Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Smith v Commissioner of Labor, 2012 NY Slip Op 05887, Appellate Division, Third Department

An applicant for unemployment insurance benefits received two notices of rejecting his claim for benefits.  

In response to his filing a request for an administrative hearing challenging the denial of his claim, an Administrative Law Judge ruled that the request for the hearing was untimely filed. The Unemployment Insurance Appeals Board affirmed the ALJ’s decision and the applicant challenged the Board's ruling.

The Appellate Division sustained the Board’s ruling, noting that §620(1)(a) of the Labor Law provides that in the event an applicant for unemployment insurance benefits is dissatisfied with an initial determination, he or she must request a hearing within 30 days unless physical or mental incapacity prevents him or her from doing so.

In this instance the applicant admitted that he had received the notice of determination shortly after it was mailed and was aware of the 30-day time limit for requesting a hearing.

Noting that the applicant had testified that he failed to request a hearing within 30 days “because he thought he needed to wait until his summer employment ended to do so, and he stated that he received advice to that effect from Department of Labor employees following the initial denial of his application for benefits,” the Appellate Division held that “neither claimant's confusion regarding the two notices … nor the erroneous advice from the Department … provides a basis for us to disturb the Board's decision.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05887.htm

Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings

Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings
Katz v Board of Educ. of City School Dist. of City of N.Y., 2008 NY Slip Op 31935(U),  Supreme Court, New York County, Judge: Shirley Werner Kornreich [Not selected for publication in the Official Reports]

The New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher. The “notice” was sent by certified mail, return receipt requested and by regular mail. The certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. BOE subsequently sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail. Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentiaand the teacher was found guilty of the charges and terminated. A letter advising the teacher of her dismissal was mailed to the same address used to send all of the previous letters to the teacher who subsequently acknowledges receiving it and filed a claim with BOE seeking reinstatement retroactive to the date of her termination, along with restoration of benefits.

When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.” Additionally, said the court, the teacher “denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up [and] if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.”

Judge Kornreich said that “The standard in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.”

The court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent. Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges.

In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Judge Kornreich decided that it was not arbitrary or capricious for BOE to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation and dismissed her petition.

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