The Civil Service Law – an 1888 perspective

The Civil Service Law – an 1888 perspective

In 1888 William Harrison Clark wrote a book, The Civil Service Law – A defense of its principles, with corroborative evidence from the works of many eminent American statesmen. It addresses a variety of topics, some of which are still relevant in today’s public personnel law arena.

The text of this historical volume is posted on the Internet at:

http://books.google.com/books?hl=en&id=byoUAAAAIAAJ&dq=%22civil+service+law%22&printsec=frontcover&source=web&ots=MJrGimrom1&sig=3lluAl_cK1D1eryLOpKdBv37Kl4#PPP7,M1

Alaska Supreme Court recognizes a union-relations privilege in confidential union-related communications and statutory protection against unfair labor practices

Alaska Supreme Court recognizes a union-relations privilege in confidential union-related communications and statutory protection against unfair labor practices

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.

The Alaska Supreme Court recognized a union-relations privilege in Peterson v. State of Alaska, No. S-14233, ___P.3d___, 2012 WL 2947636  (Alaska, July 20, 2012) [A copy of the decision may be downloaded [Download Peterson ]

The Court held that "[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State's union employees a union-relations privilege."  The reasoning employed by the Court - that "the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee" and that recognizing a privilege "harmonizes [the state labor relations act]'s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules" - should be useful in other states and in other settings where this issue frequently arises.

This is a major decision. It is my hope that other states will follow suit. I wrote a law review article on this topic a few years ago, Is a Full Labor Relations Evidentiary Privilege Developing? 29 Berkeley Journal of Labor and Employment Law 221 (2008), available here. 

Though this decision arose in the public sector, there is no reason why this decision would not be applicable to private employers. The policies behind the Alaska statute and the NLRA are virtually identical and the policies and need for the recognition of this privilege are certainly identical. 

Mitchell H. Rubinstein

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.