Prohibition against personal use of state property by State officers and employees and other political campaign matters

Prohibition against personal use of state property by State officers and employees and other political campaign matters

Governor Andrew M. Cuomo - Executive Order 8.2*

With partisan political campaigning approaching, State officers and employees should keep in mind the mandates of Executive Order 7.7 promulgated by former Governor David A. Paterson.

Continued in effect by Governor Andrew M. Cuomo via his Executive Order 8.2, former Governor Paterson's Executive Order 7.7 states that "it is the obligation of every State employee and officer to pursue a course of conduct that will not engender public concern as to whether the individual is engaged in acts that may violate his or her public trust; and all State employees therefore must act in a manner consistent with that public trust, and must not take any actions that are intended, or appear to be intended, to achieve personal gain or benefit; State supplies, equipment, computers, personnel and other resources may not be utilized for non-governmental purposes, including for personal purposes or for outside activities of any kind."

Significantly, E.O. 7.7 declares that "The designation ‘personal’ on agency stationery means only that the contents are meant for the personal viewing of the addressee and not that the sender is acting unofficially. All letters and other written materials printed on such official stationery are considered official, and thus the designation ‘unofficial’ has no meaning and may not be used." Presumably this means that any such writing will not enjoy any privilege preventing disclosure of its contents.

Further, E.O.7.7 cautions that "any violation of this order may result in dismissal or other appropriate sanction as determined by the appointing authority of the individual committing such violation."

* Governor Cuomo’s Executive Order 8.2, which continues in force a number of Executive Orders issued by former Governors of New York State, is posted on the Internet at:

http://www.governor.ny.gov/executiveorder/2

NOTE: Executive Order 8.2 indicates that this is the 2nd Executive Order issued by Governor Cuomo.  Executive Orders issued by previous governors are designated 1.xx, 2.xx, 3.xx, etc., commencing with Executive Order 1.1 issued by the late Governor Nelson A. Rockefeller.

Dismissal of action to place employee on involuntary Section 72.1 leave recommended

Dismissal of action to place employee on involuntary Section 72.1 leave recommended

Housing Auth. v. Anonymous, OATH Index No. 1867/08

Oath Administrative Law Judge Joan Salzman recommended dismissal of the Housing Authority’s petition seeking to place a housing assistant on involuntary leave pursuant to Section 72 of the Civil Service Law.

Although the employee has a seizure disorder, and has had seizures while at work, the ALJ ruled that the Authority did not prove that his condition rendered him currently unfit to perform his duties.

The ALJ noted that the individual has only recently been given a correct diagnosis and treatment and that he demonstrated a continuing ability to perform his job.

As the Court of Appeals held in Matter of Sheeran v New York State Dept. of Transp., 18 NY3d 61 [Decided with Birnbaum v NYS Department of Labor], the procedural safeguards set out in Civil Service Law §72.1 are available to an employee if employer bars his or her return to work from sick leave.

A summary of the Court of Appeals’ ruling is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/2011/11/procedural-safeguards-set-out-in-civil.html

A false statement of fact is a necessary element in proving a cause of action alleging defamation

A false statement of fact is a necessary element in proving a cause of action alleging defamation

Goldberg v Levine, 2012 NY Slip Op 05613, Appellate Division, Second Department

Supreme Court dismissed Barry Goldberg’s petition seeking to recover damages for alleged defamation based upon certain written and oral statements allegedly made about him by the Steven Levine at town board meetings and in a local newspaper. Goldberg appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that in determining whether a complaint states a cause of action to recover damages for defamation, “the dispositive inquiry” is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the complaining party.

Falsity, said the court, is a necessary element in a defamation cause of action and only facts are capable of being proven false. Accordingly, it follows that “only statements alleging facts can properly be the subject of a defamation action.”

Characterizing certain of Levine’s statements that Goldberg alleged were made at Town Board meetings and in a local newspaper as “rhetorical hyperbole” and expressions of “individual opinion,” the court said “accepting these allegations in [Goldberg’s] complaint as true … they fail to state a cause of action to recover damages for defamation.”

The Appellate Division also observed that “the documentary evidence submitted by [Levine] demonstrated that the Levine's statements … were substantially true” and  "Truth is an absolute defense to an action based on defamation."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05613.htm

Attorney may not withdraw from an OATH hearing without his or her client’s permission

Attorney may not withdraw from an OATH hearing without his or her client’s permission

Health & Hospitals Corp. (Lincoln Medical & Mental Health Center) v. Wolf, OATH Index No. 2153/08

Under rules of the New York City’s Office of Administrative Trials and Hearings, an attorney who has filed a notice of appearance may not withdraw from representation without the client's permission or as delineated in the Code of Professional Responsibility.

OATH Administrative Law Judge Ingrid Addison denied an attorney's motion to withdraw based on the accused employee's failure to appear at the hearing and the attorney's inability to contact him.

The ALJ found no indication that the attorney had taken steps to avoid prejudice to the employee, including giving due notice of her intention to withdraw.

The hearing continued not withstanding the employee's absence.

A “citizen action” challenging the State’s settlement of earlier litigation involving payment of damages by the State dismissed

A “citizen action” challenging the State’s settlement of earlier litigation involving payment of damages by the State dismissed
Santora v Silver, 20 Misc.3d 836, Modified and Affirmed, 61 A.D.3d 621, Motion to appeal denied, 13 N.Y.3d 704

This “citizen taxpayer action” pursuant to State Finance Law Section 123 et seq., sought money damages from Assembly Speaker Sheldon Silver and his former chief legal counsel, James Michael Boxley for the sum paid by the State of New York in settlement of a prior action entitled Jane Doe v The New York State Assembly, et al, Sup. Ct., Albany County, Index No. 33 14/04 (the Jane Doe action).

Ultimately The Jane Doe action was settled for $507,500 with the State of New York paying $500,000, conditioned on the approval of all appropriate state officials in accordance with the provisions for indemnification under Section 17 of the Public Officers Law.*$7,500 was paid contributed by Boxley, who was represented by private counsel in that litigation.

In this action, Joseph J. Santora sued in an effort to obtain a court order directing “restitution to [the State] from Silver and Boxley of the ‘$480,000’ that was paid by [the State] in settlement of the Jane Doe action.” In addition, Santora sought “money damages for the value of the legal services provided by the Attorney General in connection with his defense of Silver in the Jane Doe action, and argues that the Attorney General must be prevented from appearing in the present action on behalf of Silver.”

Judge Goodman dismissed the complaint filed by Santora against Silver and Boxley for the following reasons:

1. The complaint fails to allege any illegal or wrongful expenditure of state funds on Silver’s behalf, even if Silver had demonstrated leadership that would have led to an entirely different and more acceptable outcome. “A claim that state funds are not being spent wisely is patently insufficient to satisfy the minimum threshold for standing under the [relevant] statute.”

2. The Attorney General’s representation of public officers does not entail the expenditure of public funds within the meaning of the State Finance Law … and [the Court is powerless to undertake] judicial scrutiny of statutorily-mandated non-fiscal activity of the Attorney General.”

3. Boxley was represented by private counsel in the Jane Doe action; and he was personally responsible for $7,500 of the total settlement paid to Jane Doe.

* Section 18 of the Public Officers Law permits political subdivisions of the State to elect to provide for representation and indemnification of its officers and employees sued as the result of the performance of, or the failure to perform, official duties.

The Supreme Court’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_31995.pdf

The Appellate Division’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03456.htm

An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination

An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination

Ashe v Town Bd. of The Town of Crown Point, N.Y., 2012 NY Slip Op 05693, Appellate Division, Third Department

The Town Board of the Town of Crown Point filed disciplinary charges against one of its employees pursuant to Civil Service Law §75.

The Board conducted the hearing rather than appointing a hearing officer hear the charges and make findings of fact and a recommendation as to the disposition of the charges. The Town Supervisor was the primary person to present proof in support of the charge.

Ultimately the employee was, a divided vote found guilty of misconduct and terminated from his employment with the Town Supervisor participating in the Board’s voting on the charge and penalty. The Supervisor voted in favor of the prevailing determination to find the employee guilty and terminate his employment with the Town.

The employee challenged the Board’s action.

As to the role of the Town Supervisor in the proceeding and adjudication, the Appellate Division, citing Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714, noted that "Although '[i]nvolvement in the disciplinary process does not automatically require recusal,' . . . individuals 'who are personally or extensively involved in the disciplinary process should disqualify themselves from . . . acting on the charges.'"

Finding that the Town Supervisor “was extensively involved as she presented virtually all of the proof in support of the charge,” the court concluded that the Town Supervisor should have disqualified herself from voting on the final determination.

Considering a procedural challenge made by the Town concerning the employee’s appeal, the Appellate Division commented that although an objection to a particular hearing officer generally must be timely asserted at the hearing to preserve the issue for appeal, it is incumbent upon a person who has been extensively involved in the disciplinary process to "disqualify himself or herself from [involvement in] rendering a final determination," [emphasis supplied].

Finding that the Town Supervisor was extensively involved in the disciplinary proceeding but did not recuse herself from participating in the determination, the Appellate Division ruled that the determination must be annulled and the matter remitted to Town Board for a de novodetermination based on the record.

On this last point, the court noted that it appeared that the Board considered events that occurred after the misconduct alleged in the charges and the hearing. Accordingly, it said, the Board’s determination should not consider any such post-hearing events.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05693.htm

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Free speech does not protect individuals using epithets

Free speech does not protect individuals using epithets
Charles Williams v Town of Greenburgh, et al, 535 F.3d 71

A governmental entity may be sued for allegedly suppressing an individual’s Constitutional protected Freedom of Speech.

In the Williams case, the Second Circuit addressed, among other things, Williams’ allegation that the Town of Greenburgh’s actions against him were taken in retaliation for his exercising his right to free speech when it expelled him from a town facility and prosecuted him for trespass.

In addressing this aspect of Williams’ petition, the Second Circuit explained that it has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context, comparing Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (requiring a private citizen who sued a public official to show: “(1) [the plaintiff] has an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his First Amendment right”), with Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (requiring evidence of “adverse employment action” where plaintiff was a public employee), and Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (requiring, in the prison context, an adverse action by defendants and a causal connection between the adverse action and the protected speech).

Regardless of the factual context, said the court, it has required a plaintiff alleging retaliation to establish that his or her speech was protected by the First Amendment.

Citing Chaplinsky v. New Hampshire, 315 U.S. 568, the Circuit Court noted that “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

The court concluded that because Williams could not show that his speech was either silenced or chilled — i.e., that his right to free speech was actually violated — his claim failed as a matter of law and sustained the district court’s granting the Town’s motion for summary judgment dismissing his petition.

The decision is posted on the Internet at:

http://caselaw.findlaw.com/us-2nd-circuit/1124970.html

A so-called “Zipper Clause” bars considering the terms of a stipulation of settlement resolving grievances brought under an earlier CBA

A so-called “Zipper Clause” bars considering the terms of a stipulation of settlement resolving grievances brought under an earlier CBA
Local 2841 of N.Y. State Law Enforcement Officers Union, AFSCME, AFL-CIO v City of Albany, 53 AD3d 974

A stipulation of settlement was entered into by Local 2841 and the City of Albany to resolve a number of grievances filed under the then Collective Bargaining Agreement [CBA]. By its terms, the stipulation “could not be modified or rescinded absent a subsequent writing of the parties.”

Subsequently the Local and the City negotiated and executed a successor CBA.

In the course of resolving a grievance brought under the new CBA, the arbitrator found that the stipulation made under the earlier CBA had not been modified or rescinded by any writing of the parties. Further, the arbitrator deemed the stipulation of settlement to be a rule of the Albany Police Department and, therefore, concluded that the City violated the terms of the CBA by not complying with its provisions.

The Appellate Division disagreed and vacated the arbitrator’s award.

The court said that “inasmuch as the successor CBA represents the entire agreement between the parties, it was not proper for the arbitrator to rely on the ‘stipulation of settlement’ flowing from the earlier CBA in resolving the instant grievance.”

“Accordingly,” ruled the Appellate Division, “the arbitrator exceeded his power in amending the terms of the CBA by considering that stipulation of settlement in contravention of an expressed term of the CBA which prohibited amending, modifying or deleting any provision thereof,” presumably viewing a term in the successor CBA as constituting “a subsequent writing of the parties” modifying or rescinding the terms of the stipulation of settlement entered into under the earlier CBA.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06421.htm