Termination recommended after a special police officer found guilty of giving false information to a police officer

Termination recommended after a special police officer found guilty of giving false information to a police officer
NYC Administration for Children’s Services v Toro, OATH Index No. #1023/12 and OATH Index #1024/12

Two Administration for Children’s Services [ACS] special officers were found to have made false statements to supervisors and to an investigator regarding their involvement in connection with the traffic stop of a relative and former ACS special officer. It was alleged that a photocopy of an unauthorized ACS identification card was displayed to a NY/NJ Port Authority police officer in the course of the traffic stop.

One of the special officers at the scene of the traffic stop displayed his ACS ID card and badge and falsely told a Port Authority police officer that his relative would be getting a new ACS ID when his problems at work were resolved.

Due to the severity of the misconduct, OATH Administrative Law Judge Faye Lewis recommended termination of employment for one of the special officers, the brother of the former officer, despite the lack of his having any prior disciplinary record. The officer resigned shortly after the decision was issued.

Judge Lewis did not recommend a penalty to be imposed on the other special officer as his employment was terminated by ACS in connection with a different matter.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1023.pdf

Discipline involving alleged off-duty misconduct

Discipline involving alleged off-duty misconduct
Local 342 v Town of Huntington, 52 AD3d 720

Local 342 brought an Article 75 action seeking to vacate an arbitrator’s award based on a “finding that the Town had just cause for suspending [an employee] from his position with the Town."

The genesis of the Town’s action: An Ordinance Inspector from the Town cited a building owned by the accused employee and his wife for numerous violations of the Huntington Town Code. Local 342 had appealed the ruling, contended that the award was irrational because the employee’s performance of his duties was completely unrelated to the off-duty misconduct of which he was accused.

Supreme Court vacated the arbitration ward on the ground that it was irrational and, therefore, the arbitrator had exceeded her authority. The Appellate Division sustained the lower court’s ruling.

The Appellate Division ruled that while the charges against the employee emanating from his ownership of premises situated in the Town were "substantial and directly affect the safety of the public," they did not relate to his character, neglect of duty, or fitness to properly discharge the duties of his position. In this regard the Appellate Division decided that the Local had met its burden of showing that the award is irrational because there was "no proof whatever” to justify the award in view of the fact that the employee’s performance of his official duties “were completely unrelated to the off-duty misconduct of which he is accused.”

If an arbitrator's award is completely irrational, "it may be said that [s]he exceeded [her] power" and thus, said the Appellate Division, Supreme Court properly vacated the award.

NYPPL Comments: In New York State, unless otherwise provided by a collective bargaining agreement or by statute, typically only incompetence or misconduct related to job performance or off-duty misconduct adversely reflecting on the public employer [see, for example, Smith v Kerick, 292 A.D.2d 223 and Wilburn v McMahon, 296 A.D.2d 805] may serve as a lawful basis for an appointing authority initiating disciplinary action against a public officer or employee.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/discipline-related-to-alleged-off-duty.html

Court will not assume that the arbitrator will be unable to fashion an appropriate remedy

Court will not assume that the arbitrator will be unable to fashion an appropriate remedy
Board of Education of City School Dist. of City of Buffalo, 53 AD3d 1071

The Buffalo Fiscal Stability Authority (BFSA) imposed a wage freeze with respect to public employees of the City of Buffalo, including employees of the Buffalo City School District. In accordance with the freeze, the District did not pay wage increases mandated by the parties' collective bargaining agreement (CBA).

The unions initially sued in federal court challenging the constitutionality of the wage freeze under the Contracts and Takings Clauses of the United States Constitution but were unsuccessful [Buffalo Teachers Fedn. v Tobe, 446 F Supp 2d 134, affd 464 F3d 362, cert denied, 127 S Ct 2133].

The unions then filed a demand for arbitration and the District filed a petition pursuant to CPLR Article 75 seeking a permanent stay of arbitration.

The Appellate Division affirmed Supreme Court’s dismissal of the District’s petition, rejecting its argument that “any remedy awarded in the arbitration would violate public policy and thus that the grievance is not subject to arbitration.” The court said while a court may stay arbitration if it "examines an arbitration agreement . . . on its face and concludes that the granting of any relief would violate public policy" it would not “presume in advance of arbitration that the arbitrator will fashion a remedy that will violate public policy.”

Neither was the Appellate Division persuaded by the District’s claim that having litigated the issue in federal court, the union’s demand for arbitration was improper as the issue had already be the subject of a judicial review. It noted that the federal litigation was limited to constitutional challenges to the wage freeze, while the grievance filed by the union concerns is whether there was a violation of the CBA between the parties.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/court-will-not-assume-that-arbitrator.html

National security trumps federal employee’s civil service protection

National security trumps federal employee’s civil service protection

Various media reports

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of  “security clearance.”

The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”

In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.

The decision is posted on the Internet at:

http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-3207.pdf

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA)

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA) 

Miller v Clinton, United States Court of Appeals, District of Columbia Circuit, Docket #10-5405

The United States Department of State terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old.*The Department contended that it was free to terminate employees like Miller on account of their age as a matter of law.**

Noting that “the necessary consequence of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex, the Circuit Court of Appeals, Circuit Judge Kavanaugh dissenting. reversed the district court’s dismissal of Miller’s petition. The court said that it found nothing in the Basic Authorities Act, 22 U.S.C. 2669(c)2(c), relied upon by the State Department for its action that abrogated the ADEA’s broad proscription against personnel actions that discriminate on the basis of age.***

Noting that the Supreme Court has recognized that the ADEA’s sweeping mandate “broadly prohibits arbitrary discrimination in the workplace based on age,” citing Lorillard v Pons, 434 U.S. 575, the Circuit Court said that “The Act’s protections for employees of the federal government are, if anything, even more expansive than those for workers employed in the private sector … means, among other things, that federal employees cannot be subjected to mandatory retirement at any age.” In other words, said the court, there is “no permissible [age] cap” for federal employment.

The consequences of the State Department’s argument, said the Circuit Court, cannot be limited to the ADEA alone as were it to accept the Department’s contention that §2669(c) creates an exemption from the ADEA, it would have to reach the same conclusion regarding both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq.3 as it could see no way to distinguish the latter two statutes from the ADEA.

The Circuit Court remanded the case to the district court “for further proceedings.”

* The ADEA [see 29 USC 14, §631(c)(1)] sets out an "age exception" for “bona fideexecutives or high policymakers” wherein it provides that “Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000” [§29 U.S.C. 14, §631(c)(1)]. 

** The State Department contended that the statute under which Miller was hired, §2(c) of the Basic Authorities Act, 22 U.S.C. §2669(c), permitted the Department to exempt Miller from the protections of the ADEA

*** The court explained that “Congress would not have used ambiguous language had it intended to override the ADEA is confirmed by considering the language that Congress did use when it intended to carve out exceptions from that statute … when Congress had such an intention, it made that intention clear.”

The decision is posted on the Internet at:

http://www.cadc.uscourts.gov/internet/opinions.nsf/B65D15DDE4EE579F85257A53004E90E1/$file/10-5405-1387823.pdf

Scope of arbitration

Scope of arbitration
Richfield Springs CSD v Allen, 270 A.D.2d 734

Changes in health insurance benefits may be initiated by a third party that actually provides the benefit. Does an employee organization have any right to challenge a unilateral change in the health insurance plan made by the "third party?"

This was the major issue in Richfield Springs, a case that essentially explores the issue of the scope of arbitration under a Taylor Law agreement.

The health insurance plan covering members of the Richfield Faculty Association was changed. The plan had been established under Sections 92-a and 119 of the General Municipal Law and was commonly referred to as the BOCES plan.

The Association's basic objection: there was a change of carriers responsible for administering the BOCES Plan's coverage for prescription drugs. The Association's basic concern: the coverage to be provided by the new carrier would be inferior to the coverage under the BOCES's existing plan.

The Association demanded that the former prescription drug insurance be continued and that unit members be given "reimbursement for any financial loss" that they incurred as a result of the change. To enforce its demand, the Association filed a grievance formally objecting to the change. Eventually Richfield Springs Faculty Association President Tracy Allen demanded that the Association's grievance be submitted to arbitration.

In response to the demand for arbitration, the Richfield Central School District asked for, and obtained, a stay of arbitration from a State Supreme Court judge. Its argument: the dispute was not subject to the arbitration clause of the Agreement. The Association appealed.

Initially the Association's motion to compel arbitration was granted by the Supreme Court but subsequently an amended order was issued staying arbitration based on the court's finding that the Taylor Law agreement did not bind the district to arbitrate disputes between the Association and a third party, here the "BOCES Plan" administrators.

The Appellate Division reversed. The court decided that the Association's grievance regarding the change in the carrier of the prescription drug plan covering its members is arbitrable after all.

The court¸ citing Liverpool Central School, 42 NY2d 509, explained that "[i]t is settled law that grievances arising under public sector parties' collective bargaining agreements are subject to arbitration where both arbitration of the subject in dispute is authorized by the Taylor Law (Civil Service Law Article 14) and the parties clearly agreed by the terms of their contractual arbitration clause to refer their differences in the specific disputed area to arbitration."

This view was amplified by the Court of Appeals in a subsequent ruling, Watertown Education Association, 93 NY2d 132.

Using a two-step analysis, the Appellate Division first applied the "Liverpool test" and concluded that contract arbitration clause in the contract covered "the subject the dispute." It then applied the Watertown test -- "did the parties in fact agree to arbitrate this particular grievance." It concluded that the parties had so agreed.

The court pointed to the fact that the Richfield Springs collective bargaining agreement "specifically included" a clause stating that prescription drug coverage was to be provided by "Prescription Card Services (PCS)." Further, said the court, "the Agreement expressly provided that "[a]ny change in [insurance] plan or carrier shall be by mutual agreement of the parties."

The Appellate Division said that since there is no dispute that the specified carrier of the prescription drug plan was changed from PCS to another provider without the Association's consent, this supported the claim of an "alleged violation" of the Agreement that the parties clearly and unequivocally agreed to arbitrate.

What about the district's argument that it was not compelled to arbitrate changes unilaterally initiated by a third party? The Appellate Division decided that this was irrelevant insofar as the parties to the collective bargaining agreement were concerned.

The decision indicates that the fact that the claimed reduction in employee health benefits may have been effected by a third party, here the BOCES Plan's Board of Directors, which was not a party to the collective bargaining agreement, rather than by the school district, does not determine whether or not the grievance is arbitrable.

The test applied by the Appellate Division: where the parties broadly agreed to arbitrate any alleged violation of their collective bargaining agreement or any dispute with respect to its meaning or application, and included language dealing specifically with health insurance benefits, a grievance concerning a claimed reduction in health insurance benefits is arbitrable.

Accordingly, the Appellate Division ruled that the Association's grievance was arbitrable and "the scope of the pertinent provisions of the Agreement and the merits of the grievance should be resolved by the arbitrator."

In another case involving the implementation of a contract arbitration procedure, Wayne Finger Lakes BOCES v Keller, decided by the Appellate Division, Fourth Department on February 16, 2000, the court granted Keller's motion to compel the arbitration of a contract dispute.

Keller, as president of the Wayne Finger Lakes BOCES Faculty Association, had submitted a grievance claiming that the BOCES's scheduling of a workday prior to Labor Day was in violation of an express provision in the collective bargaining agreement.

When the BOCES refused to submit the question to arbitration, Keller filed a petition to compel arbitration pursuant to Article 75 of the Civil Practice Law and Rules.

The Appellate Division pointed out the collective bargaining agreement in question defined an arbitrable grievance as "a claim by any member of the bargaining unit based on a violation of any of the specific and express provisions of this Agreement."

The court agreed with the Association that parties agreed "`by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.'"

However, there are other considerations that may preclude a unilateral change in a Taylor Law agreement from being submitted to arbitration.

Although not identified as an issue in the Richfield Springs case, as the Appellate Division, Second Department noted in Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn. (268 AD2d 523 [2000], appeal dismissed95 NY2d 790 [2000], lv denied 95 NY2d 761 [2000]), a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration.

In Port Washington, the parties agreed to include a specific "religious holiday" provision in a Taylor Law agreement. The clause allowed employees to be absent with pay to observe certain religious holidays without charging any leave accruals. The school district then refused to implement the provision, claiming that it was unconstitutional.

The Appellate Division agreed that the provision was unconstitutional and held that the school district's refusal to implement the contract clause was not subject to arbitration under the contract's grievance procedure.

The text of the decision is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2008/06/scope-of-arbitration.html

Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a

Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a
Robert Pollock v Kiryas Joel Union Free School Dist., 52 AD3d 722

The Kiryas Joel Union Free School District and the Board of Education of the Kiryas Joel Union Free School District terminated a teacher from his position as a tenured teacher with the district. 

The teacher sued and Supreme Court annulled the district’s action and directed that the teacher be reinstated to his position retroactive to the date of his termination "with an award of back pay, interest, and such other and further benefits as would have accrued to him but for his unlawful termination of employment." The Appellate Division affirmed the lower court’s ruling.

The court pointed out that a tenured teacher was entitled to the procedural protections set forth in Education Law §3020-a.

The Appellate Division summarized the procedural elements as follows: Prior to any disciplinary action being taken against a teacher, all charges must be submitted in writing and filed with the clerk or secretary of the school district (Education Law § 3020-a[1]); then the employing board of education, in executive session, must vote as to whether there is probable cause for the charges (Education Law § 3020-a[2]); and if the board of education's determination is affirmative, a written statement specifying the charges in detail and outlining the employee's rights, including his right to a hearing, shall be immediately forwarded to that employee (Education Law § 3020-a[2]).

In contrast, the court noted that a tenured teacher may enter into a settlement providing for his or her voluntary resignation and forfeiture of protections pursuant to Education Law §3020-a only if that settlement is shown to have been voluntary and noncoerced.

Here, however, the Appellate Division said that “the evidence did not establish that the [the teacher’s] purported waiver of his rights under Education Law § 3020-a was voluntary and noncoerced.”

As the Kiryas Joel did not prefer charges or hold a hearing pursuant to Education Law § 3020-a, the Supreme Court properly determined that the appellants' actions were undertaken in violation of lawful procedure and was correct in granting the teacher’s petition and annulling Kiryas Joel’s terminating his employment.

The Appellate Division then remitted the matter to Supreme Court for the purpose of determining the amount due the teacher but also said that the “award shall include an offset for the amount of [the teacher’s] earnings from other employment since his termination by the appellants and for the amount of unemployment benefits received by the petitioner during that period.”

NYPPL Comment:On the issue of coercion in connection with an appointing authority’s threatening disciplinary action if the employee does not resign from his or her position, the Court of Appeals has held that threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges -- did not constitute coercion so as to make the resignation involuntary [Rychlick v Coughlin, 63 NY2d 643].

The decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/terminated-teacher-is-reinstated-with.html

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