Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

DiStico v Cook, et al, USCA, 2^nd Circuit, Docket #10-4304-cv

The Circuit Court of Appeals for the Second Circuit reversed, in part, a United States District Court’s denial of motions by a school principal and two teachers for summary judgment dismissing the action against them based on their claim that they were entitled to a “qualified immunity.”

Although the court sustained the district court’s ruling denying qualified immunity status with respect to allegations that the teachers “were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault,”* the court said that the doctrine of qualified immunity**was applicable with respect to claims that the educators were deliberately indifferent to certain other allegedly racially motivated physical misbehavior by kindergarten and first-grade students.

This was so, explained the court, because there was no clearly established law permitted a finding that the educators had actual knowledge that commonplace physical misbehavior by children of this age was racially motivated.

In the words of the court, “To date, no Supreme Court or Second Circuit law clearly establishes that evidence of prior racial name-calling by unidentified kindergarten or first-grade students suffices to demonstrate that any subsequent physical misbehavior directed at the same classmate is also racially [motivated]. Indeed, we conclude that something more is necessary to support an inference that a teacher or school official actually knew such subsequent misconduct was racially motivated.”

In addition, said the court, the first-grade teacher was entitled to qualified immunity on this claim because her transmittal of parental complaints of physical misbehavior to the principal for investigation could not be deemed "clearly unreasonable" as a matter of law.

* The two teaches not entitled to qualified immunity with respect to these allegations “because there are disputed questions of fact for which the district court identified sufficient record evidence to support a verdict in favor of [DiStico].”

** Qualified immunity may be claimed by government officials as a defense to liability in an action for civil damages insofar as the act or omission involved did not violate clearly established statutory or constitutional rights that a reasonable person would have known [Harlow v. Fitzgerald, 457 U.S. 800].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/doc/10-4304comp_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/hilite/

Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding

Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding
Robert Falk v Chittenden, 11 NY3d 73

In 2003, City of Rye initiated a disciplinary proceeding against a police lieutenant  pursuant to Civil Service Law §75 and the Department's Rules and Regulations alleging the lieutenant was insubordinate towards another police lieutenant. The accused lieutenant ultimately retained Jonathan Lovett, Esq. to represent him at the disciplinary hearing on these charges.

Falk asked the hearing officer to disqualify Lovett from representing the accused Lieutenant on the ground that he had an attorney-client relationship with him and thus had "a conflict of interest" in view of the attorney's consulting with Falk in the past.. 

Lovett, on behalf of the accused lieutnant, opposed Falk's motion. The hearing officer concluded that he did not have authority to decide the motion.

Ultimately the Court of Appeals considered the matter and ruled that, indeed, there was a conflict of interest in Lovett’s representing the Lieutenant because, in the words of the court, earlier "Falk sought Lovett's legal advice at least partly in a professional capacity. The record further establishes that conversations between Lovett and Falk touched on the disciplining [the Lieutenant]. Lovett acknowledges that he rendered some legal advice on that issue, advising Falk to be wary of [the accused Lieutenant’s] First Amendment rights.  "Moreover, while disciplining [the Lieutenant] might have been a personal desire of Falk's, a request for legal advice as to whether discipline against an inferior officer is a viable course of action falls squarely within a commanding officer's professional responsibilities. 

"Accordingly, Falk in his official capacity had an attorney-client relationship with Lovett, and therefore has standing as a prior client to bring this action for declaratory judgment."

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/past-attorney-client-relationship-may.html

Jurisdiction of the Commissioner to consider an appeal concerning a matter being grieved

Jurisdiction of the Commissioner to consider an appeal concerning a matter being grieved
Mennella v Uniondale UFSD, Comm. Ed. Decision 14245

Among the issues presented to the Commissioner of Education in this appeal were two that Uniondale contended concerned grievances that Mennella had previously filed with the district.

The the Commissioner considered the district's "jurisdiction argument" -- i.e., did the Commissioner have jurisdiction to consider those issues that were "pending grievances."

The Commissioner responded to the district's challenge to his jurisdiction by noting that "[i]t is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter," citing Commack Union Free School District v Ambach, 70 NY2d 501.

The Commissioner then decided that the grievances had not raised the same issues that Mennella had raised in her appeal. Accordingly, he concluded that he had jurisdiction to consider her appeal. 

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume39/d14245.htm

Administrative Law Judge recommends a five-year debarment of public works contractor

Administrative Law Judge recommends a five-year debarment of public works contractor

Office of the NYC Comptroller v Abbey Painting Corporation, OATH Index #2544/11

OATH Administrative Law Judge Faye Lewis found that a contractor violated the NYS Labor Law by failing to pay prevailing wages and supplemental benefits to six employees on four public works contracts.

Based upon credible testimony by two of the workers, documentary evidence and videotapes made by one of the workers, Judge Lewis found that the contractor issued checks to the workers for prevailing wages and benefits, required the workers to endorse the backs of the checks but did not permit them to keep the checks, and instead paid them in cash at lower daily or weekly rates, thereby engaging in a “kickback” scheme.

As a penalty for the violations, the Administrative Law Judge recommended that the contractor be found liable for the underpayments, plus interest, plus a 25% civil penalty. Finding the contract had engaged in flagrant and willful violations on multiple contracts, deliberately falsified payroll records, and the kickback scheme, Judge Lewis also recommended a five-year debarment.   

The decision is posted on the Internet at:

http://www.nyc.gov/html/oath/downloads/pdf/benchpdf/11-2544.pdf

Drafting disciplinary charges

Drafting disciplinary charges
Fella v County of Rockland, 297 A.D.2d 813

How important it to properly draft disciplinary charges? According to the Appellate Division, even in situations where discipline may be warranted, the failure to properly word the charges and specifications may be fatal to the appointing authority's attempt to discipline an employee.

According to the court's decision, following an investigation, the Rockland County Director of Employee Rights and Equity Compliance [Director] concluded that a Rockland County employee had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant position.

As a result of the disciplinary action that followed, the employee was suspended for 30 days without pay for allegedly violating the County's Equal Employment Opportunity Policy [EEOP].

In its decision the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably inter­fering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'"

Citing DeCinto v Westchester County Medical Cen­ter, 807 F2d 304, the court indicated that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

The Supreme Court judge commented that while a decision to promote an employee with whom the target of the disciplinary action was having a romantic relationship may constitute poor judgment, it did not constitute a violation of the County's EEOP - the alleged basis for bring the discipli­nary action. As the County failed to establish any violation of its EEOP, the Supreme Court annulled the determination of the Rockland County Executive. The Appellate Division affirmed the ruling.

What lesson can be learned from this ruling?

While the charges and specifications filed against an employee should clearly apprise the individual the alleged "misconduct or incompetence" giving rise to the charge, the specifications should constitute acts or omissions that, if proven to have occurred, would support a finding that the employee was guilty of misconduct or incompetence. In any event, the employer should be certain that it can prove the allegations, whatever they may be, before initiating disciplinary action.

On the opposite end of the spectrum, where a disciplinary action has been "settled" and the penalty imposed includes placing the individual in "disciplinary probation status," the employer must make certain that in the event the employee is dismissed during this disci­plinary probation period, his or her dismissal is based on the individual's failure to meet the requirements set for the probation in the settlement agreement.

Perhaps the leading case illustrating this principle is Taylor v Cass, 505 NYS2d 929. Here a Suffolk County employee won reinstatement with full back salary and benefits as a result of a court finding that he was improperly dismissed while serving the discipli­nary probationary period.

The six-month disciplinary probation period agreed upon by the parties provided that the County could terminate the employee without any hearing if, in the opinion of his superior, the employee's job performance was adversely affected by his being intoxication while at work during his disciplinary probationary period.

The employee, while serving his disciplinary probationary period, was terminated without any hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours."

The Appellate Division ruled that the employee’s dismissal was improper because he was not terminated for the sole reason specified in the disciplinary settlement: intoxication on the job.

Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance

Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance
Shapiro v Commissioner of Labor, 52 AD3d 1139

The Unemployment Insurance Appeal Board held that the Village Administrator of the Village of Muttontown was ineligible to receive unemployment insurance benefits after determining that the Village Administrator was a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e).

The Village Administrator appealed but the Appellate Division sustained the Board’s ruling, holding that the Administrator position was untenured and that the powers and duties of the position of Village Administrator were set out in Village of Muttontown Local Law No. 1 (2005) that set out provisions establishing advisory and policymaking aspects of the job.

Accordingly, said the court, the Board properly determined that Labor Law §565(2)(e) precluded Shapiro from obtaining unemployment insurance benefits.

Comment: Other “excluded” officers and employees of a governmental entity: an elected official; a member of a legislative body or of the judiciary; a member of the state national guard or air national guard, except a person who renders such services as a regular state employee; a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency; and a person in a policymaking or advisory position, the duties of which ordinarily do not require more than eight hours per week to perform. In addition, §565(2)(g) excludes an individual who is an inmate of a custodial or penal institution.

Labor Law §511 sets out additional exclusions, including students and students' spouses at educational institutions [see §511 subdivisions 15 and 17] and independent contractors.

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/non-tenured-public-administrator.html