If a record is disclosed to one news media organization [by the custodian of the record]…it should be disclosed to any news media or for that matter any person requesting it.” Notwithstanding this advisory opinion, the Town’s attorney refused to supply the document demanded in the FOIL request submitted to the Town’s clerk.

Once possible exception: if the document demanded was provided pursuant to a court order or a subpoena, this may not constitute “disclosure” within Mr. Freeman’s meaning.

From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012

From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012

Please click on the caption to access report posted on the Internet.

DiNapoli: Syracuse Woman Sentenced for Stealing from the New York State Retirement System

Syracuse resident Kathleen Prince was sentenced last week in Onondaga County Court for stealing more than $29,000 from the New York State and Local Retirement System, marking the end of a joint investigation by State Comptroller Thomas P. DiNapoli and Onondaga County District Attorney William J. Fitzpatrick.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:

The Town of Batavia;

The Town of German Flatts;

The Village of Hammondsport;

The Village of Hempstead;

The Village of Ilion;

The Town of Lewisboro;

The Town of Orangeville;

The Round Lake Hose Company No. 1, Inc.; and,

The Town of Waverly.

The five most visited NYPPL posts during the week of April 13 through April 20, 2012 Click on title to access item.

The five most visited NYPPL posts during the week of April 13 through April 20, 2012

Click on the web site indicated to access item.


1. Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 

http://publicpersonnellaw.blogspot.com/2012/04/individuals-employed-by-governmental.html

2. A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer

http://publicpersonnellaw.blogspot.com/2012/03/member-of-board-testifying-at-civil.html

3. If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

http://publicpersonnellaw.blogspot.com/2012/04/individuals-employed-by-governmental.html

4. Some procedural defects that bar the vacating of the arbitrator’s award

http://publicpersonnellaw.blogspot.com/2012/04/some-procedural-defects-that-bar.html

5. Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

http://publicpersonnellaw.blogspot.com/2012/04/former-employees-law-suit-alleging.html

Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency

Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 

Filarsky v. Delia, USSC, No. 10–1018

Is an individual hired by a government agency to do its work ineligible to claim a qualified immunity in the event he or she is sued for some act or omission related to the service he or she is providing the government agency solely because he or she serves with the agency other than on a permanent or full-time basis?

The Court of Appeals for the Ninth Circuit concluded that a “private attorney,” because he or she was not a City employ­ee, was not entitled to claim the protection of a qualified immunity. The United States Supreme Court disagreed.

In this case, said the court, there was no dispute that qualified immunity was available the individuals employed by the jurisdiction as an employer and the 9th Circuit Court of Appeals granted this protection to the jurisdiction’s employees. It, however, denied such protection to the “private attorney” working with the public officials “because he was not a public employee but was instead a private individual ‘retained by the City to participate in internal affairs investigations.’”

The court said that in de­termining whether this distinction is valid, it considered the “general principles of tort immunities and defenses” appli­cable at common law, and the reasons the court earlier afforded such protection from lawsuit under 42 USC §1983.

The Supreme Court’s conclusion: While not a public em­ployee, Steve A. Filarsky, Esq., the private attorney, was retained by the City to assist in conducting an official investigation into potential wrong­doing. The court said that there was no dispute that government employees performing such work were entitled to seek the protection of qualified immunity. The common law does not draw any distinction between a public employee and a private attorney in this regard.

Noting that New York City has a Department of Investigation staffed by full-time public employees who investigate city personnel, and the resources to pay for it, the Supreme Court said “The City of Rialto [California] has neither, and so must rely on the occasional services of private individuals such as Mr. Filarsky. There is no reason Rialto’s internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York.”*

Justice Ginsburg, in her concurring opinion cautioned that the claim of "Qualified immunity may be overcome, however, if the defendant knew or should have known that his [or her] con­duct violated a right ‘clearly established’ at the time of the episode in suit," citing Harlow v. Fitzgerald, 457 U.S. 800.

The Supreme Court revered the 9^th Circuit’s judgment denying qualified immunity to Mr. Filarsky.

*N.B. Citing Richardson v. McKnight, 521 U. S. 399, the Supreme Court noted that “This does not mean that a private individual may assert qualified immunity only when working in close coordina­tion with government employees.” Such immunity also available to others acting on behalf of the government and similarly serves to “ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.” However, Justice Sotomayor, in her concurring opinion, commented “… it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983. Such individuals must satisfy [the court’s] usual test for conferring immunity.”

The decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/10-1018.pdf

Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination

Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination

The Appellate Division held that an arbitration award that resulted in the termination of the employee was made in accordance with due process; was supported by adequate evidence; and was rational and not arbitrary and capricious.

Citing Gray v Adduci, 73 NY2d 741, the court noted that "[h]earsay evidence can be the basis of an administrative determination." 

In addition, the Appellate Division said that unsworn testimony by witnesses to the incidents that led to the filing of disciplinary charges and the employee’s own testimony acknowledged the incidents, while offering differing exculpatory accounts thereof, supported the hearing officer’s determination.

As to the penalty imposed, termination, the court said that it did not find dismissal “so disproportionate to the multiple specifications upheld [the employee] with verbal and physical abuse of students and faculty members as to shock our sense of fairness, even considering the mitigating factors of [the employee’s] recurrent health issues.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02802.htm

Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations

Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations

This decision by the Appellate Division demonstrates that administrative due process applies in cases where a prisoner is charged with alleged misconduct and a disciplinary proceeding is conducted.

In this instance a prisoner was found guilty of certain alleged offences and a penalty of 90 days in solitary confinement and restitution of $100 was imposed. The individual appealed.

The Appellate Division, reversing a lower court’s ruling to the contrary, granted the prisoner’s petition and [1] annulled the determination of the hearing officer, [2] dismissed the charges against the individual and [3] directed the New York City Department of Correction “to expunge all references to the charges from [the individual’s] institutional records.”

The court found that hearing officer failed to provide accused with a written statement summarizing the testimony of three witnesses who testified in his favor and failed to state her reasons for rejecting the testimony of those witnesses and of the accused, in violation of relevant directives of the New York City Department of Correction. The Appellate Division said that the agency “is required to comply with its own regulation.”

Considering a procedural issue, the Appellate Division held that although the Department contended that the prisoner had failed to exhaust his administrative remedies, it would not consider that defense because the Department had failed to raise that claim it its answer.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02947.htm

Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration

Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration

In the Matter of the Arbitration between the Village of Horseheads and the Horseheads Police Benevolent Assn., Inc., 2012 NY Slip Op 02543, Appellate Division, Third Department

The Appellate Division, affirming a lower court’s ruling, said that the role of the court in reviewing an application to stay arbitration is limited. In determining if a particular grievance is subject to arbitration, the court must first determine if the parties may lawfully arbitrate the underlying dispute and, if so, whether they did in fact agree to so arbitrate the issue.

In this instance the Village of Horseheads did not contend that there was a statutory, constitutional or public policy prohibition against arbitrating this particular grievance. Accordingly, the sole issue for the court to determine was whether or not the parties, in accordance with the terms of the collective bargaining agreement, agreed to arbitrate the grievance presented by the Police Benevolent Association.

The relevant collective bargaining provision, said the court, defined a grievance as "any claimed violation, misinterpretation or inequitable application of existing laws, rules, procedures, regulations, application or enforcement of the terms of this agreement, administrative orders or work orders or rules of [the Village]."
Whether the Village’s action constituted an actual violation of a rule or regulation "goes to the merits of the grievance [itself], not to its arbitrability," said the court. Accordingly, this was an issue for the arbitrator to resolve.

In contrast, the Appellate Division emphasized that “For purposes of [its] limited inquiry, it [was] sufficient that [the Association had] asserted a ‘claimed violation’ of certain rules and regulations and that a ‘claimed violation’ is, in turn, subject to the grievance procedure set forth in the CBA “

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02543.htm

Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement

Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement

The police commissioner terminated a police officer after he was found guilty of official misconduct and violations of the Police Department Patrol Guide.

The Appellate Division annulled the commissioner’s action after dismissing certain specifications and remanded the matter the commissioner “for a determination of a new penalty on the remaining specifications.” Although the court found that there was no substantial evidence to prove the specifications that it had dismissed, it, in contrast, said that the “remaining specifications” were supported by substantial evidence.

However, the Appellate Division also said that “If the Commissioner sees fit to adhere to the penalty of termination,” the police officer "should be permitted to apply for a vested interest retirement."

Although the court acknowledged that the commissioner's penalty determination “is deserving of due deference,” it explained that it was also mindful of the fact that courts "cannot operate merely as a rubber stamp of the administrative determination if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.”

Characterizing the police officer’s misconduct  “an aberration from his otherwise exemplary career over approximately two decades,” and that termination would work an extreme hardship on the officer’s innocent family, the Appellate Division, Judge Sweeny dissenting, concluded that “[u]nder these circumstances, even in light of the repellent behavior exhibited by [the officer], the deprivation of his retirement benefits is shocking to one's sense of fairness, citing the Pell Doctrine [Matter of Pell, 34 NY2d at 233].

N.B. The Administrative Code of the City of New York provides that an employee may forfeit his or her retirement allowance under certain circumstances. For example, Section 13-173.1 of the Administrative Code requires a sanitation member to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the member is not "in service" on that date, he or she forfeits his or her retirement benefits.The Court of Appeals addressed the provisions of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02787.htm

Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

A court clerk was terminated by the town justice. The next day the town justice appeared at a special meeting of the Town Board to discuss the clerk’s termination and to request approval to hire a replacement court clerk.

The former town clerk then sued the town justice and the Town alledging that defamatory statements concerning her work and qualifications were recorded in the minutes of the Town Board’s special meeting and the minutes, that were later approved, were posted on the Town's Web site.*

Although the Appellate Division held that Supreme Court erred in dismissing the slander cause of action filed by the former court clerk against the town justice as untimely,** it held that the lower court had correctly determined that all of the statements the former court clerk alleged to be defamatory were either [1] opinion; [2] not directed at former court clerk; or [3] needed extrinsic facts to make them defamatory.

Thus, concluded the court, Supreme Court “correctly determined that the statements were not defamatory as a matter of law” and dismissed the complaint.

* See Public Officers Law §106

** The Appellate Division observed that if the town justice was acting solely on his or her own behalf, the Town would not be liable for his or her actions and the CPLR §215[3]’s one-year statute of limitations would apply to the cause of action. In contrast, if the town justice was acting within the scope of his or her employment with the Town, the Town may be liable for his or her conduct and would thus be the real party in interest; and under those circumstances the provisions set out in General Municipal Law §50-i would control.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02546.htm

Some procedural defects that bar the vacating of the arbitrator’s award

Some procedural defects that bar the vacating of the arbitrator’s award
Beals v New York City Transit Authority, 2012 NY Slip Op 02784, Appellate Division, First Department

The Beals decision by the Appellate Division, First Department, sets out a number of procedural defects that defeated the employee’s efforts to vacate an adverse arbitration award.

First, said the Appellate Division, the arbitrator “properly declined” to apply the collective bargaining agreement's statute of limitations for filing disciplinary charges as, pursuant to its terms, the statute of limitations did not commence to run while an investigation of the conduct leading to the disciplinary charges against employee was under way. Further, said the court, “any error by the arbitrator in interpreting the facts or applying the law on this issue did not provide a basis for vacatur of the award.”

Other procedural defects noted by the Appellate Division barring granting the employee’s petition seeking to the vacate the award in this instance included:

1. An individual waives his or her claims that the arbitrator should have enforced his or her witness subpoenas by failing to seek a stay of the arbitration and a court ruling compelling compliance and by continuing with the arbitration;

2. An arbitrator's erroneous evidentiary rulings with may support vacatur only if the evidence would have been pertinent and material; and

3. The employee’s failure to cite any provision in the collective bargaining agreement to support his or her contention that the arbitrator exceeded a restriction on his or her power.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02784.htm

Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect

Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect

This ruling by the Commissioner of Education again illustrates the fact that the failure to strictly comply with the filing requirements set out in Commissioner’s regulation will preclude the Commissioner’s considering the merits of the petition or appeal. 

Petitioners had withdrawn one aspect of their appeal, conceding that it was moot.

The School District then asked the Commissioner to dismiss the “surviving” elements of their petition, which sought the removal of a member of the school board. The school board contended that these claims should be dismissed because the petitioners had failed to include the notice required by 8 NYCRR §277.1(b) in such cases in their petition.  

The Commissioner agreed, ruling that the application seeking the removal of a school board member “must be dismissed because the notice of petition is defective.”

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

  

The bottom line: A notice of petition which fails to contain the language required by the Commissioner’s controlling regulation is fatally defective and does not secure jurisdiction over the intended respondent.

The Commissioner’s decision, Decision #16,346, is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16346.html

From the Office of New York State Comptroller Thomas P. DiNapoli

From the Office of New York State Comptroller Thomas P. DiNapoli
Audits and reports issued during the period April 9 - 15, 2012 

DiNapoli: Audit Reveals Alleged Procurement Improprieties at SUNY Downstate Medical Center

An audit spurred by anonymous tips revealed fake bids for construction contracts and other procurement problems at SUNY Downstate Medical Center, according to New York State Comptroller Thomas P. DiNapoli. Findings of the audit have been referred to the Joint Commission on Public Ethics.


NYSHIP Contractors Wasting Millions in Taxpayer Money

The New York State Health Insurance Program erroneously paid as much as $11 million for special items such as implants, drugs and blood and evaluation procedures that were not performed according to two audits released Wednesday by State Comptroller Thomas P. DiNapoli.


Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced this week the following audits have been issued: the Department of Health and the Office of Children and Family Services.


DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Village of Amityviller; the Village of Bloomingburg; the Carl Place Garbage District; the Town of Copake; the Town of Galway; and, the Massapequa Fire District.

Use of hearsay evidence in an administrative disciplinary action

Use of hearsay evidence in an administrative disciplinary action

Does hearsay evidence constitute “adequate evidence” for the purposes of sustaining disciplinary charges? In this action the Appellate Division found that it did.

Hearsay evidence, said the court, can be the basis of an administrative determination and, “if sufficiently probative, it alone may constitute substantial evidence," citing Matter of Café La China Corp. v New York State Liq. Auth., 43 AD3d 280, quoting Matter of Gray v Adduci, 73 NY2d 741. According, said the court, a hearing officer could base his or her finding the individual guilty of the charges on such hearsay evidence.

The standard applied by the Appellate Division: Education Law § 3020-a (5) provides that a court's review of an application to vacate or modify the decision of a hearing officer is limited to the grounds set forth in CPLR 7511, the provision pertaining to review of arbitrators' awards. It is now established, however, that, because §3020-a hearings are compulsory, the hearing officer's "`determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.'"

However, in this instance, although the hearing officer’s finding that the employee was guilty, the Appellate Division ruled that the penalty imposed, termination, had to be vacated and the matter remanded to a different hearing officer for the imposition of the penalty to be imposed “on the basis of the administrative record of the hearing.”

The court said that “It is a fundamental principle of due process that ‘`no person may lose substantial rights because of wrongdoing shown by the evidence but not charged, [and where that principle is violated,] prejudice will be presumed.`"

Accordingly, said the Appellate Division, the Hearing Officer's decision imposing the penalty of termination cannot stand, because it appears to be based, in significant part, on evidence of wrongdoing that was not charged.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_50606.htm