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October 23, 2012

Being at work is an essential job function


Being at work is an essential job function
Dickinson v New York State Unified Ct. Sys, 2012 NY Slip Op 06895, Appellate Division, First Department

The Appellate Division unanimously confirmed the termination of an employee found guilty of “certain disciplinary charges” that alleged both misconduct and incompetency due to excessive absenteeism and lateness.

Although the court agreed with the former employee that misconduct "requir[es] a showing of willfulness or intentional misconduct," it explained that "a finding of incompetence ... only requires evidence of some dereliction or neglect of duty."

There was, said the court, substantial evidence supporting the employer's determination and the employer was not required to warn the individual that his absences and tardiness could lead to dismissal notwithstanding the individual’s argument to the contrary.

The Appellate Division also ruled that the employer had not violated due process by relying on evidence of absences and tardiness outside the time period delineated in the specification of charges as such evidence was only considered in determining the appropriate sanction to be imposed and not to determine individual's guilt.

As to the penalty imposed, termination, the court said that it did not shock its sense of fairness as “[b]eing present at work is an essential job function” and an employee’s "disability ... may not be used to shield him from the adverse consequences of inadequate job performance."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06895.htm

October 22, 2012

New York State Center for Recruitment and Public Service (RPS) replaces the Governor’s Appointments Office


New York State Center for Recruitment and Public Service (RPS) replaces the Governor’s Appointments Office
Source: Office of the Governor

On October 22, 2012 Governor Andrew M. Cuomo announced the creation of the New York State Center for Recruitment and Public Service (RPS). RPS, to be housed within the Office of General Services (OGS), replaces the Governor’s Appointments Office. 

According to the Office of the Governor, “RPS will reorganize the state government’s existing archaic appointment process” and oversee hiring and placement for approximately 5,000 unpaid positions and 2,000 staff positions.

Characterizing the “old appointments process” as “disjointed and politicized” and lacking in access to the tools used by today’s recruitment professionals, OGS will release a Request For Proposal (RFP) seeking the services of an executive search firm that will be tasked with attracting qualified candidates to state government and help the state “build its own recruiting operation so that New York state government can compete with the private sector and become an employer of choice.”

Other objectives include:

1. Better matching skills with available positions and candidates

2. Reforming the background check process for candidates

3. Establishing and tracking benchmarks for success

4. Strengthening the state’s competitive position in the “talent marketplace” by maximizing social media opportunities

5. Building a “New York State Recruitment Portal” – an online, interactive website for interested candidates to explore and apply to positions.

Employee’s psychiatric problems rather than misconduct leads to a recommendation that the employee be placed on Section 72 leave for disability


Employee’s psychiatric problems rather than misconduct leads to a recommendation that the employee be placed on Section 72 leave for disability
New York City  Human Resources Admin. v. Anonymous, OATH Index No. 1781/12 

An employee diagnosed with multiple psychiatric problems was found unfit to perform the duties of the position due to being frequently unable to interact with co-workers and supervisors without engaging in disruptive, angry, and sometimes “frightening behavior.”

OATH Administrative Law Judge Faye Lewis found that the employer had made efforts to modify the duties of the position but the individual’s behavior “was persistently disruptive.”

After considering the disciplinary charges filed against the individual, Judge Lewis recommended that the employee be placed on an involuntary leave of absence pursuant to §72 of the Civil Service Law. [Presumably the ALJ was referring to placing the employee on such leave pursuant to §72.5 of the Civil Service Law.*]

As the ALJ determined that the employees acts that caused disciplinary charges to be served were the result of a disability, she found that the charges of misconduct filed against the individual were not sustained.

* An individual placed on such leave subsequently terminated from the position pursuant to §73 of the Civil Service Law may apply for reinstatement within one year of his or her being found physically and mentally fit to resume performing the duties of  his or her position.

The decision is posted on the Internet at:

Court rules that it lacks jurisdiction to consider a motion to vacate an arbitrator’s action absent a “final award”


Court rules that it lacks jurisdiction to consider a motion to vacate an arbitrator’s action absent a “final award”
Jordan-Elbridge Central School District v Anonymous, RJI #33-12-2305, Index #2012-35852, Supreme Court Onondaga County, Justice Donald A. Greenwood

An Education Department-appointed Section 3020-a arbitrator directed the Jordan-Elbridge Central School District to produce e-mails exchanged between and among ten individuals over a three-year period demanded by Anonymous, upon whom disciplinary charges had been served, in the course of discovery.*

The school district, claiming that the arbitrator had exceed his authority in directing it to provide copies of these e-mails to Anonymous, asked Judge Greenwood to vacate the arbitrator’s order.

Anonymous, in rebuttal, asked the court to dismiss Jordan-Elbridge’s petition on the grounds that the court did not have jurisdiction to consider the matter. The court agreed, commenting that “The law is well settled that in order for [it] to intervene or even entertain a suit seeking court intervention there must be an [arbitration] award within the meaning of [CPLR 7511],“ citing Mobile Oil Indonesia v Asamora Oil, 43 NY2d 276.

Further, said Justice Greenwood, the Appellate Division, Fourth Department, addressed this issue in Geneva City School District v Anonymous, 77 AD3d 1365, and held that the hearing officer’s granting summary judgment dismissing eleven of sixteen then pending disciplinary charges constituted an “interim award” rather than a final determination and thus the court did not have jurisdiction to consider the district's objections to such dismissals at that time.

Accordingly, the court granted Anonymous’ motion to dismiss the school district’s petition for lack of jurisdiction.

* Although discovery is not generally available in administrative disciplinary proceedings, Education Law §3020-a.3 c.(iii)(C) , which controls in the discipline of educators, however, specifically provides for discovery.

The court’s ruling is included in a newspaper report of the decision by reporter Catie O’Toole appearing in the Syracuse Post-Standard, October 19, 2012 and posted on the Internet at:
http://www.syracuse.com/news/index.ssf/2012/10/jordan-elbridge_school_distric_13.html

October 21, 2012

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 October 15 - 21, 2012 [Click on the caption to access the full report]

Fiscal Stress Monitoring System for Local Governments

NY communities are facing hard times. Many are struggling to do more with less. Most have been substantially impacted by revenue shortfalls since the onset of the Great Recession. There are no quick fixes. It's time for an honest conversation about the numbers. Comptroller DiNapoli's early warning system will help the public and local officials do just that. Click here to see a video on the fiscal stress monitoring system.


DiNapoli: Treasurer Stole $200,000 From Woodstock Fire Company

The former treasurer of Woodstock Fire Company No. 3 embezzled more than $200,000 over a five year period, according to an audit released last Friday by State Comptroller Thomas P. DiNapoli. As a result, Dale D. Hughes, Jr., 64, was arrested and charged by Ulster County District Attorney D. Holley Carnright with grand larceny in the second degree. Hughes was arraigned before Woodstock Town Court Justice Richard Husted and remanded to the Ulster County Jail in lieu of bail.


Comptroller DiNapoli Releases Municipal Audits

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







Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed an audit of the Fort Plain Central School District.

October 19, 2012

A letter placed in an employee file indicating “serious misconduct” that could negatively impact his or her eligibility for future promotion goes beyond “constructive criticism”


A letter placed in an employee file indicating “serious misconduct” that could negatively impact his or her eligibility for future promotion goes beyond “constructive criticism”
D'Angelo v Scoppetta, 2012 NY Slip Op 06989, Court of Appeals

May a letter from the Assistant Commissioner of the Fire Department of the City of New York (Department) to a firefighter advising him that he violated the Department's Code of Conduct and Equal Employment Opportunity (EEO) Policy could adversely affect his eligibility for promotion in the future be made part of firefighter's permanent “EEO file” without first providing him an opportunity for a hearing pursuant to §15-113 of the Administrative Code of the City of New York?

Supreme Court had concluded that "the letter [was] a disciplinary reprimand and not a critical evaluation" and, therefore, the firefighter had the right to a formal hearing and other due process safeguards. * The Appellate Division agreed with the lower court’s ruling.

The Court of Appeal affirmed the lower courts’ rulings, holding that the firefighter was entitled to a due process hearing before the Department may place such a letter in his permanent file.

The Department conceded that the Administrative Code §15-113 required a hearing before its employees could be subject to punishment by reprimand but contended that a hearing was not necessary in this instance because the letter it placed in firefighter's permanent EEO file was not a formal reprimand but merely a critical evaluation not subject to the same due process protections. The Court of Appeals, as did the lower courts, disagreed.

Citing Holt v Board of Educ. of Webutuck Cent. School Dist. (52 NY2d 625, the Court of Appeals contrasted the Department’s action with school administrators placing letters in the permanent files of teachers critical of their performance without conducting §3020-a disciplinary hearings.

In one instance, the teacher was admonished for failing to maintain an orderly classroom after he had been directed to do so and for interrupting the class of another teacher. The letters characterized the teacher as incompetent and insubordinate. A second teacher had been sent a letter warning him that his regular absences from his assigned duties violated school policy. The court said it had concluded these letters did not trigger the due process protections of Education Law §3020-a because they were simply "critical evaluations" and not "formal reprimand[s]."

Although the letters sent to the teachers were "sharply critical," the Court of Appeals said that the fundamental purpose of the communications was not to punish but to identify "a relatively minor breach of school policy and to encourage compliance with that policy in the future."

The facts in the firefighter’s case, said the court, “are readily distinguishable from the facts in Holt.” 

While the teachers had received a letter from an immediate supervisor criticizing their performance, the firefighter was the subject of a formal investigation conducted by the Department's EEO office over a two-year period in response to the complaint alleging that he had used “racially offensive language” that had involved the interviewing of several “eyewitnesses” as well as the firefighter.

Significantly, the court noted that ultimately the EEO office determined that the evidence it had collected substantiated the complaint and it supplied a detailed report to the Assistant Commissioner. The Assistant Commissioner then reviewed the EEO office's findings and then “conferred with the Commissioner himself who ultimately approved the EEO office's determination.” This said the court “stands in contrast to the letters in Holt, which only reflect the views of a particular supervisor.”

Further, said the court, the letter to the firefighter noted that the document "serve[d] as a formal Notice of Disposition of the filed Complaint" and “in no uncertain terms,” informed the firefighter that “a thorough investigation revealed that he ‘exercised unprofessional conduct’ and ‘made an offensive racial statement’ [and] as a consequence of his misconduct, he was required to review and sign an EEO Advisory Memorandum and participate in further EEO training.”

The Court of Appeals said that it agreed with the firefighter that “the requirement to participate in additional EEO training is a form of discipline and not, as the Department contends, mere encouragement to comply with EEO policy.”

In addition, the decision notes that the Department conceded at oral argument that the EEO's finding that [the firefighter] was in breach of its racial discrimination policy is serious misconduct that could negatively impact his eligibility for future promotion.

Concluding that the letter sent to the firefighter constituted a “formal reprimand under Administrative Code §15-11,” the court ruled that the Department had denied the firefighter his right to administrative due process by placing the letter in his file without first conducting a hearing. Affirming the Appellate Division’s ruling, Justice Smith dissenting, the majority of the court ruled that the letter to which the firefighter had objected was properly expunged from his permanent EEO file.

* Supreme Court noted that it could not order a hearing because, as the parties conceded, the applicable statute of limitations for conducting such a hearing had expired.

COMMENT: As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work constitutes a lawful means of instructing the employee. 

In Matter of Fusco, Comm. of Ed. Decision 14,396 and Matter of Irving, Comm. of Ed. Decision 14,373, the Commissioner of Education found that the alleged "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance. 

In Fusco’s case, the Commissioner said that “contents of the [counseling] memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was "intended to encourage positive change" in Fusco’s performance. The Commissioner noted that the memorandum "'contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .

The D'Angelo decision is posted on the Internet at:


Prima facie showing that bad faith underlies the basis for termination sufficient to defeat the employer’s motion to dismiss the action


Prima facie showing that bad faith underlies the basis for termination sufficient to defeat the employer’s motion to dismiss the action

Supreme Court vacated the board of education’s determination terminating a school teacher and remanded the matter for a “new investigation and hearing under the auspices of a different investigator nunc pro tunc* and sub silentio".**Supreme Court also denied the board’s motion to dismiss its former employee’s petition.

The Appellate Division vacated the lower court ruling in part, directing the employer to serve an answer within 20 days of service it being served with a copy of its ruling.

The Appellate Division explained that the former employee “has sufficiently alleged that the investigator from the board’s Office of Special Investigations acted in bad faith in making the determination that formed the basis for [the board's] terminating [the former employee]” and the board’s motion to dismiss its former employee's petition was properly denied. 

However, said the court, “the motion court erred in determining the merits of the proceeding without affording [the school board] an opportunity to serve an answer upon the denial of its motion to dismiss,” citing Samuel v Ortiz, 105 AD2d 624.

* Latin for “to make a new decision which, presumably, would be applied “retroactive.”

** Latin for “without notice (of the earllier record) being taken.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06882.htm

October 18, 2012

Employees terminated following their "double billing" for car expense


Employees terminated following their "double billing" for car expense 
OATH Index Nos. 1125/12 & 1126/12

The New York City Department of Finance brought charges against a tax assessor and a supervisor. The Department alleged that the two workers, who were sisters, fraudulently double-billed the Department for travel expenses at times when they traveled together in the same car.

The two employees contended that their conduct was permitted by Department rules and that they were both entitled to receive reimbursements because they jointly owned two vehicles.

However, evidence showed they had repeatedly submitted false odometer readings and although the Department did not have a specific rule against sharing cars and double-billing, the sisters had been told they could not both submit an expense report when traveling together for “a car allowance.”

OATH Administrative Law Judge Kevin A. Casey found that fraud could be the basis of discipline without a specific rule, and the charges were sustained. ALJ Casey recommended termination of their employment. The appointing authority adopted the ALJ’s recommendation.

The decision is posted on the Internet at
http://archive.citylaw.org/oath/12_Cases/12-1125.pdf

Procedural errors and omissions require the remanding the decision terminating plaintiff employees for further consideration


Procedural errors and omissions require the remanding the decision terminating plaintiff employees for further consideration

Four former employees of the City challenged the City’s terminating their employment.

Supreme Court referred the issues of the employees' "employment status at the time of their termination and . ... whether any of them were required to exhaust any administrative remedies under the Civil Service Law prior to commencing this Article 78 proceeding" to a Judicial Hearing Officer (JHO).

The JHO issued a determination holding that “none of the employees had a right to a post-termination [sic] hearing under the Civil Service Law.” Accordingly, said the JHO, none of the employees had any duty to exhaust administrative remedies. The JHO also found that none of the employees was a policymaking employee and, thus, that they could not be fired merely for political reasons and further ruled that all four had been dismissed from their positions with the City for political reasons.

The City filed "objections" to the JHO's determination. 

Specifically, the City objected to the JHO's determination that none of the employees was a policymaking employee. Additionally, the City asserted that the JHO went beyond the scope of the order of reference by determining that the employees were fired for political reasons.

The Appellate Division remitted the employees' petition to Supreme Court, explaining:

1. The challenged determinations, relating to the termination of the employees' employment, were not "made as a result of a hearing."

2. The administrative record was not sufficient for it to decide the entire proceeding on the merits in the interest of judicial economy.

3. Any motion for reconsideration of the substantive issues decided by the JHO must be directed to the JHO for resolution.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06953.htm

October 17, 2012

Reimbursing a school board member's legal expenses incurred in litigation


Reimbursing a school board member's legal expenses incurred in litigation  
Decisions of the Commissioner of Education, Decision No. 16,422

The Commissioner of Education, after denying the application of the school board seeking to remove one of its members for allegedly “disclosing confidential information to a third party,” considered one additional administrative matter. The board member that the board sought to have removed from the board asked the Commissioner to grant her a certificate of good faith pursuant to Education Law §3811(1). Such a certificate  would required the school district to reimburse her the “reasonable legal expenses” she incurred in the proceeding.

§3811(1), in pertinent part, provides for the reimbursement of reasonable legal expenses incurred by a board member when “the trustees or board of education of any school district … have been or shall be instructed by a resolution adopted at a district meeting to defend any action brought against them, or to bring or defend an action or proceeding touching any district property or claim of the district … as well as all costs and damages adjudged against them…."

The Commissioner rejected the board member’s request, explaining that Education Law §3811(1) does not provide for the reimbursement of legal expenses incurred by a board member in defending “a criminal prosecution or an action or proceeding” brought against a board member by a school district, including proceedings before the Commissioner of Education.

Accordingly, said the Commissioner, the board member was not entitled to a certificate of good faith because the application seeking the removal of the board member was brought by the school district of which the board member was an officer 

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume52/d16422.html

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