Suspension without pay during a pending disciplinary action

Suspension without pay during a pending disciplinary action
Elmore v Mills, 299 A.D.2d 545, Motion for leave to appeal denied, 9 N.Y.2d 509

Among the several issues considered by the Appellate Division, Third Department in Elmore case was the suspension of a tenured teacher without pay in the course of a disci­plinary action.

Plainview-Old Bethpage Central School District filed disciplinary charges against the educator pursuant to Section 3020-a of the Education Law. Section 3020-a.2(b) provides that in the event a teacher is suspended during pendency of the hearing, such suspension shall be with pay unless the teacher pleaded guilty to, or was convicted of, one of several enumerated crimes.

However, in this instance the Taylor Law contract between the district and the teacher union, in pertinent part, provided that “A teacher who has been suspended from school pursuant to Section 3020-a of the Educa­tion Law shall receive his/her regular full pay to which he/she would otherwise be enti­tled pursuant to … the Collective Bargaining Agreement [CBA] and all fringe benefits for a period of a maximum of fifteen (15) school months (11/2 years salary).... Thereafter, any suspension may be without pay.”

In December 1998, the District, relying on this provision in the CBA, suspended the teacher without pay, effective January 6, 1999, pending the outcome of the disciplinary hearing. The educator, however, had neither pleaded guilty to, nor was convicted of, any of the several crimes enumerated in Section 3020-a. Was the teacher's suspension without pay by the Dis­trict pursuant to the CBA lawful in view of the provisions of Education Law Section 3020-a.2(b)?

Although the Appellate Division declined to rule on this question, holding that because a final determination in the disciplinary action had been made and thus the issue was "moot," the court did elect to discuss a number of elements concerning the question of suspension without pay in a Section 3020-a proceeding. It said that:

A CBA may allow a school district to suspend its teachers without pay as long as the agreement's terms clearly manifest the parties' intent to do so, citing Board of Education of the City of Rochester v Nyquist, 48 NY2d 97.

The CBA relied upon by the District in this case clearly circumscribes a teacher's right to full pay during a protracted suspension.

The CBA provides for restoration of wages and benefits for any such period of leave without pay if the teacher ultimately is not terminated from employment but here the penalty imposed on Elmore was termination.

Thus, said the court, if the issue of the educator's suspension without pay was properly before it, it would find that this provision in the CBA was valid and that under the circumstances the District was authorized to suspend the teacher without pay as provided by the CBA.

 

Searching an employer’s computer for evidence of employee misconduct

Searching an employer’s computer for evidence of employee misconduct
People v David E. Wilkinson; People v Michael Casey, 2008 NY Slip Op 28192, Onondaga County Ct, Fahey, J. [Not selected for publications in the Official Reports.]

Two employees were each charged with the crimes of Defrauding the Government in violation of Section 195.20 of the Penal Law; and two counts of Official Misconductin violation of section 195.00(1) and 195.00(2) of the Penal Law.

Both individuals asked the court to suppress evidence obtained by District Attorney’s “White Collar Crime Unit” as the result of a search of their computers, contending that they did not consent to the search and that the search warrant issued by the County Court was issued without sufficient probable cause. They also argued that the fruits of the search of their computers must be suppressed because they had an expectation of privacy in their computers; that the investigators from the District Attorneys Office did not have the consent of either of them to search the computers; and that the search warrant obtained after the viewing of the document on the Casey computer was the "fruit of the poisonous tree."

Addressing the issue of “consent,” the Court said that both employees “have demonstrated a legitimate and reasonable expectation of privacy in the computers searched.” Finding that the searches were conducted without such consent and that the seizures of the computers resulted solely from the warrantless search of the computer prior to the issuance of a search warrant, the motions made by both Wilkinson and Casey to suppress the resulting evidence was granted by Justice Fahey.

N.B. It should be remembered that this was a criminal proceeding and the rules of evidence are stringent and controlling in such litigation. Such is not the case in administrative disciplinary actions where the hearing officer or arbitrator is not bound by the formal rules of evidence.

Recent examples of the approval of the use of computer, or computer related, evidence to find an employee guilty of administrative disciplinary charges include:

Leo Gustafson v Town of N. Castle, 45 A.D.3d 766, Appellate Division, Second Department - The employee, an assistant building inspector with the Town of North Castle, was charged and found guilty of falsifying official records with respect to where he was while on duty. The individual was assigned a town vehicle for the purpose of making field inspections in connection with his employment. The vehicle had a global positioning system installed that transmitted information to the town’s computer reporting the vehicle’s location and movements. Based on this information, the Town charged the employee with falsifying town records as to his whereabouts. This, said the Appellate Division, constituted substantial evidence to support the determination that the employee was guilty of falsifying town records.

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U), Supreme Court, New York County, Docket Number: 0110481/2007 [Not selected for publications in the Official Reports] – the employee challenged an arbitrator’s determination terminating his employment with the New York City Department of Education after finding him guilty of downloading a file of pornographic material from his AOL email account and openly viewed such pornographic material from a school computer. Supreme Court rejected the individual’s claim that the arbitrator exceeded his authority under Education Law §3020-a, and the award terminating petitioner's employment is a violation of public policy and New York State Law.

Perry v Comm. of Labor, App. Div. 3rd Dept., 283 A.D.2d 754 – This unemployment insurance claimant challenged a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct. The nature of the individual's alleged misconduct: his misuse of his employer's computer equipment. The employee, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.

In addition,a number of courts have considered the question of an employee's right to privacy in using his or her employer's computer equipment. In Fraser v Nationwide Mutual Insurance Co., USDC, 135 F. Supp. 2d 623, the court held that an employee using his or her employer's computer equipment for personal business does not enjoy any "right to privacy" barring the employer’s reviewing the employee's e-mail that is stored in its computer system. Federal District Court Judge Anita B. Brody decided that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws.

As to the issue of the expectation of privacy, the appointing authority may wish to periodically advise its officers and employees that they have no right to privacy with respect to any data retrieved from the employer's computers, servers, video tapes, message tapes or other storage devices, electronic or otherwise.

The full text of the Wilkinson - Casey decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/06/searching-employers-computer-for.html

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

Issued during the week of September 10 - 16, 2012  [Click on the caption to access the full report]

DiNapoli: Tax Cap Reporting Made Easier

State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax cap reporting form has been enhanced to make it easier for local officials to accurately calculate their tax levy limit.

After analyzing reporting errors from the first year of implementation, DiNapoli’s Division of Local Government and School Accountability developed an improved online property tax cap reporting system to address the most problematic areas encountered by local officials.

DiNapoli: Town Deficit Caused By Inaccurate Budgeting

Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a $1.5 million deficit in its major fund balances at the end of 2010, according to an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed to repay more than $3 million in inter–fund loans it made between different tax bases.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits:

Eastchester Fire District;

Owasco Fire Department;

Mohawk Fire District;

Town of Colonie;

Town of Hinsdale;

Town of Peru;

Town of Red House;

Town of Waterford; and,

Village of Ballston Spa.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the audits of:

Achievement Academy Charter School;

Green Island Union Free School District; and,

Madison–Oneida BOCES.