Authority to issue Uniform Traffic Tickets

Authority to issue Uniform Traffic Tickets

Informal Opinions of the Attorney General: Informal Opinion 2012-07

The Attorney General advised the Village of Old Field that the Village's park rangers may issue uniform traffic tickets for violations of the Vehicle and Traffic Law within village parks. The park rangers, however, may not issue tickets for violations they observe on public streets while traveling between parks.

The decision is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2012-7%20pw.pdf

Collective Bargaining Agreement may provide for an election of remedies with respect to Title VII complaints

Collective Bargaining Agreement may provide for an election of remedies with respect to Title VII complaints
Leonyer M. Richardson, v Commission on Human Rights, 532 F.3d 114

Does Title VII of the Civil Rights Act of 1964 bar the inclusion of an election-of-remedies provision in a collective bargaining agreement?

EEOC contended that it does; the Connecticut Commission on Human Rights and Opportunities [CCHRO] – a defendant in this action, argued that Title VII does not prohibit such a provision to be negotiated and included in a collective bargaining agreement.

The Circuit Court decided that the law governing contracts that provide for the release or waive Title VII rights is independent of the law governing employer actions taken in retaliation for, and intended to deter, employee opposition to unlawful employment practices, including the filing of charges with the EEOC or its state counterpart.

Although there are limits regarding what a union may agree to in the course of collective bargaining, in this instance the court decided that Richardson’s union “has not transgressed them by contracting to limit an employee’s legal recourse under certain circumstances.*

The collective bargaining agreement in question merely provided that an aggrieved employee could either arbitrates her grievance or file a charge with the CCHRO.

Accordingly, the Circuit Court ruled that the Union had not discriminated against Richardson by its adhering to the election-of-remedies provision after she chose to file a charge with the CCHRO as the collective bargaining agreement “does not constitute a waiver of any statutory rights” and dismissed her appeal.

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

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTA0NzQtY3Zfb3BuLnBkZg==/06-0474-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irld5a2/10/hilite

* New York courts have held that an employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual [Matter of Hickey v New York City Dept. of Education, 17 NY3d 729. See, also, Antinore v State, 40 NY2d 6].

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Office of the State Comptroller - Issued during the week of August 6 - 12, 2012

DiNapoli and HUD Uncover Financial Abuses by Former Troy Housing Authority Officials

The retired comptroller of the Troy Housing Authority took home $207,000 in inappropriate payments while collecting a public pension in apparent violation of state law, among other financial problems, according to a reportreleased Tuesday by State Comptroller Thomas P. DiNapoli and the U.S. Department of Housing and Urban Development’s Office of Inspector General. Video is also available here.

DiNapoli and Project Heart Announce Joint Effort to Reunite Holocaust Survivors and Heirs with Unclaimed Funds

New York State Comptroller Thomas P. DiNapoli and Project HEART (Holocaust Era Asset Restitution Taskforce) today announced a partnership to reunite Holocaust survivors and their heirs with unclaimed funds that are rightfully theirs.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed an audit of the New Roots Charter School.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits: the Village of Bergen; the Big Flats Fire District No. 1; the Caneadea Fire District; the Village of Canton; the Town of Champlain; the City of Rochester; and, the Spencerport Volunteer Fireman’s Association, Inc.

Administrative disciplinary action involving charges based on employee’s being convicted of crime

Administrative disciplinary action involving charges based on employee’s being convicted of crime

NYC Department of Sanitation v Anonymous, OATH Index No. 1159//12

A New York City sanitation police officer was served with disciplinary charges after he was convicted of possession of cocaine in federal court.

New York City’s Executive Order 16 of 1978 provides for the dismissal of any City employee who is convicted of a crime relating to their employment, “involving moral turpitude or which bears upon their fitness to perform their duties … absent compelling mitigating circumstances.” 

In defending himself in the administrative disciplinary proceeding the employee argued that his experience as a first responder on September 11 had left him with PTSD, causing depression and substance abuse. 

OATH Administrative Law Judge Ingrid M. Addison found that the individual’s conviction related to his employment as a law enforcement officer and bore upon his fitness to perform the duties of that job.  As to “mitigating circumstances” that might be a factor with respect to his misconduct, Judge Addison found his claims “insufficiently compelling” and recommended that respondent be terminated from his employment.

N.B. Public Officers Law §30.1.e provides, in pertinent part, that a public office shall become vacant “by operation of law” upon the incumbent’s “conviction of a felony, or a crime involving a violation of his oath of office…. “ A police officer is a “public officer” within the meaning of POL §30.1.e.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1159.pdf

A “Class of One” is not available to an individual in litigation involving a public employer

A “Class of One” is not available to an individual in litigation involving a public employer
Appel v Spiridon et al, 531 F.3d 138*

A faculty member employed by Western Connecticut State University [WCSU] was told that she would be required to submit to a medical examination involuntarily as a condition of her being continued in her employment with the University.

She sued, bringing a “class action of one,” contending that this requirement violated her constitutional rights under the Free Speech Clause of the First Amendment and under the Equal Protection Clause of the Fourteenth Amendment. A federal district court judge granted her petition based on her “class of one” claim of a violation of the Equal Protection Clause of the Fourteenth Amendment.

The Second Circuit vacated the injunction issued by the district court and remanded the matter to the district court for further proceedings, citing Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146. 

In Engquist, the Circuit Court explained, the Supreme Court held that such a theory did not apply, as here, in the public employment context. 

According to the decision, “It appears …that [the faculty member] is the only WCSU faculty member ordered to undergo an involuntary psychological examination in order to continue teaching and receiving pay and benefits at WCSU.”

The Circuit Court commented that the only basis for the lower court’s granting a preliminary injunction in favor of [the faculty member], and while it, itself, heretofore recognized such “class of one” liability in the public employment context, the Supreme Court’s holding that the Equal Protection Clause does not apply to a public employee asserting a violation of the Clause under a “class of one” theory in Engquist, it must “overrule any precedent of this Circuit to the extent that it conflicts with the holding in that decision.”

The case was remanded to the district court for further action.*

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTU3MjMtY3Zfb3BuLnBkZg==/06-5723-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irld5a2/14/hilite

* See Appel v. Spiridon, 463 F. Supp. 2d 255, posted on the Internet at: http://ct.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110818_0000471.DCT.htm/qx

Estoppel is not available against an administrative agency for the purpose of ratifying an administrative error

Estoppel is not available against an administrative agency for the purpose of ratifying an administrative error

Appeal of Jennifer Geiger, Decisions of the Commissioner of Education, Decision #16,379

This decision illustrates that an individual’s actions in reliance on information provided by a school official that subsequently proves to be incorrect will not excuse the individual's not complying with statutory or regulatory requirements.

Jennifer Geiger filed a petition as a candidate for election to the school board.

Education Law §2608(1) proves that candidates for office of member of the board of education must file a nominating petition “in the office of the clerk of the board of education between the hours of nine a.m. and five p.m., on or before the twentieth day preceding the day of the annual election.” §2608(1) also provides that “[t]he clerk shall refuse to accept petitions ... which are not timely.”

With respect to the election in question, the statutory deadline for filing nominating petitions was five p.m. on April 25, 2012.  The school district admittedly had advised individuals seeking election to the board that nominating petitions were due by four p.m. on April 27, 2012. 

Ms. Geiger submitted her petition after five p.m. April 25, 2012, but prior to the district’s published deadline of four p.m. on April 27, 2012. The district clerk, however, rejected Geiger's nominating petition as untimely because it was not filed by the statutory deadline of five p.m. on April 25, 2012.

The Commissioner of Education dismissed Ms. Geiger’s appeal, pointing out that “Because Education Law §2608(1) requires that nominating petitions be filed in the office of the district clerk on or before the twentieth day preceding the day of the annual election, petitions may not be filed after the statutory deadline.” Further, said the Commissioner, the board’s incorrect statement of the filing deadline does not authorize school district officials to depart from the statutory filing requirements….”

The Commissioner’s ruling is consistent with Renaud v City of New York, 269 A.D.2d 283. In Renaud the Appellate Division said that "estoppel is not available against an administrative agency for the purpose of ratifying administrative error."

The Geiger decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume52/d16379.html

Less than 30-days notice of termination of a probationary educator does not always result in the payment back salary

Less than 30-days notice of termination of a probationary educator does not always result in the payment back salary
Vetter v Board of Educ., Ravena- Coeymans-Selkirk Cent. School Dist., 53 AD3d 847

A probationary teacher of physical education and health education employed by Ravena-Coeymans-Selkirk Central School District. During the school year, several students made written complaints that the teacher had walked through the middle school girls' locker room while females were changing their clothes. Placed on administrative leave while an investigation was conducted, the teacher was told by the Superintendent that she planned to recommend his termination at the June 19, 2006 Board meeting .The decision notes that although the Board terminated the teacher’s employment on June 21, 2006 effective July 21, 2006, it did not notify him of that fact in writing until a letter dated July 19, 2006 was sent to him.

The teacher sued, seeking a name-clearing hearing pursuant to US Constitution 14th Amendment and 42 USC §1983, payment of 30 days salary in accordance with Education Law §3019-a and an award of counsel fees pursuant to 42 USC §1988. Without conceding that the probationer was entitled to a name-clearing hearing, the district agreed to provide him with one. Supreme Court awarded the teacher counsel fees related to his attempt to secure the name-clearing hearing, but denied his request for 30 days salary. Both parties appealed those portions of the Supreme Court’s ruling respectively viewed as adverse to them.

Regarding the teacher’s demand for salary payment, the Appellate Division said that a school district terminating a probationary teacher that fails to provide the 30-days notice required by Education Law §3019-a, must provide "one day's pay for each day the notice was late." Although it is uncontroverted that the teacher was only given two days notice of his termination - 28 days less than the required 30 days notice – the court agreed with the district that because “the time during which salary would be paid on account of the late notice fell during the summer vacation a time” when the teacher did not work and, therefore, would not otherwise have been paid, he was not entitled to receive any pay based upon the district's failure to provide the requisite notice.

The court noted that there is no evidence that the probationary teacher would have been entitled to any pay during the period in question if he had not been terminated. Thus, under these circumstances, the payment of salary to him would, in effect, provide a windfall to him and would not serve the purposes for which such payment was intended.

As to Supreme Court’s awarding the teacher attorney fees, the Appellate Division said such fees were erroneously awarded to him. The United States Supreme Court has clearly held that a voluntary resolution of a matter "lacks the necessary judicial imprimatur" to warrant "an award of attorney's fees." In this instance the district decided to give the probationer the “name-clearing hearing” he demanded. As the hearing was the result of the voluntary actions of school district, which was not enforced by a consent decree or judgment of Supreme Court, the Appellate Division ruled that the award of counsel fees was improper.

NYPPL Comments: A name clearing hearing, however, serves only one purpose - to clear the accused individual's good name and reputation. It does not result in the individual obtaining any right to reemployment. This means that having been provided with a hearing and having cleared his name is, at best, all the relief an individual can expect. Prevailing at a name-clearing hearing does not require the individual to be reemployed by his or her former employer.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/less-than-30-days-notice-of-termination.html

Failure to produce a valid license required to perform the duties of the position bars individual’s employment

Failure to produce a valid license required to perform the duties of the position bars individual’s employment

NYC Department of Sanitation v Wright, OATH Index #1601/12

OATH Administrative Law Judge John B. Spooner found that the worker’s failure to possess a valid driver’s license barred him from continued employment as a sanitation worker. The Appointing Authority adopted Judge Spooner recommendation that the individual be terminated from his position.

The decision indicates that the worker “violated department rules by failing to have a valid driver’s license and not having the license reinstated after being notified of the need to do so.”

Where a valid license, permit or certification is required to lawfully perform the duties of the position, courts have ruled that an individual may be suspended without pay if he or she becomes unable to lawfully perform the duties of the position because of a lack of, or the loss of, the required license, certification or similar permit. “Summarily” in this context means without preferring disciplinary charges and providing a due process hearing once the individual has been given a reasonable opportunity to produce the required credential and has failed to do so.

Common examples of situations leading to a valid summary dismissal include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, the loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position.

Essentially courts have viewed employees who lack such a required credential as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. As the Court of Appeals indicated in New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, termination from the position because the individual does not possess a valid required license or certification is not a disciplinary termination.

Other examples include Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspension of teachers was lawful because their teaching licenses had expired) and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator was not discriminated against when a private sector employer terminated the individual after his driver’s license was suspended).

In contrast, in Martin ex rel Lekkas, 86 AD2d 712, the issue focused on the employer's requiring Lekkas, an Assistant Clinical Physician, to have a valid license to practice medicine while serving as an administrator, a position that did not involve Lekkas’ practicing medicine. The appointing authority had terminated Lekkas from his position because he did not hold a valid New York State license to practice medicine. The Appellate Division ruled that only in the event the duties of the position require the incumbent to be licensed may the lack of such a license serve as grounds for termination.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/12_Cases/12-1601.pdf

Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position

Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position

Consalvo v City of New York, 53 AD3d 521

A New York City Sanitation Department employee was instructed to remove a dead cat from a public roadway. While removing the animal for the roadway the employee was struck by a hit-and-run driver, and thereafter died. Diane Consalvo sued the City, alleging wrongful death claming the City was negligent. The Supreme Court denied the City’s motion for summary judgment dismissing the action. On appeal, the Appellate Division, Second Department reversed the lower court’s ruling.

The Appellate Division said that “The duty of an employer to provide its employees with a safe place to work does not extend to hazards which are part of or inherent in the very work which the [employee] is to perform [nor] to secure the safety of [an employee] against a condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the [employee]”

In this instance, said the court, the City demonstrated it was entitled to judgment as a law by showing that the employee was an experienced sanitation worker, that it was part of his work to pick up dead animals from the roadway, and that the risks inherent therein, including the risk of being struck by a car, were readily observable.

Consalvo relied upon union rules, which the court said “were promulgated not as a safety measure, but to promote efficiency,” and upon the alleged "custom" of the Sanitation Department to dispatch two workers to collect garbage. However, said the Appellate Division, such evidence did not raise a “triable issue of fact” sufficient to defeat the City's entitlement to judgment as a law.

In another “safe workplace” case, Scharff v Sachem Cent. School Dist. at Holbrook, 53 AD3d 538, the court said that although Labor Law §240(1) affords special protection to workers who sustain personal injuries as a result of elevation-related risks such as falling from a height or being struck by a falling object that was improperly hoisted, the provision does not "encompass any and all perils that may be connected in some tangential way with the effects of gravity."

The injured worker testified that he slipped and fell onto the surface of a roof of a school while working. The school district, said the Appellate Division, met its burden of establishing its prima facie entitlement to judgment as a law by showing that the employee’s injury was not incurred as a result of an elevation-related risk. The Appellate Division also commented that “Supreme Court properly found that the [worker’s] affidavit, in which he alleged that he also slid down the roof, contradicted prior deposition testimony and was an attempt to create a feigned issue of fact.

The Consalvo decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/employers-duty-to-provide-safe-place-to.html

The Scharff decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/worker-injured-while-working-above.html

 

The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits

The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits

Matter of Redd (Commissioner of Labor), 2012 NY Slip Op 05886, Appellate Division, Third Department

Initially suspended without pay from her employment for alleged misconduct, an arbitrator ultimately found the employee guilty of misconduct and terminated from her position.

The individual then filed for unemployment insurance benefits. The Unemployment Insurance Appeal Board denied her claim for unemployment insurance benefits on the basis that she lost her employment through misconduct.

The Appellate Division affirmed the Board’s decision, holding that as “there was a full and fair opportunity to litigate the issue in the prior proceeding, collateral estoppel* effect must be given to the arbitrator's factual findings regarding claimant's misconduct.”

Further, said the court, upon review it concluded that "the Board properly took into account the arbitrator's factual findings regarding the events which led to claimant's dismissal and then went on to reach its own conclusion as to whether claimant's behavior constituted [disqualifying] misconduct under the Labor Law."

As the record before court provided substantial evidence to support the Board's conclusion that claimant engaged in disqualifying misconduct, the Appellate Division said that it found no basis to reverse the Board’s ruling.

* The Doctrine of Collateral Estoppel holds that the determination of the facts litigated between the parties to an earlier proceeding are binding and conclusive on those parties in any subsequent litigation involving the same issue[s] and parties.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05886.htm