Challenging the employee's dismissal during his or her probationary period

Challenging the employee's dismissal during his or her probationary period

Supreme Court dismissed a former probationary employee’s petition seeking to annul his termination from his position, the revocation of his New York City Department of Education [DOE] teaching certification, his placement of his name on the DOE's Ineligible/Inquiry list,* and his overall unsatisfactory rating for the 2010-2011 school year.

The Appellate Division sustained the lower court’s actions, explaining that the probationer had failed to establish that his termination, the revocation of his teaching certificate and his placement on the DOE's ineligible/inquiry list, was done in bad faith.

Addressing the individual’s allegation of bad faith, the court noted the record contained evidence of good faith on DOE’s part. For example, said the Appellate Division, the school principal’s "intention was not to terminate [the] petitioner's employment but to extend his probation for an additional year."

In addition, said the court, the record contained evidence of deficiencies in individual's performance during the probationary period.

As to the individual’s challenge to the revocation of his teaching certification and the placement of his name on the ineligible/inquiry list, the Appellate Division ruled that those challenges were not untimely but that Supreme Court had correctly sustained those administrative determinations.

Finally the Appellate Division pointed out that the lower court had correctly dismissed the individual’s challenge to his “U-rating” as it was premature because he had not yet exhausted his administrative remedies.

*Placing an individual’s name on the "Ineligible/Inquiry" list maintained by the New York Department of Education bars that individual from employment at any DOE school while his or her name remains on such list [McPherson v. New York City Dep't of Education, 457 F.3d 211].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07888.htm

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees

Stony Point Police Benevolent Association v Town of Stony Point, PERB Case #U-29118

Attorney Brian D. Nugent* advised NYPPL of a November 14, 2012 ruling by the Public Employment Relations Board [PERB] that considered “exclusivity of unit work” in the context of the employer's reassigning certain duties and functions being performed by employees in a negotiating unit to non-unit employees.

The Stony Point Police Benevolent Association [PBA] filed an improper practice charge with PERB contending that the Town of Stony Point violated §209-a.1(d) of the Civil Service Law [The Taylor Law] when it unilaterally reassigned certain security duties that had been performed exclusively by employees in the  negotiating unit represented by the PBA to non-unit employees.

PERB agreed with the Town that the parties' past practice established a discernible boundary between the work assignment at issue: the reassignment of certain security duties being performed by PBA unit members at the Town's Justice Court to non-unit part-time personnel who were not sworn officers.**

PERB, noting that the duties at issue were transferred from sworn police officers to civilian employees, ruled that under its precedents “it is well-settled that an employer’s civilianization of uniformed services constitutes a de facto change in job qualifications.”

PERB then considered the "balancing test" set out in its decision in Niagara Frontier Transportation Authority, 18 PERB 3083.

Finding that there had been a significant change in the "job qualifications" with respect to the "at-issue" duties, PERB said that the only loss suffered by the PBA and its unit members was the “loss of at-issue work” in contrast to a loss in the number of positions in the unit or a loss of unit member benefits.

PERB's conclusion: the Town had not violated §209-a.1(d) of the Taylor Law, explaining that the Town’s interests associated with the civilianization of the at-issue work outweigh the interests of the unit employees.

* Brian D. Nugent, Esq., Feerick Lynch MacCartney Pllc, http://www.flmpllc.com, represented the Town in this proceeding. 

** See Criminal Procedures Law §1.20.34

No legal obligation to initiate disciplinary charges against an individual

No legal obligation to initiate disciplinary charges against an individual

Decisions of the Commissioner of Education, Decision #16,427

A tenured high school teacher alleged that the high school superintendent neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against the principal of the high school at which he was serving.

The teacher alleged that he reported the school’s principal for alleged violations including failure to identify at-risk students as required by Title I of the federal Elementary and Secondary Education Act (20 USC §6301, et seq.) and scoring irregularities on New York State Regents mathematics examinations.

Following his reporting these alleged violations, the teacher claimed that the principal retaliated against him by [1] placing several disciplinary letters in his personnel file, [2] his being ordered to undergo medical examination and [3] his removal from the school to a “temporary assignment center.”*

The teacher asked the Commissioner to remove the high school superintendent and the Chancellor of the New York City Department of Education from their respective positions because they failed to take disciplinary action against the principal.

After considering a number of procedural issued, the Commissioner said that the teacher’s application “must be dismissed on the merits.”

The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

The teacher alleged that the high school superintendent “neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against [the principal].” However, said the Commissioner, the teacher s failed to meet his burden of proof as he did not establish how the superintendent’s failure to file an Education Law §3020-a charge against the principal, at his request, constituted a willful violation or neglect of duty under the Education Law, requiring her removal under Education Law §306 nor did the teacher show that the superintendent “was under a legal obligation to initiate Education Law §3020-a charges against [the principal].”

The Commissioner ruled that “On the record before me, I find that [the teacher] has failed to demonstrate that [the high school superintendent] has willfully neglected her duties [and] failed to establish any basis for [the superintendent’s] removal” and denied the teacher’s application.

* The teacher was later restored to service at the school..

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16427.html

A school district may sue its board members, employees, former board members and former employees for alleged mismanagement or misconduct

A school district may sue its board members, former board members, employees, and former employees for alleged mismanagement or misconduct

Roslyn Union Free Sch. Dist. v Barkan, 2012 NY Slip Op 07652, Appellate Division, Second Department

The Roslyn Union Free School District initiated a lawsuit  against Michael Barkan, Karen Bodner, William Costigan, Mary Ann Combs Ronna Niederman, Ellen Siegel, and Patricia Schissel to recover damages for alleged breaches of fiduciary duty and negligence.

Supreme Court denied their respective motions to dismiss the complaints insofar as asserted against each of them and they appealed the Supreme Court’s ruling to the Appellate Division.

The Appellate Division sustained the lower court's decision, rejecting their argument that, in the absence of specific enabling legislation, a school district may not commence an action against current or former members of its board of education.

Citing a decision by the Court of Appeals in a prior appeal in this action, Roslyn Union Free School Dist. v Barkan, 16 NY3d 643,the court explained that the plaintiff here – the Roslyn Union Free School District -- is a "corporation" and a corporation has the right to sue and be sued.

Accordingly, said the court, the school district has the right to prosecute an action "for injury and damages sustained by it by reason of mismanagement or misconduct in its affairs, waste of assets, or derelictions in duty by the directors, officers, agents or employees of the corporation."

Finding that the school district’s complaint “adequately alleges causes of action to recover damages for breach of fiduciary duty and negligence,” the Appellate Division dismissed the appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07652.htm

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 For the week of November 12 - 18, 2012 [Click on the caption to access the full report] DiNapoli: Improvements Needed At Saratoga Housing Authority Auditors found lax spending controls at the Saratoga Housing Authority, according to an audit released Friday by State Comptroller Thomas P. DiNapoli. DiNapoli: Schenectady’s Fiscal Condition Improving The City of Schenectady faces an unstable financial future, but increased economic development and better long–term financial planning point to signs of progress, according to an audit issued Tuesday by State Comptroller Thomas P. DiNapoli. DiNapoli: Dunkirk Mishandled Federal HUD Grant Funding The City of Dunkirk spent more than $1 million from the U.S. Department of Housing and Urban Development’s (HUD) Community Development Block Grant program on unauthorized or questionable activities, according to an audit issued Tuesday by State Comptroller Thomas P. DiNapoli. The findings have been referred to HUD for further review. Comptroller DiNapoli Releases Audits New York State Comptroller Thomas P. DiNapoli last Friday announced his office completed the following audits:  Department of Health;  Division of Housing and Community Renewal;  Office of Mental Health,  Quality of Internal Control Certification;  Office of Parks, Recreation and Historic Preservation;  Department of Health Overpayments for Hospital Readmissions; and,  Thoroughbred Breeding and Development Fund. Hurricane Sandy Relief Efforts Comptroller Thomas P. DiNapoli and volunteers from the Comptroller’s Office, along with family and friends, will deliver a semi–trailer truckload of supplies to residents of Long Beach at 1 p.m. Saturday, November 17, at the Long Beach Ice Arena as part of the Comptroller’s Office’s Hurricane Sandy relief campaign. The Comptroller and staff volunteers will unload the truck and assist the relief center with sorting and distribution of the household and cleaning supplies. The Comptroller’s Office continues to work with our partners in government to expedite the approval of all storm related contracts and expenditures. Additional items:

Saratoga Springs Housing Authority criticized in audit Comptroller’s Audit Finds Problems In Dunkirk NY Thruway toll hike on hold

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 ending November 16, 2012 [Click on the caption to access the full report]

Department of Health, Improper Payments Related to the Medicare Buy-In Program (2010-S-76)
From March 2006 through February 2011, Medicaid made nearly 260,000 improper payments, totaling about $26.8 million, for people enrolled in the Medicare buy-in program. The improper payments included $21.1 million in Medicare premiums for people who were ineligible for the buy-in program. This included improper payments of $1.9 for 532 people who were deceased. The improper payments resulted from insufficient DOH oversight, poor local district practices, and weaknesses in certain Medicaid claims processing controls. Auditors recommended DOH increase oversight of local districts, recover inappropriate Medicare buy-in payments, and improve the Medicaid claims processing system to ensure accurate payment of medical claims for individuals eligible for the buy-in program.
 
Division of Housing and Community Renewal, Quality of Internal Control Certification (2012-S-31)
In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring State agencies and public authorities to institute a comprehensive system of internal controls over their operations. By April 30 each year, DOB requires each covered agency to certify compliance with the act. On April 26, 2011, DHCR submitted its annual Internal Control Certification and reported full compliance with all provisions of the Act. DHCR's internal control certification was submitted timely. However, auditors identified several areas where the quality of the certification and/or the actual internal control program could be improved.

Office of Mental Health, Quality of Internal Control Certification (2012-S43) See 2012-S-31 above for description of requirements
OMH's Internal Control Certification was submitted on time and generally exhibited the necessary quality. Answers to most questions were complete and responsive, and were supported by records and documents maintained by the agency. However, OMH's certification did not provide sufficient detail in describing the results of its reviews of high-risk activities.

Office of Parks, Recreation and Historic Preservation, Quality of Internal Control Certification (2012-S-49) See 2012-S-31 above for description of requirements
On June 25, 2012, Parks submitted its annual Internal Control Certification and reported full compliance with all provisions of the Act. Parks’ Internal Control Certification was submitted, 56 days after the April 30 deadline.  Parks’ certification did not provide the required level of detail, did not support some statements with sufficient documentation, and was unable to provide evidence of the communication of the Internal Control Officer designee to all staff. The office has not yet completed a program of internal control review and its internal audit function has not undergone an external quality assessment as required by professional standards.

Department of Health Overpayments for Hospital Readmissions (Follow-Up) (2012-F-11)
An initial audit report examined whether the Department of Health (DOH) overpaid hospitals when the hospitals readmitted patients they had recently discharged. The audit identified overpayments totaling nearly $163,000 from a review of a judgmental sample of claims from five hospitals. The hospitals have already refunded the overpayments to Medicaid. The audit also identified four other hospitals with questionable claims. In a follow-up report, auditors found DOH officials have made progress in correcting the problems identified in the initial report. Of the five prior audit recommendations, three have been implemented, one has been partially implemented, and one is no longer applicable.

Thoroughbred Breeding and Development Fund, Selected Operating Practices (2011-S-36)
The fund has been receiving the statutory commissions due from the tracks, OTBs, and VLT operators. However, while assessing the statutory commission rates due the fund, we found that the New York Racing Association (NYRA) had shortchanged winning bettors by approximately $7.4 million between Sept. 15, 2010 and Dec. 21, 2011. This happened because NYRA was not complying with statutory retainage rates on exotic bets. As a result of our finding, which was identified in December 2011, an investigation was conducted by the NYS Racing and Wagering Board which led to the firing of NYRA’s president/CEO and its senior vice president/general counsel.  Auditors found the fund improperly underreported statutorily limited administrative expenses and promotional expenses by $399,908 for calendar years 2009 and 2010.

Allegations of negligent hiring and supervision of employee rebutted by evidence submitted by employer in support of its motion to dismiss the lawsuit

Allegations of negligent hiring and supervision of employee rebutted by evidence submitted by employer in support of its motion to dismiss the lawsuit

"John Doe 1," v Board of Educ. of Greenport Union Free Sch. Dist., 2012 NY Slip Op 07633, Appellate Division, Second Department

Parents of a student at the Greenport Union Free School District alleged that a teacher's aide employed by the school district engaged in an inappropriate sexual relationship with their child.

Among the complaints asserted against the school district and certain of its officers was a cause of action alleging that these defendants were [1] vicariously liable for the actions of teacher’s aide and [2] were liable for the negligent hiring and supervision of the aide.

The Appellate Division held that the evidentiary material submitted in support of the school district’s motion to dismiss the action as to the district and certain of its employees demonstrated that the parents did not have a cause of action against those defendants sounding in either vicarious liability or negligent hiring and supervision, explaining that all of the alleged improper acts by school aide took place off school premises and, or, outside of school hours, when the school defendants had no custody or control of the students and no duty to monitor or supervise the conduct of the school aide.

Further, said the court, the evidence demonstrated that the conduct of aide was personally motivated and constituted a complete departure from her duties as a school district employee, thereby negating any potential vicarious liability on the part of the school defendants for her alleged tortious acts.

As to the claim that the school district was liable for negligent hiring and supervision of the aide, the Appellate Division said that the evidence established that school district “properly investigated” the aide prior to her being hired, and that the school district had no notice of any propensity on her part to sexually assault students.

The court also noted that the parents did not allege that the school district defendants knew or had reason to know of any improper behavior by the aide nor was any nexus between aide's employment and the alleged sexual assaults, since they were separated by time, place, and the intervening independent acts of the aide.

Accordingly, ruled the Appellate Division, Supreme Court should have granted that branch of the school district's motion to dismiss the complaint insofar as asserted against the school district and its named officials.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07633.htm

Unless limited by the collective bargaining agreement, an arbitrator has broad powers to fashion an appropriate remedy in resolving a contract grievance

Unless limited by the collective bargaining agreement, an arbitrator has broad powers to fashion an appropriate remedy in resolving a contract grievance
Westchester County Corr. Officers' Benevolent Assn. v County of Westchester, 2012 NY Slip Op 07307, Appellate Division, Second Department

An arbitrator issued an award that directed the Westchester County Department of Correction to cease from denying correction officers the use of a floating holiday or floating vacation day where the maximum allowable number of correction officers who were permitted to take off from work on any particular day had not been reached. When the Westchester County Corr. Officers' Benevolent Association attempted to confirm the award, Supreme Court denied its Article 75 petition.

The Appellate Division reversed the Supreme Court’s ruling.

The Appellate Division explained that "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies," and a court may not "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes that its interpretation would be the better one," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 and other decisions.

Further, said the court, even where an arbitrator makes errors of law or fact, "courts will not assume the role of overseers to conform the award to their sense of justice."

In contrast, while "judicial review of arbitration awards is extremely limited," the Appellate Division noted that a court may vacate an arbitrator's award where the arbitrator "exceeded his [or her] power." Typically courts find that an arbitrator exceeds his or her power where his or her award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

In this instance the Appellate Division found that the Supreme Court’s determination that the arbitrator had exceed a specifically enumerated limitation on his power was incorrect.

The court noted that the collective bargaining agreement provides that "[a] grievance dispute arising under any term of the Agreement involving County policy or discretion may be submitted for arbitration only as to the question of whether or not the County policy was disregarded, or was applied in so discriminatory, arbitrary, or capricious a manner as to constitute an abuse of discretion." However, said the Appellate Division, this provision “does not contain any limitation upon the arbitrator's power to fashion an appropriate remedy where he or she determines that a County policy has been applied in so discriminatory, arbitrary, or capricious a manner as to constitute an abuse of discretion.”

Here, the arbitrator determined that a policy of the Westchester County Department of Correction that permitted only one correction officer per day to use a floating holiday or vacation day was applied in an arbitrary manner to the named grievant.

As the collective bargaining agreement did not set out any limitation on the arbitrator's power to award relief upon making such a finding, the court ruled that the arbitrator had not exceed his power by “directing the Department to cease and desist from denying correction officers the use of a floating holiday or floating vacation day where the maximum allowable number of correction officers who were permitted to take off from work on any particular day, as determined by the Department, has not been reached.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07307.htm

Terminating a probationary employee

Terminating a probationary employee

Wilson v City of New York, 2012 NY Slip Op 07570, Appellate Division, First Department

Supreme Court, New York County, Justice Alice Schlesinger granted a probationary New York City correction officer’s petition to vacate and annul the appointing authority's' decision to terminate him from his position and reinstated him to his former position without back pay.

The Appellate Division unanimously reversed Justice Schlesinger’s ruling “on the law” and affirmed the City’s determination terminating the correction officer from his position.

The court explained that “A probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason,” citing  Swinton v Safir, 93 NY2d 758.

Further, the Appellate Division said that the burden falls on the petitioner to demonstrate by competent proof that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason.*

There is one exception to this general proposition, however. A probationary employee appointed to a position in the Classified Service to be terminated prior to the end of his or her minimum period of probation is entitled to a hearing pursuant to §75 of the Civil Service Law or its equivalent as such probationary employees hold permanent appointment and enjoy limited tenure rights.

Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. The rationale for this was noted in McKee v. Jackson, 152 AD2d 54. Here the court said that the probationer is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position.

In contrast, as the Court of Appeals held in Gray v Bronx Developmental Center, 65 NY2d 904, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

* The Appellate Division said that the record demonstrated that the corrections officer was terminated during his probationary period for absenteeism, violation of the appointing authority's rules by failing to report to his post on one occasion, and by being arrested for obstruction of governmental administration while off-duty  and that he "failed to sustain his burden of showing bad faith or an improper motive."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07570.htm

Arbitration award held to be “irrational and defies common sense” for a second time remanded to a different arbitrator

Arbitration award held to be “irrational and defies common sense” for a second time remanded to a different arbitrator

Social Servs. Employees Union Local 371 v City of New York Admin. for Children's Servs., 2012 NY Slip Op 07403, Appellate Division, First Department

A Child Protection Specialist Supervisor II with the New York City Administration for Children's Services (ACS), pleaded guilty to grand larceny in the fourth degree, for filing false income tax returns using confidential ACS client information to fraudulently claim entitlement to state and local tax credits.

This matter was ultimately assigned to disciplinary arbitrator Rose F. Jacobs, who imposed a penalty of suspension, after which employee was to be restored to his former position.

On appeal of the lower court's confirmance, the Appellate Division vacated the arbitrator's award as "irrational and defies common sense" because "[r]einstated to the position of ACS supervisor, [the employee] again would have access to the ACS database from which he extracted the information he used to perpetrate his crime."*

The court remanded the matter to the arbitrator for her reconsideration of the penalty to be imposed. Notwithstanding the clear directive by the Appellate Division not to do so, the arbitrator again restored employee to his former position.

Supreme Court denied Local 371’s CPLR 7510 petition to confirm the second award of the arbitrator reinstating the employee to his former position and granted the City’s cross petition to vacate the award insofar as it orders the reinstatement of the employee.

Local 371 appealed and the Appellate Division unanimously agreed with Supreme Court's ruling. It then remanded the matter to a different arbitrator for reconsideration of the appropriate penalty explaining that it found, “once again and for the same reasons, that the arbitrator's award is irrational and defies common sense,” citing City School District of the City of New York v Campbell, 20 AD3s 313.

Accordingly, the Appellate Division, approving Supreme Court’s “vacated the award reinstating the grievant,” said that it was remanding the matter to a different arbitrator only for reconsideration of the appropriate penalty.

* See 56 AD3d 322, 322 [1st Dept 2008], lv dismissed 12 NY3d 867.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07403.htm