Voluntary separation to avoid discipline disqualifies employee for unemployment insurance benefits

Voluntary separation to avoid discipline disqualifies employee for unemployment insurance benefits

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2012, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Kean v. Commissioner of Labor, ___A.D.3d___(3d Dep't. March 15, 2012), is an interesting case as it discusses voluntary separations in relation to entitlement to unemployment. As the court explains:

 "Voluntarily separating from one's employment to accept a severance or early retirement package when continuing work remains available has been held not to constitute good cause for leaving employment" (Matter of Lucht [Commissioner of Labor], 49 AD3d 1048, 1049 [2008]; see Matter of Cammisa [Commissioner of Labor], 38 AD3d 1146 [2007]). Here, claimant testified that she was capable of working, had not been threatened by her employer and had not been advised by a physician to leave her job.

Even if claimant quit because she assumed that she might be terminated in the future, leaving a job in anticipation of discharge is not considered to be a departure for good cause under these circumstances (see Matter of Carcaterra [Association for Computing Machinery, Inc.—Commissioner of Labor], 90 AD3d 1389, 1390 [2011]).

Inasmuch as there is substantial evidence supporting the Board's ruling, it will not be disturbed (see Matter of Cammisa [Commissioner of Labor], 38 AD3d at 1146).

NYPPL comments:

N.B. Submitting a resignation in anticipation of, or in lieu or settlement of, a disciplinary action may have other unintended consequences. For example, typically applications for competitive examination for  employment with the State or a political subdivision of the State include the following questions:

Yes [ ] No [ ]  Were you ever discharged from any employment except for lack of work for funds, disability or medical condition?

Yes [ ] No [ ]  Did you ever resign from any employment rather than face discharge?

If you answered YES to any of these questions, provide details under REMARKS on Page 3. Your failure to answer any of these questions or to provide details will significantly delay any determination concerning your qualifications and may deprive you of potential employment opportunities.

The State Department of Civil Service or a local civil service commission may disqualify an individual seeking an appointment to a position in competitive class of the classified service pursuant to Civil Service Law §50.4 subdivisions (e), (f) or (g), which subdivisions are set out below:

(e) who has been dismissed from a permanent position in the public service upon stated written charges of incompetency or misconduct, after an opportunity to answer such charges in writing, or who has resigned from, or whose service has otherwise been terminated in, a permanent or temporary position in the public service, where it is found after appropriate investigation or inquiry that such resignation or termination resulted from his incompetency or misconduct, provided, that in cases of dismissal, resignation or termination after written charges of incompetency, the examination or certification in question be for a position that requires the performance of a duty or duties which are the same as or similar to the duty or duties of the position from which the applicant has been dismissed, resigned or terminated on account of incompetency; [emphasis supplied] or

(f)  who has intentionally made a false statement of any material fact in his application; or

(g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01845.htm

Board of Education’s decision concerning the discontinuing of the services of the school superintendent sustained by the Commissioner of Education

Board of Education’s decision concerning the discontinuing of the services of the school superintendent sustained by the Commissioner of Education

Decision of the Commissioner of Education, Decision No. 16,352

The contract of employment between the school board and its superintendent included a provision entitled “Termination” wherein it provided that the employment relationship between the superintendent and the board could be terminated for any of the following reasons:

1. Disability of the superintendent;

2. Written resignation of the superintendent;

3. Termination upon agreement; or

4. Discharge for cause.

When the board and the superintendent entered into an agreement entitled “Separation Agreement, Release and Waiver” providing for a payment of $89,500 in full satisfaction of the district’s financial obligations to the superintendent and the superintendent’s agreement to resign from the position and forfeit all claims against the District, an individual filed an appeal with the Commissioner of Education challenging the execution of such an agreement.

Essentially the appeal argued that the superintendent should be terminated for cause without compensation, alleging various acts of misconduct on the part of the Superintendent. 

In addition, the appeal alleged that the Board “wilfully neglected its duty and misused district funds by offering to buy out the superintendent’s employment contract and by failing to investigate [the petitioner's] allegations and take corrective action.” The redress requested: the Commissioner should remove members of the Board from their positions and appoint a new board to serve until a special election is held and appoint or oversee the process to appoint a new superintendent.

After noting a number of procedural omissions requiring dismissal of certain allegations advanced by the individual, the Commissioner turned to turn to the merits of the remaining claims.

Citing Education Law §§1709(13) and (33), and 1804(1), the Commissioner said that a board of education has broad powers “concerning the superintendence, management, and control of a central school district.” In addition, noted the Commissioner, “a board of education has the authority to enter into an employment contract with a superintendent including provisions regarding termination, citing Education Law §§1711 and 1804[1]. 

Finding that in this instance the Board had entered into an employment agreement with the Superintendent that contained several options with respect to termination, the Commissioner dismissed the appeal commenting that “I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable law.”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. 

The Commissioner decided that “On the record before me, petitioner has failed to meet her burden,” explaining that “The terms of the contract specifically permit termination by mutual agreement, and [the Board’s] answer indicates that [the Board] carefully considered the issues, including weighing the costs of discharge for cause versus a negotiated agreement.”

Although the Commissioner noted that the petitioner disagreed with the Board’s decision not to dismiss the superintendent for cause, the Commissioner said that “she has submitted no reply to refute the board’s statements that it reviewed its options and determined that a separation agreement was more responsible than a protracted dismissal for cause” and dismissed the appeal."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16352.html

Volunteer firefighter injured while engaged in the Fire District’s program to maintain his or her ability to perform his or her duties compensable under the Volunteer Firefighters' Benefits Law

Volunteer firefighter injured while engaged in the Fire District’s program to maintain his or her ability to perform his or her duties compensable under the Volunteer Firefighters' Benefits Law

All volunteer firefighters and emergency medical technicians in the Volunteer Fire District were informed that the swine flu vaccine was going to be provided for them at a designated clinic. One firefighter/EMT was refused the vaccine at that clinic but subsequently went to different clinic to receive her flu shot. Returning home, the firefighter/EMT was involved in a one-car accident that resulted in multiple injuries.

The individual filed a claim for benefits available pursuant to the Volunteer Firefighters Law and a hearing was held to determine whether her claim fell within the provisions of the Act. Ultimately, the Workers' Compensation Board determined that her injuries were incurred while she was engaged in an activity covered by the law and awarded her benefits. The District and its workers' compensation carrier appealed.

The Appellate Division affirmed the Board’s determination, explaining: “[W]hether a given activity of a volunteer fire fighter falls within the line of duty is a question of statutory construction particularly within the Board's expertise.” In this instance the Board found that injuries suffered by the firefighter/EMT were compensable pursuant to Volunteer Firefighters' Benefit Law §5(1)(p).

§5(1)(p). covers individuals participating in a "supervised physical fitness class, group session or program for the purpose of promoting or maintaining the performance of their duties as firefighters, as well as necessary travel to and necessary travel from such activity."

Here, said the court, the record demonstrates that “the District, at the very least, strongly encouraged EMTs to receive the swine flu vaccination and made arrangements for them to receive the vaccine at no cost.” Under these circumstances, the Appellate Division found that the Board could reasonably conclude that individual's injuries were sustained pursuant to her participation in a program to maintain the performance of her duties and, thus, its determination was supported by substantial evidence

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03920.htm

Filing of an amicus brief with PERB

Filing of an amicus brief with PERB

Selected Rulings posted by PERB  – Matter of the County of Suffolk, Decision U-28610

The Board granted motions by the Police Conference of New York and the Suffolk County Police Conference to file amicus briefs* with respect to exceptions from an ALJ decision dismissing a charge alleging that the County of Suffolk violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred supervisory police duties previously performed on the Long Island Expressway and Sunrise Highway by the members of the Supervisor Officers’ Association of the Police Department of the County of Suffolk. 

* This decision reflects PERB’s view that an amicus brief may be valuable during consideration of pending exceptions. 

Failing to provide for the timely removal of a contested writing from an employee's personnel file or record is not fatal to filing §3020-a charges against the employee

Failing to provide for the timely removal of a contested writing from an employee's personnel file or record is not fatal to filing §3020-a charges against the employee

The arbitrator found a New York City school teacher guilty of various specifications filed against her pursuant to §3020-a of the Education Law. The penalty imposed: a four months' suspension of employment without pay and benefits.

Supreme Court denied a New York City school teacher’s petition seeking to vacate a post-hearing arbitration award brought pursuant to Education Law §3020-a(5) and CPLR 7511, unanimously affirmed, without costs.

In affirming the lower court’s ruling, the Appellate Division said that the arbitration award had been made in accord with due process and was not arbitrary and capricious, irrational, or lacking in evidentiary support, citing City School District v McGraham, 17 NY3d 917.

In response to the teacher’s challenge to the award on the theory that the New York City Department of Education [DOE] had failed to meet the time requirements set forth in Article 21(C)(3) of the collective bargaining agreement, the Appellate Division said the even if DOE had failed to comply with such time requirements “dismissal of the disciplinary charges against the educator was not required.

Article 21(C)(3), explained the court, “merely provides for the removal of a contested writing from an employee's personnel file or record in the event the procedural requirements of the Article are not followed.” Accordingly, such a defect “does not preclude the filing of formal disciplinary charges pursuant to Education Law §3020-a.”

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that “The penalty imposed does not shock our sense of fairness,” and dismissed the educator’s appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03879.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1528 page e-book. For details click on http://thedisciplinebook.blogspot.com/

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Terminated probationer not entitled to a pre-termination hearing

Terminated probationer not entitled to a pre-termination hearing

The Appellate Division affirmed a Supreme Court’s ruling dismissing an Article 78 petition filed by a former employee challenging his termination from his position during his probationary period.

In dismissing the former employee’s appeal the Appellate Division said that “It is well-settled that a probationary employee may be discharged without a hearing and without a statement of reasons, in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of law, citing Swinton v Safir, 93 NY2d 758.

In this instance, said the court, evidence in the record regarding the individual’s unsatisfactory completion of his duties provide a rational basis for the employer’s determination, “particularly since petitioner received ample opportunity to improve.”

As there was nothing substantial in the former employee’s allegations purporting to show bad fait, the Appellate Davison held that no hearing was required and the petition was properly denied by Supreme Court.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03875.htm

 

NYC police officer forfeited his pension benefits following his removal from his position pursuant to Public Officers Law §30.1(e)

A police officer was one of five committee members responsible for receiving applications and making recommendations to the New York City Police Department [NYCPD] Contract Administration Unit regarding contract bids submitted by entities seeking to care for retired NYPD horses.

Among the specification was one that required that the facility consist of at least 30 acres. A friend of the police officer was one of the entities that submitted a bid. However, although the bid filed by the police officer’s friend claimed that the facility had 35 acres of land, it, in fact, it had only 19 acres. The police officer recommended that his friend’s facility be awarded a contract and ultimately the Contract Administration Unit awarded a contract in the amount of about $2.5 million to the police officer’s friend.

Both the police officer and the bidder were arrested and both pled guilty to one count of Offering a False Instrument for Filing in the Second Degree, a Class A misdemeanor. (Penal Law §175.30). As a result, the police officer was terminated from his position by operation of law pursuant to Public Officers Law §30.1(e), Justice Stallman held that the police officer was (1) not entitled to a pre-termination hearing nor (2) was he was eligible to retire and collect his pension.

In the words of Justice Stallman: [The police officer’] conviction by guilty plea automatically caused his office to become vacant because his crime constituted a violation of his oath of office. [The Police Commissioner’s] recognition of {the officer’s] automatic termination was neither arbitrary nor capricious, nor in violation of law

Addressing another aspect of the police officer’s loss of his pension benefits, Justice Stallman noted that “formal departmental disciplinary charges” had been filed against the police officer and that the officer and the Department had agreed to a "Negotiated Settlement" which stated, in pertinent part:

"I understand that if this Negotiated Settlement is approved by the Police Commissioner, the penalty against me will be as follows:

I shall forfeit all time, pay, and benefits for the period while under suspension … and agrees to immediately file for SERVICE RETIREMENT. Respondent will not file for SERVICE RETIREMENT unless and until this Negotiated Settlement is approved by the Police Commissioner ….”

The Negotiated Settlement also contained the following statement: "NOTE: THIS AGREEMENT IS SUBJECT TO APPROVAL OF THE POLICE COMMISSIONER.”

Although the NYPD Department Advocate recommended approval of the negotiated plea agreement, which was endorsed by the Department’s First Deputy Commissioner, the Police Commissioner disapproved the negotiated plea.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22132.htm

Unilateral modification of a past practice

Unilateral modification of a past practice

Selected Rulings posted by PERB - Matter of the Board of Education of the City School District of the City of New York, Decision U-28706

PERB affirmed a decision of an ALJ finding that the Board of Education of the City School District of the City of New York violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it unilaterally modified a past practice by reducing the number of annual parking permits issued to Local 891-represented unit members, and by changing the method of distribution of the permits.

PERB held that free parking is a mandatory subject of negotiations because it is an economic benefit to the employees and that the distribution of parking permits is also mandatorily negotiable. It also affirmed the ALJ’s conclusion that the District unilaterally reduced the number of parking permits issued to Local 891-represented unit members and changed the existing practice of distributing parking permits upon request to unit members.

Termination without notice or hearing by operation of law

Termination without notice or hearing by operation of law

Supreme Court, New York County, dismissed an Article 78 petition seeking to annul the termination of New York City Department of Corrections correction officer without notice or hearing or, in the alternative, an order compelling the Corrections Department to conduct an evidentiary hearing. The Appellate Division unanimously affirmed the lower court’s ruling.

According to the decision, the correction officer had pleaded guilty in Pennsylvania to stalking, a first degree misdemeanor under Pennsylvania law. The Department of Corrections had terminated him pursuant to Public Officers Law §30(1)(e), deeming that the correction officer had been terminated “by operation of law” by reason of his conviction of the misdemeanor in Pennsylvania.

Public Officers Law §30(1)(e) provides that a public office automatically becomes vacant upon the officeholder's conviction of a felony, or a crime involving a violation of his or her oath of office.

The Appellate Division held that the correction officer’s Pennsylvania conviction involved a violation of his oath of office and thus his office automatically became vacant by operation of law pursuant to §30(1)(e), resulting in his lawful termination from his postion without notice and hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03871.htm

Employer has the burden of proof that a disability prevents the employee from reasonably performing the functions and duties of the position

Employer has the burden of proof that a disability prevents the employee from reasonably performing the functions and duties of the position
Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 57 AD3d 1057

New York State Correction Officer Edward J. Rice suffered a heart attack that resulted in the implantation of stents and a defibrillator in his chest. Although Rice was cleared for duty without restriction by his cardiologist, Corrections placed him on involuntary leave until November 2005, at which time it terminated Rice's employment on the basis that he "ha[d] been continuously absent" and "unable to perform the duties of his position for more than one year" as a result of a disability pursuant to Civil Service Law §73.

Rice filed a complaint with the State’s Division of Human Rights (SDHR), alleging that Corrections had engaged in an unlawful discriminatory practice by terminating his employment due to a disability.

Although a SDHR Administrative Law Judge determined that Rice had failed to establish that he was fit to perform the essential duties of a correction officer and, thus, Corrections had not improperly terminated his employment, the Commissioner of Human Rights concluded that Corrections had, in fact, engaged in an unlawful discriminatory practice by terminating Rice's employment.

The Commissioner awarded Rice back pay, as well as damages for emotional pain and suffering.

Corrections appealed, but the Appellate Division said that Corrections could not terminate Rice’s employment on the basis of his disability unless it proved that the disability prevented him from reasonably performing the functions and duties of a correction officer.

In support of the determination that Corrections had engaged in an unlawful discriminatory practice by terminating Rice's employment on the basis of his disability, SDHR relied upon, among other things, the reports of Rice's treating cardiologists, as well as the original report of the physician who performed an independent medical examination for petitioner, that Rice was capable of returning to work without any restriction.

In contrast, SDHR found that the reports of Correction's medical examiner that Rice was unable to function as a correction officer due to the possibility of a physical confrontation with an inmate damaging his defibrillator were insufficient to support the termination of his employment inasmuch as “the identified risk was speculative and hypothetical in nature.”

Finally, said the court, the fact that Rice's application for, and receipt of, Social Security disability insurance benefits subsequent to the termination of his employment does not, as a matter of law, preclude a finding that Corrections had unlawfully discriminated against Rice.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09517.htm

Characterizing a complaint as a violation of civil service rules does not avoid having to seek relief pursuant to the contract grievance procedure

Characterizing a complaint as a violation of civil service rules does not avoid having to seek relief pursuant to the contract grievance procedure
Montgomery County Deputy Sheriff's Assn., Inc. v County of Montgomery, 57 AD3d 1061

Cathy Anderson and Grace De Waal Malefyt each worked for a period of time in the title of "part-time" correction officer in Montgomery County. During their respective periods of employment in the title of part-time correction officer, both voluntarily and regularly “worked in excess of 20 hours per week and, in fact, in excess of 40 hours per week” without complaint nor did the Association ever file complaints on their behalf or sought to obtain additional compensation or benefits for them during this period.

Anderson and Waal Malefyt were appointed "full time" correction officers in 2000 and 2003 respectively.

In March 2004, the Association sued, seeking monetary relief in the form of retroactive benefits under the collective bargaining agreement. Supreme Court granted the County’s motion for summary judgment and dismissed the action.

In addressing the Association’s appeal from the dismissal of its petition by Supreme Court, the Appellate Division ruled that “Having failed to avail themselves of the grievance procedures outlined under the very collective bargaining agreement on which they now rely for monetary relief, [Anderson and Waal Malefyt] and the Association failed to exhaust administrative remedies and are precluded from pursuing this action.”

The Appellate Division noted that in an effort to avoid the rejection of its appeal because of the failure to exhaust administrative remedies, Anderson and Waal Malefyt and the Association try to disavow their reliance on the collective bargaining agreement by claiming that “they are not seeking to enforce the collective bargaining agreement but, rather, are alleging a violation of the County Civil Service Rules and Regulations.”

The court said that the petition filed in Supreme Court “belies this notion” as it clearly alleged that County defendants “have breached the terms of the collective bargaining agreement . . . in that they, as [j]oint [e]mployers, denied [p]laintiffs . . . benefits afforded by the collective bargaining agreement to full-time employees while holding the title of ‘[p]art-time [c]orrection [o]fficer’” and “denied the benefits contained in the collective bargaining agreement, including, but not limited to longevity, health insurance, vacation leave, holiday pay, sick leave, personal time, and increased wages.”

Thus, said the Appellate Division, it is clear that the true nature of this action is for breach of contract. Further, said the court, “even if we were to view the complaint as simply alleging a violation of the County Civil Service Rules and Regulations,” the result would be the same “as the monetary remedy for this perceived violation is still being sought under the auspices of the collective bargaining agreement, thus leading to the same result; namely, that [Anderson and Waal Malefyt] and the Association were still required to avail themselves of the grievance and arbitration procedures outlined under the agreement with the failure to do so being fatal to the requested relief.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09519.htm

Custodian-helpers hired by Custodian-engineers employed by the NYC Department of Education are not “building service employees” within the meaning of the Labor Law

Custodian-helpers hired by Custodian-enginers employed by the NYC Department of Education are not “building service employees” within the meaning of the Labor Law
Brown v Liu, 2012 NY Slip Op 03567, Appellate Division, First Department

Supreme Court dismissed an Article 78 petition seeking an investigation of wage complaints filed by certain members of Local 94 serving as "custodian-helpers" employed New York City Department of Education [DOE] "custodian-engineers.". The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The Appellate Division explained that as the union members involved served as “custodian-helpers,” they were not entitled to the prevailing wage and benefits protection under Labor Law Article 9.* Such is the case because under the "indirect system" of custodial care, the DOE employs custodian-engineers in accordance with civil service regulations. These custodian-engineers, in turn, may employ custodian-helpers.

Indeed, the relevant collective bargaining agreement for the custodian-engineers' provides that they are employees of the DOE. 

Thus, said the court, the custodian-engineers are not "contractors" and the custodian-helpers employed by them are not "building service employees" of DOE’s custodian-engineers as those terms are defined in Labor Law §230.

* Article 9 of the Labor Law is captioned “Prevailing Wage For Building Service Employees.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03567.htm

Legislative approval of a grievance settlement that does not change the terms and conditions of controlling Taylor Law contract is not required

Legislative approval of a grievance settlement that does not change the terms and conditions of controlling Taylor Law contract is not required
Patrolmen's Benevolent Assn. of City of Long Beach, Inc. v City of Long Beach, 57 AD3d 499

This litigation involved efforts by the Patrolmen's Benevolent Association [PBA] to enforce three stipulations executed by the parties in settlement of three grievances initiated by the PBA pursuant to the terms of its collective bargaining agreement with the City of Long Beach. The three grievances initiated by the PBA on behalf of its members concerned sick leave retirement computations, night differential pay calculations, and a disciplinary action that had been brought against 17 of its members.

In response to the PBA’s inquiry concerning the City's compliance with the terms of one of the settlement agreements, the City indicated that it regarded all three underlying grievances as still pending. The reason offered by the City in support of its views: The City Council had never approved the settlements and thus they were not binding on the parties.

The PBA, seeking to enforce the terms of the stipulations and agreements, sued and won a decision by Supreme Court holding the stipulations and agreements were legally binding and enforceable as between the parties. The City was directed by Supreme Court to abide by the terms of the settlement agreements. Long Beach appealed, only to have the Appellate Division affirm the Supreme Court’s ruling.

As to the City’s claim that approval by the City Council was required to bind the parties, the Appellate Division said that the Court of Appeals in Board of Education for City School District of City of Buffalo v Buffalo Teachers Federation, 89 NY2d 370, made it clear that “the Taylor Law does not by its terms 'vary or extend the instances in which legislative approval is necessary and does not create a necessity for action by a legislative body where it does not otherwise exist.'" Here, said the court, Long Beach "has not identified any further legislative action that it must perform under the pertinent statutes" as a condition to the approval of the three stipulations settling the PBA’s grievances.

The Appellate Division also noted the past practice of the parties of executing similar stipulations resolving PBA grievances by the City Manager and the President of the PBA without any need for City Council ratification.

Further, the decision notes, the stipulations and agreements involved do not alter or amend the language of the controlling collective bargaining agreement so as to trigger the need for legislative approval. Rather, said the court, “they represented agreements between the parties on how they would interpret certain CBA provisions.” Therefore, “no City Council approval was needed in order for the stipulations and agreements to bind the parties.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09573.htm

Public employees and the First Amendment right to free speech

Public employees and the First Amendment right to free speech
Thomas v City of Blanchard, 548 F.3d 1317

In considering a public employee’s claim that his or her First Amendment right to free speech has been compromised by his or her public employer, courts distinguish between the employee’s speech in terms of the vindication of a personal interest and the vindication of a public interest.

Another arena in which an employee may contend that his or her employer’s actions are violative of the employee’s free speech are tested in terms of whether the speech concerned the employee’s official duties or a public interest.

The latter was the issue in the Thomas case: Was Thomas’s report to the Oklahoma State Bureau of Investigation (OSBI) made pursuant to his professional duties and therefore outside the scope of First Amendment protections within the meaning of Garcetti v Ceballos, 547 U.S. 410, or was his speech a matter of public interest and thus protected by the First Amendment?

Ira Thomas was fired from his job as building code inspector for the City of Blanchard, Oklahoma, after he discovered a signed and completed certificate of occupancy for a home constructed by a local builder — who was also the mayor — in the City Clerk’s office although Thomas had neither made the final inspection of the home nor approved issuance of the certificate.

In the words of the Tenth Circuit, “Suspecting illegality, Mr. Thomas responded forcefully (and maybe even inappropriately; that is a disputed issue) by storming into a meeting to denounce the certificate, shouting at the City Clerk, threatening to report the matter to the OSBI and eventually following through on the threat.”

Subsequently terminated from his position, Thomas sued the City and various city officials, including the mayor, claiming his discharge was in retaliation for his exercising his right to free speech — primarily, his reporting the matter to the OSBI — and therefore in violation of the Free Speech Clause of the First Amendment.

The Circuit Court decided that Thomas’s search was not made pursuant to his professional duties and thus was constitutionally protected. Citing its decision in Casey v. West Las Vegas Independent School District, 473 F.3d 1323, the court concluded that ala Casey, "Thomas was not satisfied that the city’s officials would report the fraud to the authorities, so he 'took his grievance elsewhere' — that is, to the OSBI.”

The court then considered a number of additional relevant issues including (1) whether the government’s interest outweighed the employee’s free speech rights and (2) whether the speech was a motivating factor in the discharge.

As to whether Thomas’s speech was a matter of public concern, the Circuit Court of Appeals concluded that although this issue was raised for the first time in this appeal, speech about possible illegality or pressure by the mayor would count as a matter of public concern.

Addressing whether city’s interest as employer in promoting the efficiency of the services it performs outweighs the employee’s interest in his speech, the court said that for the purposes of this test, the question is not whether the plaintiff’s speech was accompanied by disruptive behavior or made in a disruptive manner, but whether the government’s legitimate interests provide a sufficient justification for controlling Thomas’s message.

The decision also addresses other significant issues concerning the rights and limitations concerning the exercise of “free speech” by a public employee.

The full text of the decision is posted on the Internet at:
http://www.ca10.uscourts.gov/opinions/07/07-6197.pdf

Designating a beneficiary typically will result a reduction of the individual’s retirement allowance otherwise payable before such a designation

Designating a beneficiary typically will result a reduction of the individual’s retirement allowance otherwise payable before such a designation

A retired Chief of Department is entitled to a retirement allowance, consisting of both an annuity and a pension. In this instance the retired Chief of Department of the New York City Police Department, challenged Board of Trustees' interpretation of Administrative Code §13-249, claiming that the plain language of the statute entitled him to receive a pension equal to two-thirds of his salary unreduced by any optional modification.  

Although Supreme Court granting the retiree’s petition holding that that New York City Police Department’s failure to apply the plain language of Administrative Code of City of New York §13-249 to the calculation of retiree's retirement allowance was arbitrary, capricious and contrary to law, the Appellate Division unanimously reversed the ruling “on the law” and dismissed proceeding brought pursuant to CPLR Article 78.

Administrative Code §13-249 provides that a retired Chief of Department is entitled to a retirement allowance consisting of both an annuity and a pension that will effectively make the retirement allowance equal to two-thirds of the retiree's salary.*

The Appellate Division said that the plain language of §13-249, states that a retiring Chief of Department's "accumulated deductions," are not subject to "any decrease resulting from withdrawals, loans, optional modifications . . .." The statute, however, is silent with respect to computations of the "pension" portion of the retirement allowance.

Accordingly, said the court, a retiring Chief's receiving the full two-thirds retirement allowance may be affected by his or her choice of options under Administrative Code §13-261 whereby “if any retiree exercises an option to designate a beneficiary to receive a portion of his retirement allowance, then his retirement allowance will be reduced accordingly.”

The Appellate Division then held that “no fair reading of Administrative Code §13-249 … leads to the conclusion that the ‘pension’ portion of [retiring Chief’s] retirement allowance would not be subject to a reduction based on the selection of an option in which a beneficiary is designated under Administrative Code §13-261.”

* Section 13-249 also provides instruction as to the computation of the "annuity portion" of the retirement allowance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03723.htm