Failure to perform found to result from incompetence rather than misconduct

Failure to perform found to result from incompetence rather than misconduct
Transit Auth. v. Wong, OATH Index No. 1866/08

In a disciplinary proceeding, a computer specialist was charged with both incompetence and misconduct. ALJ Kara Miller sustained the incompetence charge, finding that the respondent had overstated his qualifications and experience on his resume and lacked the requisite skill set to perform his job functions.

The ALJ, however, dismissed the three misconduct charges, finding that as to the first, the respondent was not given a clear and unambiguous order that he violated; as to the second, the Department relied on hearsay that was so attenuated as to have no value at all in order to establish the charge; and as to the third, the respondent's failure to perform an assignment was a reflection of his incompetence rather than misconduct.

ALJ Miller recommended demotion.

Jurisdictional classification, position classification and determining the compensation to be paid individuals in the State’s “civil service”

Jurisdictional classification, position classification and determining the compensation to be paid individuals in the State’s “civil service”

DeMartino v City of New York, 2012 NY Slip Op 22178, Supreme Court, New York County

The City of New York promulgated Personnel Orders No. 2012/1 and 2012/2 that approve and resulted in an amendment to Rule X of the Personnel Rules and Regulations of the City of New York.

The amendments to Rule X, reclassified 106 heretofore ungraded [presumably NS or “non-statutory” positions] that were so-called “prevailing rate titles” into 14 new occupational titles, “with four grade levels within each service classification affecting salaries and benefits.”

DeMartino filed an Article 78 petition seeking a court order annulling Personnel Orders No. 2012/1 and 2012/2, contending that the determinations were unilateral, arbitrary and capricious, in violation of Labor Law §220, and the reclassification provisions of Civil Service Law §20.*

The City opposed the petition claiming that it had “complied with Civil Service Law §20 [1] when it allocated titles within a salary grade construct because it did not change a jurisdictional classification.” The City also contended that Civil Service Law §20 only applies when a title is changed from competitive to [the] noncompetitive or [the] exempt class [or the labor class].

Supreme Court disagreed with the City’s position, holding that the legislative intent of Labor Law §220 is to impose upon the state and municipal corporations the same obligations of paying the prevailing rate of wages to laborers, workmen and mechanics employed in public works, in ungraded or noncompetitive employment** as private employers.

Supreme Court then granted DeMartino’s petition and annulled the two challenged Personnel Orders  .

* NYPER comments: §20 of the Civil Service Law addresses the jurisdictional classification and jurisdictional re-classification of positions by a civil service department or personnel officer, which determination is subject to the approval of the State Civil Service Commission. 


Civil Service Law §2.10 defines the term "jurisdictional classification" as the assignment of positions in the classified service to the competitive, non-competitive, exempt or labor classes while §2.11 defines the term "position classification" as a grouping together, under common and descriptive titles, of positions that are substantially similar in the essential character and scope of their duties and responsibilities and in the qualification requirements therefor. 


Positions in the classified service are typically allocated to a salary grade. See, for example, §130.1.a(1) of the Civil Service Law with respect to certain positions in the service of the State as the employer. 


Those positions that are not allocated to a salary grade are referred to as “Other Statutory” [O.S.] where the compensation to be paid to the incumbent is set by law or “Non-statutory” [NS] where the salary is typically determined by the entity’s budget as “not to exceed” a designated amount. An example of an “O.S.” position: §40.1 of the Executive Law sets the annual salary of the State Comptroller..

** NYPER comments: As noted above, a position in the classified service that is “Ungraded” is typically referred to as an “N.S.” or “O.S.” position. Being “Ungraded” does not in itself determine the jurisdictional classification of the position. All positions in the classified service are automatically in the competitive class unless the position has been classified or reclassified to a different jurisdictional class as provided by law or has been otherwise so designated by statute.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22178.htm

In an appeal to the Commissioner of Education the aggrieved party has the burden of demonstrating a clear legal right to the relief he or she is seeking

In an appeal to the Commissioner of Education the aggrieved party has the burden of demonstrating a clear legal right to the relief he or she is seeking

Nicholas Washburn v Ellenville Central School District, Decisions of the Commissioner of Education, Decision #16,368

Nicholas Washburn challenged the termination of his probationary appointment and his denial of tenure by the Ellenville Central School District Board of Education at the end of the third year of his probationary appointment as a physical education teacher.

In response to the superintendent writing to Washburn informing him that she would recommend termination of his services as a probationary teacher effective July 22, 201 at a board to be held on June 22, 2010, Washburn requested “a written statement of the reasons for the superintendent’s negative recommendation.”

The superintendent replied to Washburn indicating that her recommendation was based on his failure to follow certain directives and practices and set forth a number of examples of such omissions.

When the Board terminated Washburn’s probationary appointment effective July 22, 2010, he appealed the Board's decision to the Commissioner of Education.

In his appeal Washburn contended that the reasons for his termination and denial of tenure were “false and pretextual” and asked the Commissioner to annul the Board’s action and to grant him tenure retroactive to June 22, 2010.

The Board, in rebuttal, argued that [1] Washburn failed to state any procedural violation of Education Law §3031 with respect its terminating his probationary appointment and [2] that he did not established any basis for granting him tenure retroactively. The Board also claimed that Washburn had failed to exhaust his administrative remedies under the relevant collective bargaining agreement.

As to the Board’s “affirmative defense” that Washburn failed to exhaust his administrative remedy under the collective bargaining agreement, the Commissioner said that “other than this conclusory allegation,” the Board neither supplied any facts nor made any reference to any “applicable provisions of the agreement.”  Accordingly, the Commissioner ruled that the Board had not established this defense. 

Turning to the merits of Washburn’s appeal, the Commissioner observed that “generally, a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.” Further, said the Commissioner, the aggrieved party “has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which [he or she] seeks relief.”

Although Washburn alleged that the Board’s decision to terminate his probationary employment and deny him tenure violated his right to due process, the Commissioner said that he failed to allege any procedural violation of Education Law §3031 or any other applicable statute.  Further, said the Commissioner, the record indicated that the Board complied "in all respects with the statutory procedural requirements for terminating a probationary employee and denying a probationer tenure."  

Nor, said the Commissioner, did Washburn establish that he was terminated for a constitutionally impermissible reason or in violation of statute.

Having failed to articulate a clear legal right to the relief requested, the Commissioner ruled that Washburn failed to meet his burden and dismissed his appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16368.html

An employer may, but is not required to, create a new job or create a light-duty version of the disabled employee’s current job in order to provide a reasonable accommodation

An employer may, but is not required to, create a new job or create a light-duty version of the disabled employee’s current job in order to provide a reasonable accommodation
Jacobsen v New York City Health & Hosps. Corp., 2012 NY Slip Op 05478, Appellate Division, First Department

William Jacobsen alleged that he was wrongfully terminated from his position because of a disability in violation of the New York State Human Rights Law (Executive Law §296[1][a]) and the New York City Human Rights Law (Administrative Code of City of NY §8-107[1][a]).

Diagnosed with pneumoconiosis, an occupational lung disease, Jacobsen requested, and was granted, a medical leave of absence. Subsequently Jacobsen’s physician cleared to return to work on January 3, 2006, but directed that he not be present at any construction site. HHC sent a letter to Jacobsen’s physician setting out his duties and explaining that he is required to spend approximately 75% of his time in the field monitoring construction sites. Jacobsen’s union representative then asked HHC to let him return to work with an accommodation of being assigned work "that he is capable of doing in the office." In addition, Jacobsen provided another letter from his physician stating that he was medically cleared to work in the field.

Ultimately HHC told Jacobsen that he would be placed on unpaid medical leave for six months and his job would be left open in the event that his condition improved, indicating that his union’s proposed accommodation, relocation to the central office, was not feasible because the duties of his position required that he visit facilities that have ongoing construction. Jacobsen’s physician then advised HHC that Jacobsen “could never be medically cleared to perform the essential functions of his current duties because he should not be further exposed to any type of environmental dust.”

HHC terminated Jacobsen at the end of his six-month leave of absence, whereupon he commenced an action for wrongful termination because of a disability.

To state a prima facie case of employment discrimination due to a disability, a plaintiff must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated (Matter of McEniry v Landi, 84 NY2d 554). Once a plaintiff establishes a prima facie case, the burden shifts to the employer, here HHC, to show that the disability prevented Jacobsen "from performing the duties of the job in a reasonable manner or that the employee's termination was motivated by a legitimate nondiscriminatory reason".

The Appellate Division concluded that HHC met its burden by establishing that at the time of termination, Jacobsen was unable to perform the duties of his job because of his lung condition and that no reasonable accommodation was available.

Under the Executive Law §292 [21-e], a "reasonable accommodation" is defined as "actions taken by [an] employer which permit an employee . . . with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held . . . provided, however, that such actions do not impose an undue hardship on the business." Similarly, the City's Human Rights Law provides that an employer "shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job" (Administrative Code §8-107 [15][a]).

However, said the court, "an employer is not required to find another job for the employee, create a new job, or create a light-duty version of the current job."

Under both New York's Executive Law and the City's Administrative Code, an employer is required to perform an individual assessment of an employee prior to terminating him or her. In this instance it was only after Jacobsen's doctor and Jacobsen himself confirmed that he could no longer work at construction sites that HHC terminated him from his position.

Accordingly, the Appellate Division affirmed Supreme Court’s order granting HHC’s motion for summary judgment dismissing the complaint.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05478.htm

Terminated employee’s actions that did not constitute misconduct but was an error of judgment does not disqualify the individual for unemployment insurance benefits

Terminated employee’s actions that did not constitute misconduct but was an error of judgment does not disqualify the individual for unemployment insurance benefits

Jackson (County of Nassau Civ. Serv. Commn.--Commissioner of Labor), 2012 NY Slip Op 05372, Appellate Division, Third Department

A correction officer at the Nassau County Correctional Facility began a “personal relationship with a man who was later incarcerated at that facility.” She continued to have a personal relationship with this individual following his incarceration and communicated with him on her cell phone in contravention of the facility’s policy prohibiting corrections personnel from fraternizing with inmates.

Ultimately the correction officer was terminated from her position and she was later disqualified from receiving unemployment insurance benefits on the ground that her employment was terminated due to misconduct.

The Unemployment Insurance Appeal Board, however, reversed this decision and ruled that correction officer was entitled to receive benefits because her activities did not constitute misconduct, but rather an error of judgment.

The Appellate Division sustained the Board’s ruling.

Rejecting the facility’s appeal, the court explained that the question of whether an applicant for unemployment insurance benefits had engaged in disqualifying misconduct is a factual issue for the Board to resolve and “its determination will not be disturbed if supported by substantial evidence.”

Notably, said the court, "not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct." Although the correction officer’s making the phone calls violated the employer's policy prohibiting corrections personnel from having personal conversations with inmates, she had testified that she was unaware of this policy.

The court, “based upon the limited record” before it, concluded that substantial evidence supported the Board's finding that correction officer's actions, “albeit inappropriate, did not rise to the level of misconduct disqualifying her from receiving unemployment insurance benefits.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/slipidx/aidxtable_3.shtml

New York City Civil Service Commission’s determination that an applicant is qualified for the position sought affirmed

New York City Civil Service Commission’s determination that an applicant is qualified for the position sought affirmed

In the Application of The City of New York and Martha K. Hirst, As Commissioner of the New York City Department of Citywide Administrative Services, 2008 NY Slip Op 32509(U), Supreme Court, New York County, Docket Number: 0400925/2008, Judge: Lewis Bart Stone [Not selected for publication in the Official Reports]

In this action, New York City’s Department of Citywide Administrative Services [Administrative Services] as the court to review the City Civil Service Commission’s [CSC] decision that an applicant for the position of Assistant Engineer was qualified for appointment to this title.

The applicant had been educated in Minsk, Belarus and had completed a combined undergraduate curriculum for the degree of Specialist in Civil Engineering with a specialization in Water Supply and Sewage Systems in 1974. Administrative Services had rejected her application on the grounds that she was not qualified for the position because she did not meet the qualifications set out in the Examination Announcement.

CSC held an “evidentiary hearing” an ultimately determined that the applicant was qualified for the position, ruling that the course work completed by the applicant is equivalent to the curriculum outlined for a baccalaureate degree in Environmental Engineering at the State University of New York at Buffalo and the curriculum outlined by Manhattan College for a Master’s Degree in Environmental Engineering.

Administrative Services appealed, contending that CSC had “acted arbitrarily and capriciously and abused its discretion” in qualifying the applicant for the position.

Justice Stone said that the hearing record shows that Administrative Services “relied on a consultant’s evaluation” of the applicant’s educational transcript to find a lack of equivalency, and that CSC made its own factual evaluation of equivalency based on the applicant’s transcript in light of curricula in New York colleges.

The problem of equivalency, CSC noted, is that engineering disciplines overlap. Accordingly, said the court, inquiry into the meaning of the applicant’s educational courses and relating their equivalency to modern environmental curricula is hardly arbitrary, capricious or an abuse of discretion in this context.

Justice Stone dismissed Administrative Service’s appeal, ruling “Whether this Court would have made the same decision on the facts as [the Commission] did is not relevant. What is relevant is that [the Commission] made an inquiry and reviewed the material submitted to it and made its Decision on the facts of equivalency, a determination that is neither arbitrary, capricious or ai1 abuse of discretion.

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

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_32509.pdf

Conflicts of Interest

Conflicts of Interest

Opinion of the Office of the State Comptroller, #2008-1; #2008-2

In response to an inquiry concerning gifts to school district, the Office of the State Comptroller advised:

A school board member would not have a prohibited conflict of interest under article 18 of the General Municipal Law if he or she also served as a trustee on the board of trustees of a not-for-profit foundation that raises money and makes gifts to the school district. The school board member, however, should not participate in school board discussions or decisions relating to gifts from, or other matters involving, the not-for-profit foundation for which the board member serves as a trustee and, assuming disclosure is not otherwise required by General Municipal Law § 803, should disclose his or her relationship with the not-for-profit entity. [Opinions of the Office of the State Comptroller 2008-1]

The full text of the opinion 2008-1is posted on the Internet at:

http://www.osc.state.ny.us/legal/2008/op2008.1.htm

___________________

In response to an inquiry concerning contracts entered into prior to an individual’s commencing municipal service, the Office of the Comptroller advised:

A newly elected town board member has an interest in a contract between the town and the board member, as a sole proprietor, under which the board member picks up road salt and delivers the salt to a town storage facility.

If the contract was entered to before the board member was elected to office, the exception in General Municipal Law §802 (1) (h) applies and the interest is not prohibited. The board member would be required, however, to disclose the interest in accordance with General Municipal Law §803. In addition, the board member would have a prohibited interest in renewals of the existing contract, or in subsequent contracts between the town and himself or herself as sole proprietor unless another exception in General Municipal Law §802 were to apply. The town should consult its code of ethics to determine whether it contains any pertinent provisions. Even if not required by the town's code of ethics, the board member should not participate in town board discussions or decisions relating to the hauling contract, including but not limited to, discussions or decisions pertaining to auditing claims under the contract. [Opinions of the Office of the State Comptroller 2008-2]

The full text of the opinion 2008-2 is posted on the Internet at:

http://www.osc.state.ny.us/legal/2008/op2008.2.htm

N.B. These opinions represent the views of the Office of the State Comptroller at the time it was rendered. These opinions may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in these opinions.

Seeking a court order to compel a public officer to perform his or her duty

Seeking a court order to compel a public officer to perform his or her duty

CSEA v Patchogue-Medford UFSD, 239 A.D.2d 415

CSEA v Patchogue-Medford UFSD, a case involving a demand to effect an appointment of an individual to a reclassified position, was characterized as an action “in the nature of mandamus.”

After reviewing the duties and responsibilities of the position of stenographer then held by Lorraine Fishman, the Suffolk County Civil Service Commission advised the Patchogue-Medford Union Free School District that it had reclassified the position to senior stenographer. The Commission then certified the promotion list for senior stenographer to the District. Fishman was first on the list.

The District returned the list to the Commission, indicating that "it would not be making an appointment to the position of senior stenographer at that time."* Fishman sued, seeking a court order compelling the District to appoint her to the reclassified position. Her petition, said the court, was an action "sounding in mandamus."

Supreme Court, Suffolk County, however, never reached the merits of Fishman's claim as it dismissed her petition on the grounds that it was untimely. The Appellate Division affirmed the lower Court's ruling.

What was the reason for the Courts to declare Fishman's suit untimely? The Appellate Division said that although Fishman knew in June that the District was not going to appoint her to the position of senior stenographer, "she made no formal demand upon the District” to appoint her to the senior stenographer position until she commenced the [Article 78] proceeding until the following March.

The Court pointed out that "before commencing a proceeding in the nature of mandamus, it is necessary to make a demand and await a refusal and the Statute of Limitation begins to run on the date of the refusal and expires four months later."

A party, however, cannot delay in making his or her demand, thereby extending indefinitely the period during which he or she is required to take action.

In this instance the Appellate Division decided that Fishman had not proceeded with sufficient promptness in making her demand and thus the doctrine of laches barred her from suing. Laches results from the failure of a party to do something to enforce a right at a proper time.

Although the courts never reached the merits of Fishman's petition, it should be noted that as a general proposition, an appointing authority cannot be required to fill a vacant position, even if there is an appropriate eligible list available to it.

For example, in Porto v Town of Harrison, 100 AD2d 870, the Appellate Division said that an individual on an eligible list does not have a "presumptive right" to appointment."

Similarly, in Bailey v Kern, 177 Misc 904, the Court said that it did not have the power to command an appointing authority to fill a vacancy because the discretion to make appointments is vested in the appointing authority.

Another case, Taylor v Hammondsport CSD, 267 A.D.2d 987, brought by a teacher following his being involuntarily reassigned to non-teaching duties, was also characterized by the court as being "an action in the nature of mandamus."

The Hammondsport Central School District had assigned the teacher to perform non-teaching duties after he was found guilty of certain disciplinary charges filed against him pursuant to [former] Section 3020-a of the Education Law.

The educator objected to his reassignment to non-teaching duties, contending that the assignment to such duties constitutes the imposition of an additional penalty or remedial action in violation of Education Law Section 3020-a. He challenged his reassignment, demanding that he be reinstated to his former teaching assignment and compensated "for emotional distress he has endured as the result of district's assigning him to non-teaching duties."

A State Supreme Court judge dismissed the teacher's petition on the ground that he did not have any "clear legal right to the relief sought against [district], and therefore mandamus" was not available to him as a remedy.

The Appellate Division agreed with the lower court, pointing out that [former] "Section 3020-a neither limits the authority of [the district] to assign [a teacher] to non-teaching duties nor requires [the district] to restore [a teacher] to his [or her] teaching duties following the completion of disciplinary procedures conducted pursuant to the statute.”

* Presumably Fishman was reassigned to another, vacant, Stenographer position or she was “laid off” and her name was placed on a preferred list.