Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days

The Westchester County Health Care Corporation adopted the recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the employee guilty of certain charges of misconduct and insubordination. It then terminated the individual from its employ.

Te Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary termination of an employee with respect to the merits of the appeal. The court held that contrary to the individual’s contention, Westchester’s determination that the individual was guilty of certain charges of misconduct and insubordination was supported by substantial evidence in the record.

The court also rejected the individual’s claim that she was denied a fair hearing due to the alleged bias of the hearing officer as being without merit, finding that there was no evidence in the record to support her contention that the hearing officer was biased.

As to the penalty imposed, dismissal, the court ruled that termination was “not so disproportionate to the offenses committed by the petitioner as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”

Although the Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary action, the court remanded the matter to the lower court for its determination regarding any back pay due the dismissed individual.

Here, said the court, the individual “correctly contends that she is entitled to back pay for the period she was suspended without pay in excess of 30 days, excluding delay, if any, occasioned by her, and less unemployment insurance benefits received for that period, if any,” citing Civil Service Law §75[3].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03839.htm

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

======================

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/

======================

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