Jerry Boone confirmed as Commissioner and President of the New York State Civil Service Commission

Jerry Boone confirmed as Commissioner and President of the New York State Civil Service Commission

Source: Office of the Governor

On June 20, 2012, Governor Andrew M. Cuomo today announced that the State Senate confirmed Jerry Boone as Commissioner and President of the Civil Service Commission.

Mr. Boone served as the Solicitor General in the New York State Attorney General’s Office from 1991 to 1994. He was the State’s chief appellate lawyer, litigation manager, and bond counsel. Prior to his tenure as Solicitor General, Mr. Boone was the Assistant Attorney General in Charge of the Real Property Bureau in New York City and Albany, as well as Assistant Attorney General in the Litigation Bureau, from 1984-1991.

Mr. Boone is currently the Managing Principal of Boone Consulting, where he has helped develop human resources and operations infrastructure. Earlier, Mr. Boone founded Pride Properties, LLC, in 2008, a company based in Memphis, Tennessee, that focused on the acquisition and rehabilitation of distressed properties to develop quality, affordable housing for sale or rental to lower to middle income households. Mr. Boone still serves as President of the organization, which also offers financial counseling provided for first-time home buyers.

Prior to his founding of Pride Properties, Mr. Boone was the Regional Human Resources, Integration, and Internal Communications Senior Vice President of Harrah’s Entertainment, Inc., Atlantic City. Mr. Boone was in charge of the transition and integration of three acquired casinos into the Harrah’s brand. Mr. Boone has also served as the Corporate Senior Vice President, the Vice President of Human Resources, the Vice President of Casino Operations, and the Vice President of Gaming Executive Development and Corporate Counsel, all for the Harrah’s company.

Mr. Boone received his B.A. from Columbia College.and his his J.D. from Boston College Law School. He was admitted to the New York State Bar in 1986.

Employee terminated after being found guilty of failing to follow proper procedure

Employee terminated after being found guilty of failing to follow proper procedure

Matter of Thomas v County of Rockland, Dept. of Hosps., 55 AD3d 745

A registered nurse at the Summit Park Hospital of the Rockland County Department of Hospitals was served with disciplinary charges alleging misconduct in that she failed to follow proper procedures and she failed to report her alleged error concerning the event.

The hearing officer found the Nurse guilty of all of the charges filed against her and recommended that she be terminated. The Department adopted the findings and recommendation of the hearing officer and dismissed Thomas from her position.

Dismissing the nurse’s appeal, the Appellate Division said that:

1. "The review of administrative determinations in employee disciplinary cases made as a result of a hearing required by Civil Service Law §75 is limited to a consideration of whether the determination is supported by substantial evidence."

2. "Moreover, it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject."

3. "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law’."

In this instance, said the court, the determination that the nurse was guilty of misconduct by failing to properly utilize a defibrillator machine during a "code blue," and then did not report her error, is supported by substantial evidence.

Citing Pell v Board of Education, 34 NY2d at 240, the court said that “it cannot be concluded, ‘as a matter of law, that the penalty of [termination] shocks the judicial conscience.’”

The full text of the decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07924.htm 

Violating of the terms of a disciplinary probationary settlement

Violating of the terms of a disciplinary probationary settlement
Pagan v Board of Educ. of the City School Dist. of the City of New York, 56 AD3d 330

The employee, while serving a disciplinary probationary period, was summarily dismissed for violating the terms and conditions of the probationary settlement agreement.

The Appellate Division dismissed former employee’s petition seeking reinstatement.

The court said that the terms of a signed stipulation to which the individual had agreed set out a three-year probationary period that provided as follows:

1. She was subject to automatic termination if she exceeded 10 days per school year in unexcused absences; and

2. She waived her tenure right to a hearing under Education Law § 3020-a.

Accordingly, the individual was a probationary employee with insofar as any unexcused was involved and was required to show bad faith of the part of the Board of Education in order to succeed in her challenge to her dismissal.

Here, said the court, the evidence did not demonstrate that the former employee had been terminated in bad faith. Rather, the evidence established that during the 2005-2006 school year, she had 11 unexcused absences.

The individual argued that she only had 8 unexcused absences because three of her absences were in connection with court appearances. The Appellate Division held that Pagan’s unexcused absences for court appearances “did not satisfy the terms of the stipulation for excused absences.”

NYPPL Comment: Except where a collective bargaining agreement provides otherwise, a public employee required to appear in a judicial or quasi-judicial proceeding pursuant to a subpoena is typically excused from his or her duties without charge to his or her leave credits. In contrast, an individual who is a party appearing in other than his or her official capacity must charge his or her absence from work to his or her leave credits or be place on leave without pay.

As an example, 4 NYCRR 21.9 of the attendance rules for employees of the State as the employer, address “Leave for subpoenaed appearance and jury attendance.” The rule provides that:

(a) Except as provided in subdivision (b) of this section, on proof of the necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body, an employee shall be granted a leave of absence with pay with no charge against leave credits; provided, however, that this section shall not apply to any absence by an employee occasioned by such an appearance in an action to which such employee is a party; and

(b) An employee holding a position designated as overtime ineligible may be granted a leave of absence with pay with no charge against leave credits on proof of necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body for any period(s) of less than a workweek, regardless of whether such employee is a party to the action.

4 NYCRR 28-1.9 provides for similar absences, with or without pay, by individuals designated Managerial or Confidential within the meaning of Article 14 of the Civil Service Law  [the Taylor Law].


The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08993.htm

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Filing a statutory notice of claim: efforts by an individual to vindicate a personal interest and efforts to vindicate a public interest distinguished

Filing a statutory notice of claim: efforts by an individual to vindicate a personal interest and efforts to vindicate a public interest distinguished
Palmer v Niagara Frontier Transp. Auth., 56 AD3d 1245

A former employee sued the Niagara Frontier Transportation Authority alleging that the Authority terminated his employment in retaliation for his having advised the Authority’s employees and agents of alleged safety violations at his work site.

The Appellate Division ruled that Supreme Court properly granted the Authority’s motion for summary judgment to dismiss individual’s complaint.

The former employee had contended that the Authority had violated Civil Service Law §75-b, the “Whistle Blower Law." However, said the court, in this instance the individual sought only to vindicate his “individual interests," and he had not filed a notice of claim as mandated by Public Authorities Law §1299-p(1) before initiating his law suit. This, explained the court, was a fatal omission on the part of the individual.

With respect to the applicability of the three-month notice of claim requirement of Education Law 3813(1) to statutory or nonjudicial proceedings involving school districts, school boards and boards of cooperative educational services, as well as parallel notice of claim requirements when such proceedings involve other municipal units of government, New York’s courts have distinguished between proceedings which concern an individual’s personal interest [see, for example, Doyle v. Board of Education of Deer Park Union Free School District, 230 A.D.2d 820, a case involving a claim of lost retirement benefits] and those involving an individual seeking to vindicate a public interest (see, for example, Union Free School District No. 6 of Towns of Islip & Smithtown v New York State Division of Human Rights Appeal Board, 35 NY2d 371, at 380, motion to reargue denied 36 NY2d 807).

The general rule: statutes requiring the filing of a notice of claim as a condition precedent to initiating litigation are applicable in actions involving “only a personal interest” but not in actions involving an effort to vindicate a “public interest.”

There as some exceptions to this general rule, however.

PERB, relying on the Court of Appeals ruling in Freudenthal v. Nassau County, 99 NY2d 285, that claims filed with the NY State Division of Human Rights, an administrative agency, do not require the filing of a Notice of Claim pursuant to Education Law Section 3813, has ruled that such notice is not required with respect to improper practice charges filed with it.

Similarly, the Commissioner of Education has held that Section 3813 does not apply to appeals brought under Section 310 of the Education Law [Appeals of Bodnar and DeGiglio, 1990 Opinions of the Commissioner of Education, 12369] while in Mennella v Uniondale UFSD, 287 A.D.2d 636, the Appellate Division decided that a petition filed with the Commissioner of Education may constitute the functional equivalent of a Section 3813(1) notice of claim.

In Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights."

Addressing another aspect of the former employee’s petition, the Appellate Division ruled that his cause of action “is not viable because Civil Service Law §75-b(2)(a)(i) prohibits a public employer from … terminating a public employee based on the employee's disclosure of the ‘violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety’ [and the Authority] established as a matter of law that the safety concerns raised by [former employee] did not present such a danger, and [the individual] failed to raise an issue of fact.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08947.htm

Sanctions ordered after lawsuit filed pursuant to the Freedom of Information Law ruled frivolous
Matter of Fenstermaker v Edgemont Union Free School Dist., 2006 NY Slip Op 52652(U), Decided on September 26, 2006, Supreme Court, Westchester County, Loehr, J. [Not selected for inclusion in the Official Reports, decision affirmed by the Appellate Division, 48 A.D.3d 564]

In this action, State Supreme Court Justice Gerald Loehr, in an exercise of judicial discretion, imposed sanctions on Scott L. Fenstermaker for what Justice Loehr termed a frivolous lawsuit involving his demands for public records pursuant to the Freedom of Information Law [FOIL].

Fenstermaker had asked Supreme Court to direct the Edgemont Union Free School District to provide copies of all records requested in his FOIL request of January 31, 2006 “at the lowest fee collected by the School District on FOIL requests during the period between the enactment of FOIL until the present” and to edit the material “to eliminate extraneous, irrelevant and superfluous documents” from its response to his FOIL request.

Fenstermaker’s request specified 60 categories of financial records that spanned the period from January 1, 2001 to December 31, 2003. Susan Shirken, in her capacity as the School District's Records Access Officer, advised Fenstermaker that two items in his FOIL request would not be provided because “they called for a narrative response and not for records,” but the other 58 other requests were granted subject to some of the records being redacted to delete personal information such has home addresses and Social Security numbers.

Shirken also told Fenstermaker that "When the records have been assembled and boxed up, we will, as you have suggested, have them delivered to an outside contractor for duplication at your expense. I encourage you to confer with [the School District’s counsel] for the purpose of recommending a duplicating contractor for this purpose.” In addition, Fenstermaker was advised that the District would “require that [Fenstermaker] make appropriate advance arrangements to ensure payment … as [the District] cannot permit a situation to develop in which public records might become subject to a contractor's retaining lien for unpaid services.”

Fenstermaker responded, in pertinent part, that:

“We have every intention of using professional copying services equipped to adequately, professionally, and efficiently handle this responsibility. I suggested, in the Request, that [the District’s counsel] and I agree on such a service. I again reiterate that suggestion, notwithstanding your 'requirements.' … ‘As far as ensuring that proper payment arrangements are made we will comply with your requirement that adequate payment arrangements are made. We are confident that, at the conclusion of this matter, we will ultimately be reimbursed by School District funds.’"

According to the decision, the parties agreed that they would use an outside copying service and anticipated having done by a printer in Manhattan in order to find a facility large enough to properly handle the job, which consisted of duplicating the contents of 48 boxes of original records plus several thousand pages of additional material that had to be copied so that the originals could be returned to working files or redacted.

Subsequently Fenstermaker charged the School District with “having created a situation ‘rife with bribes and kickbacks;' that he was certain that [the District] had already altered or destroyed certain of the requested records; that the District's attorney was operating under a conflict of interest in that he was responsible as counsel for [the District’s] malfeasance; and that he [Fenstermaker] was therefore demanding that the records be sent to a copy service designated by him.”

The District responded that the cost of the records it had copied was $4,666.25, at the rate of $0.25 per page, and that the balance of the requested records would be copied by a duplicating service of the School District's choice. It also advised Fenstermaker that he could inspect the records before they were sent out for copying but “they would not be sent out at all unless and until Fenstermaker paid for the copies that had already been made and provided suitable security for payment for the copies to be made."

Fenstermaker reviewed the records and did not claim that any of the records were non-responsive. He did not, however, pay for the copies already made.

He then made a second FOIL request, this time seeking a copy of each FOIL application filled with the School District since the enactment of its FOIL rules and regulations. Shirken granted the request on the condition that the $4,666.25 still outstanding for the copies made pursuant to Festermaker's first FOIL request is paid.

Ultimately Fenstermaker filed an Article 78 petition seeking a court order directing the School District to provide copies of the records requested in his FOIL request at the lowest fee collected by the School District for FOIL requests during the period between the enactment of FOIL and the present.

In his petition, said the court, Fenstermaker “reiterates that he has offered to pay for the entire cost of the copying.” However, he contends that inasmuch as the photocopying service he regularly employs would have charged only $0.15 per page, the District’s unilateral decision to use a service of its own choosing at a cost of $0.25 per page is arbitrary and capricious.

Justice Loehr said that Public Officers Law §87(l)(b)(iii) authorizes an entity subject to FOIL to charge up to $0.25 per page for copies of records. Moreover, once an agency has determined the number of copies requested, it may require that the fee therefor be paid prior to the reproduction of the records and there is no authority for the proposition that the individual who submitted the FOIL request has any right or say in how or by whom the copies shall be made.

Accordingly, the court decided that “[the District’s] decision to send the records to an independent copying service at statutorily authorized price is more than reasonable given the alternative: releasing these original School District records to a copying service where [Fenstermaker] would have had unsupervised access to them” and denied this aspect of Fenstermaker’s petition.

As to Fenstermaker’s seeking an order directing the School District to eliminate extraneous, irrelevant and superfluous documents from its response to his initial FOIL Request, the court said that “This smacks of bad faith” in that Fenstermaker cites no authority for this proposition and “it is undisputed that he was given more than an ample opportunity to review the literally hundreds of thousands of pages of records which he requested - and which required over 177 hours to collect, copy and redact at an estimated cost in lost staff time to the School District of over $14,500 - in order to cull out those records which he did not want copied.” As Fenstermaker "declined to do so, and in so doing manufactured and perpetuated an issue that could have and should have been resolved then," Justice Loehr denied his request.

As to the District’s advising Fenstermaker that his Second FOIL Request would be granted on the condition that he first pay the $4,666.25 outstanding for the copies made with respect to his First FOIL Request, the court noted that Robert J. Freeman, Executive Director of the Committee on Open Government has issued an advisory Opinion in which he stated:

"If an agency has prepared copies of records in good faith and the applicant fails or refuses to pay the fee, I do not believe that the agency would be required to make available those copies that have been prepared. In my view, it follows that an agency should not be required to honor ensuing requests until the applicant has fulfilled his or her responsibility by tendering the fee for copies previously made." This advisory opinion is posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f9659.htm .

Finding that the District’s decision with respect to Fenstermaker’s Second FOIL Request was neither arbitrary nor capricious but reasonable and in accordance with the law, Justice Loehr denied this aspect Fenstermaker claim and subsequently dismissed his Article 78 petition in its entirety.

Turning to the District’s cross-motion asking that sanctions be imposed on Fenstermaker based on its claim that “this proceeding is frivolous and was filed in bad faith,” the court said that it may, as a matter of discretion, award to any party in any civil action or proceeding costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct. Frivolous conduct, said Justice Loehr, includes the filing of a proceeding that is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.

In this instance the court found that Fenstermaker’s Article 78 action was frivolous as “Each of [the District’s] decisions challenged in this proceeding was supported by statute and administrative rulings and [Fenstermaker] cited no authority to the contrary. Accordingly, in addition to statutory costs to be taxed by the Clerk of the Court, Justice Loehr ruled that Fenstermaker was to pay for the "District’s actual expenses reasonably incurred and reasonable attorney's fees" it incurred in defending this proceeding. Expenses and attorney's fees totaled $15,960.

Fenstermaker’s appealed Justice Loehr's ruling, only to have the Appellate Division, repeating Justice Loehr’s finding, hold that “The frivolous conduct in this case was [Fenstermaker’s] initiation of a proceeding that was completely without merit in law and could not be supported by any reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1 [c] [1]).” The Appellate Division then dismiss the appeal.

Justice Loehr's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2006/2006_52652.htm

The Appellate Division’s decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_01343.htm

A collective bargaining agreement can shorten a statute of limitations for bringing a breach of contract action set by law

A collective bargaining agreement can shorten a statute of limitations for bringing a breach of contract action set by law
Sheriff Officers Assn. Inc. v County of Nassau, 21 Misc 3d 1130(A)

Typically an action for breach of contract is governed by a six-year statute of limitations. Here, however, the COB provides that "the President [of the Association] may initiate a grievance... within one (1) calendar year after the occurrence of the event grieved, provided it does not merely affect an individual." This, said Justice McCarty, “effectively shortens the statutory period set forth in CPLR 213(2) of six years to one year with regard to class action grievances brought by the president of plaintiff union....”

Accordingly, said the court, the period for which damages may be claimed with respect to this action is from one year prior to the filing of the grievance, to the present.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52288.htm