Right to a disciplinary hearing survives the individual’s retirement from the position

Right to a disciplinary hearing survives the individual’s retirement from the position

Blair v Horn, 2008 NY Slip Op 32581(U), Supreme Court, New York County, Docket Number: 0100105/2008, Judge: Marcy S. Friedman [Not selected for publication in the Official Reports]

Clinton Blair sued the New York City Department of Correction (DOC) after it denied his request to rescind his retirement from his position as a correction officer. Blair asked the court to direct DOC to reinstate him to his former position and to schedule a hearing on the disciplinary charges that were pending against him at the time of his retirement.

According to the decision, Blair was served with disciplinary charges alleging “excessive use of sick leave.” The hearing had been scheduled for June 28, 2007, but it was postponed without a new date for the hearing being set. On June 20, 2007, Blair notified the New York City Employees Retirement System of his intent to retire. By letter dated August 15, 2007, DOC granted Blair 26 days of terminal leave with an effective date of retirement of September 27, 2007. According to Blair, his “last day worked” was July 15, 2007.

After exhausting his compensatory and annual leave, Blair was placed on terminal leave. Blair then sent a letter dated August 31, 2007, in which he “request[ed] permission to withdraw [his] request to retire.” DOC denied his request on the grounds that it was its position that an employee who has submitted a request to retire may withdraw the request while the employee exhausts compensatory and annual leave balances, but that DOC has discretion to deny the request if it is made while the employee is on terminal leave.

Significantly, Blair did not dispute the fact that DOC did not receive his request to withdraw his retirement until after he begun using his terminal leave.

Justice Friedman ruled that in this instance it was not irrational for DOC to treat the employment relationship as terminated [as Blair] was no longer working and remained on the payroll merely for purposes of exhausting leave that had been granted in connection with the termination.

Put another way, said the court, DOC did not abuse its discretion in interpreting its personnel rules as prohibiting an employee from withdrawing a retirement request as a right after the employee had begun using terminal leave. In so holding, the court rejected Blair’s contention that DOC may not enforce its rules because he was unaware that he would require DOC approval to withdraw his retirement request.

Although the court decided that DOC’S determination denying Blair’s request to withdraw his retirement request should be upheld, Justice Friedman said that he was entitled to a hearing on the disciplinary charges so that he may have an opportunity to contest them. In the words of the court, “His resignation during the pendency of charges does not terminate the proceeding against him.”

Although retirement rather than resignation was the triggering event in this instance, Justice Friedman’s ruling is consistent with the provisions of 4 NYCRR 5.3(b) which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. 4 NYCRR 5.3(b) permits the appointing authority to elect to disregard a resignation filed by an employee and to prosecute disciplinary charges and, in the event that such employee is found guilty of such charges and dismissed from the service, recording his or her separation as a dismissal rather than as a resignation.

Further, 4 NYCRR 5.3(c) provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

Many civil service commissions of political subdivisions of the State have adopted similar rules.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_32581.pdf

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Soliciting a gratuity

Soliciting a gratuity
Dep't of Sanitation v. Norris, OATH Index No. 2352/08 (Aug. 11, 2008)

OATH Administrative Law Judge Alessandra Zorgniotti recommended dismissal of a sanitation worker found to have solicited money from two homeowners to collect bulk material.

ALJ Zorgniotti explained that "[s]oliciting a bribe or gratuity for the performance of one's duties is an act of corruption that cannot be tolerated," and which "necessitates a severe sanction, both to discipline the employee and to deter future similar conduct by other employees.”

Governor Andrew M. Cuomo signs bill addressing cyberbullying in schools.

Governor Andrew M. Cuomo signs bill addressing cyberbullying in schools.

Source: Office of the Governor

Effective July 1, 2013, schools in New York State will be required to take action when students experience cyberbullying or other forms of harassment. The new law, Chapter 102 of the Laws of 2012,* is designed to "ensure that school districts take immediate steps to end harmful behavior, prevent recurrences, and ensure the safety of the targeted students." 

The new law also provides for improved training to help teachers and administrators better prevent and respond to bullying and other harmful acts. In addition, it specifically addresses situations  “where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.”

According to the Office of the Governor, the “new law is designed to strengthen a school's response to harassment and bullying through improved reporting, investigation, intervention, training and prevention.” 

Key provisions:

1. Require Schools to Act When Cyberbullying Occurs

The law requires that schools act in cases of cyberbullying, which may occur on or off campus, when it creates or would create a substantial risk to the school environment, substantially interferes with a student’s educational performance or mental, emotional or physical well-being, or causes a student to fear for his or her physical safety.

2. Ensure Proper Protocols Are in Place to Deal with Cyberbullying

The law requires school districts to put in place protocols to deal with cyberbullying, harassment, bullying and discrimination, including assignment of a school official to receive and investigate reports; prompt reporting and investigation; responsive actions to prevent recurrence of any verified bullying; coordination with law enforcement when appropriate; development of a bullying prevention strategy; and notice to all school community members of the school’s policies.

3. Set Training Requirements For School Employees to Help Identify and Prevent Cyberbullying

The law sets training requirements for current school employees, as well as for new teachers and administrators applying for a certificate or license, on the identification and mitigation of harassment, bullying, cyberbullying and discrimination.

* A copy of the text of the bill is available from NYPPL by e-mail upon request. E-mail your request to publications@nycap.rr.com and type “Cyberbullying” in the subject line,

Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Kiehle v. County of Cortland, USCA, 2^nd Circuit, Docket #11-3097-cv [Summary Order*]

Kristina Kiehle appealed a federal district court's judgment granting summary judgment to the County of Cortland and three employees of the Cortland County Department of Social Services ("DSS") alleging that she had been terminated from her position as a probationary case worker in retaliation for testifying at a New York State Family Court ("Family Court") hearing.

The Circuit Court of Appeals, after a de novo review, sustained the district court’s granting the County’s motion for summary judgment.

According to the decision, Kiehle had voluntarily testified at a Family Court hearing in which a mother sought to re-obtain custody of her daughter. After introducing herself as a DSS caseworker, Kiehle stated that her conclusions were based on information that she had obtained in the course of her public employment and that “the mother was able to adequately supervise, and was not neglectful of, her children. She then recommended that the child be returned to the mother.

The Circuit Court said that although Kiehle’s position was contrary to DSS’s position in the proceeding, she had not distinguished her personal views from those of DSS. Accordingly it sustained the district court’s conclusion that Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing but, rather, she testified as a government employee, i.e., as a DSS caseworker.

Citing Garcetti v Ceballos, 547 U.S. 410, the Circuit Court explained that "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Circuit Court set out the following guidelines used by courts in cases where a public employee claims “First Amendment retaliation,” indicating that in order for the employee to prevail, he or she must demonstrate that:

(1) The speech addressed a matter of public concern,

(2) The employee suffered an adverse employment action, and

(3) There was a causal connection existed between the speech and the adverse employment action" such that "speech was a motivating factor in the determination."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/doc/11-3097_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/hilite/

* Rulings by summary order do not have precedential effect.

Employee terminated for omitting relevant information from his application for employment

Employee terminated for omitting relevant information from his application for employment
Russell v New York Citywide Admin. Servs., 55 AD3d 614

Stephen Russell sued the New York City Department of Citywide Administrative Services following its terminating his temporary employment as a bridge and tunnel officer. An investigation by the Citywide Administrative Services revealed that Russell had failed to disclose pertinent information on his employment application. The information omitted: Russell’s “prior misdemeanor criminal conviction, prior revocations and suspensions of his driver's license, and a prior termination from employment by the New York City Transit Authority.”

The Appellate Division agreed with Supreme Court that Citywide Administrative Service’s decision to terminate Russell’s temporary employment was neither arbitrary nor capricious, had a rational basis, and was not made in bad faith.

Section 50.4 (f) and (g), respectively, permit the State Civil Service Department and municipal commissions to disqualify an individual “who has intentionally made a false statement of any material fact in his [or her] application; or (g) who has practiced, or attempted to practice, any deception or fraud in his [or her] application … to be disqualified. 

The statute further provides that “No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore [sic] and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The full text of the decision is posted on the Internet at
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07670.htm

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee
Gomez v Kelly, 55 AD3d 305

New York City Police Commissioner Raymond W. Kelly found Manuel Gomez guilty of five charges of misconduct and as the penalty placed Gomez on a one-year disciplinary probation and imposed a forfeiture of 30 days of vacation credit.

The charges filed against Gomez: violation of his commanding officer's order to terminate his involvement with the District Attorney's office in a criminal investigation; failure to take possession of drugs during a police department integrity test; failure to voucher his helmet, mace and shield before leaving for active military duty; retrieved his service handgun before the official date of his discharge from active military duty; and failure to report a domestic incident to the department.

Gomez appealed and the Appellate Division, after sustaining the Commissioner’s determination finding Gomez guilty of the charges filed against him, ruled the penalty imposed by the Commissioner was “excessive in light of the mitigating circumstances, i.e., [Gomez's] several tours of active military duty, including a year in Afghanistan for which was decorated, and the substantial pay lost in connection with his military service,” citing Pell v Board of Education, 34 NY2d 222.

The court remanded the case to the Commissioner for the purpose of his setting a lesser penalty.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07181.htm

Substantial evidence supports disciplinary hearing officer’s findings

Substantial evidence supports disciplinary hearing officer’s findings

Mercado v Kelly, 54 AD3d 654

A police officer appealed his termination from his position as a New York City police officer after he was found guilty of certain charges following a disciplinary hearing.

The Appellate Division, in a unanimous decision, said that “Substantial evidence supports the findings, including that [the officer] possessed a stolen license plate and made false and misleading statements about whether he knew the plate was stolen.

Accordingly, the court dismissed the officer’s appeal as “There is no basis for disturbing the hearing officer's assessment of petitioner's credibility regarding the inconsistencies between his plea allocution in the criminal case against him and his statements to the Internal Affairs Bureau investigators.”

As to the penalty imposed by the Police Commissioner, dismissal, the Appellate Division said that “The penalty of dismissal does not shock our sense of fairness, particularly where the evidence gives rise to the inference that petitioner obtained the stolen license plate by virtue of his official position and intended to use the plate for fraudulent purposes, citing Kelly Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07175.htm

“Tebowing” and other activities by students leading to disciplinary suspensions

“Tebowing” and other activities by students leading to disciplinary suspensions

Source: On Board, a publication of the New York State School Boards Association

“Tebowing” that resulted in hallway congestion and other unusual reasons for initiating student disciplinary actions leading to suspensions are described in an article published in the July 2, 2012 edition of the New York State School Boards Association’s publication On Board.

Among other incidents leading to suspensions: Growing long hair for charity [in violation of the school’s dress code] and “Chivalry” [holding an exterior door open for an adult known to the student in violation of security procedures].

The article is posted on the Internet at:

http://www.nyssba.org/index.php?src=news&submenu=news_media&srctype=detail&category=On%20Board%20Online%20July%202%202012&refno=2213

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

Malverne Volunteer Fire Dept. v New York State Off. of Fire Prevention & Control, 2012 NY Slip Op 05174, Appellate Division, Second Department

The New York State Fallen Firefighters Memorial Appeals Committee denied a request to include former Malverne Volunteer Fire Department firefighter Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall. Malverne appealed, contending that the Committee’s decision was not made after a quasi-judicial hearing it claimed was required by the Committee’s procedures.

Although Supreme Court dismissed Malverne’s petition, the Appellate Division “reversed, on the law” and remanded the matter to Supreme Court “to direct the New York State Fallen Firefighters Memorial Appeals Committee to include Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall.”

The Appellate Division explained that in this instance it must consider whether the Committee’s determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

The test applied in such cases: “did the action taken by the agency have a rational basis." Citing Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, the Appellate Division said that a court will overturn such action only "where it is taken without sound basis in reason' or regard to the facts'" or where it is "arbitrary and capricious."

In this instance, said the court, the determination of the Committee that the death of firefighter Brady was not a "line of duty death" within the selection criteria for inclusion on the New York State Fallen Firefighters Memorial Wall was arbitrary and capricious and did not have a rational basis in the record.

Indeed, said the court, “The record demonstrates that, under the applicable selection criteria, Paul Ryan Brady died while engaged in an action that was required, authorized or recognized by law, rule, regulation, [or] condition of employment.’"

Accordingly, the Appellate Division ruled that Supreme Court should have [1] granted Malverne’s petition, [2] annulled the Committee’s determination and [3] directed the appeals committee to include Brady's name on the New York State Fallen Firefighters' Memorial Wall

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05174.htm

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Canna v Town of Amherst, 55 AD3d 1269

Town of Amherst Superintendent of the Wastewater Treatment Facility Anthony R. was terminated from his employment following a hearing conducted pursuant to Civil Service Law §75 (1) based on charges alleging incompetence in the supervision of the operation of the facility.

Canna appealed, contending, among other things, that the Section 75 hearing officer “was biased against him;” that the Town Board’s resolution to terminate his employment was not supported by the required number of valid votes; that the charges were barred by the 18-month statute of limitations set out in Section 75(4) of the Civil Service Law; and that the penalty imposed, dismissal, was “shocking to one’s sense of fairness.”

The Appellate Division rejected Canna’s claim the hearing officer was biased, holding that Canna failed to present "a factual demonstration to support the allegation of bias and proof that the outcome [of the hearing officers findings and recommendation] flowed from it."

As to the validity of the Board’s vote, the court rejected Canna’s claim that the Board’s vote was tainted by the statements by one Town Board member to the effect that it would be difficult for Canna to resume his position as superintendent of the Facility after all that had transpired. Further, said the Appellate Division, “The record establishes that he further stated that, although [that member of the Board] did not believe that [Canna] was ‘single handedly’ responsible for all of the problems at the Facility, he believed that the evidence establish that [Canna] was incompetent, and incompetence is a valid basis for termination.”

Addressing the other aspects of Canna’s appeal, the Appellate Division said that the disciplinary proceeding against Canna was not time-barred based on the 18-month limitations period set forth in Civil Service Law §75(4) because his “alleged incompetency was continuous” and that the penalty imposed upon him, dismissal, was not so disproportionate to the offense as to be shocking to one's sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The full text of the decision is posted on the Internet at

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07300.htm

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

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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