An adverse disciplinary hearing determination must be supported by substantial evidence

An adverse disciplinary hearing determination must be supported by substantial evidence

The appointing authority adopted in part and rejected in part the recommendation of a Civil Service Law §75 hearing officer that found the employee guilty of misconduct and/or incompetence. The penalty imposed: termination.

Supreme Court rejected the former employee’s Article 78 petition seeking to vacate the appointing authority’s decision.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that a judicial review of administrative determinations in employee disciplinary cases made after a hearing under Civil Service Law §75 is limited to a consideration of whether the determination was supported by substantial evidence.*  Here, said the court, there was substantial evidence in the record to support the determination that the individual was guilty of misconduct

As to the penalty imposed but the appointing authority, dismissal, the Appellate Division, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, said that u under the circumstances presented the termination of the individual's employment “was not so disproportionate to the offense committed as to be shocking to one's sense of fairness.”

* In contrast, in Christopher v Phillips, 160 A.D.2d 1165, motion to appeal denied, 76 N.Y.2d 706, the court ruled that “if a hearing is not required by law, the substantial evidence standard of review does not apply [and] the appropriate standard for the purpose of judicial review [in such a situation] is whether the determination is arbitrary or capricious.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02247.htm

Using hearsay evidence in a disciplinary hearing
273 A.D.2d 103, motion for leave to appeal denied, 95 N.Y.2d 766

A New York City police officer was terminated from his position after being found guilty of having "assaulted and caused physical injuries” to two individuals.

The officer appealed, contending that the Commissioner's determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that "[t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence."

According to the decision "[h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined."

This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at the officer's departmental disciplinary hearing, said the court, "was a matter to be assessed by the Deputy Commissioner who presided at the trial.”

Accordingly, said the court, determinations concerning the credibility of witnesses "is largely beyond our power of review.”

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 ending April 7, 2013 [Click on the caption to access the full report]

DiNapoli: Audit Links Six Downstate Dentists to $2.3 Million Medicaid Fraud

New York State Comptroller Thomas P. DiNapoli released his final auditThursday of a fraudulent Brooklyn dental practice after a joint investigation with Attorney General Eric T. Schneiderman resulted in a one–to–three–year sentence plus nearly $700,000 in restitution from owner Lawrence J. Bruckner.

A.G. Schneiderman And Comptroller Dinapoli Announce Prison Sentence For Brooklyn Dentist Who Defrauded Medicaid

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli Thursday announced the sentencing of Lawrence J. Bruckner, a Brooklyn dentist on charges he defrauded the Medicaid program by unlawfully paying recruiters to solicit homeless Medicaid patients with cash and billing taxpayers under his son’s name for services the son never provided. Bruckner failed to pay taxes on payments he received from other dentists who worked at his clinics. He has paid nearly $700,000 in restitution and today received a state prison term of 1 to 3 years as a result of this joint investigation by the offices of the state Attorney General and Comptroller.

DiNapoli Releases Bond Calendar for Second Quarter

New York State Comptroller Thomas P. DiNapoli Tuesday announced a tentative schedule for the planned public sale of obligations for the state, New York City, and their major public authorities during the second quarter of 2013.

Arbitration award remanded “for the imposition of an appropriate lesser penalty” based on the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her

Arbitration award remanded “for the imposition of an appropriate lesser penalty” following the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her

Specification A-1 of the charges preferred against a tenured New York City school  teacher by the New York Department of Education [DOE] alleged that she had engaged in the scheme to avoid payment of non-resident tuition by enrolling her granddaughter in the school at which she taught. The arbitrator found the school teacher guilty of that Specification, among others, and imposed the penalty of dismissal.

Supreme Court confirmed the arbitration award but on appeal the Appellate Division unanimously vacated the arbitrator’s finding that the teacher was guilt of Specification 1-A-1 of the charges. Accordingly, the Court vacated the penalty of termination and remanded the matter for the imposition of an appropriate penalty.

According to the decision, DOE had conceded at the hearing that teacher's granddaughter was entitled to a tuition-free education in New York City public schools and the hearing officer made no finding that the child was not a City resident. Further, said the Appellate Division, the record did not establish that the child was not a City resident.

Thus, said the court, there was no rational basis upon which to conclude that teacher had engaged in a scheme with the purpose of defrauding DOE out of non-resident tuition.

On the other hand, the court noted that the teacher conceded, and there was substantial evidence in the record to support a finding of guilt with respect to Specification 1-B of the Charges filed against her -- that she acted in concert to file a false instrument.

Specification 1-B alleged that the teacher had engaged in a scheme to use a school aide's address to enroll her granddaughter in the school at which she taught, and that she improperly obtained the school's services (Specification 1-A-2), as the child should not have been enrolled in that school.

The Appellate Division remanded the matter “for the imposition of an appropriate lesser penalty.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02333.htm

Employee’s rude conduct did not rise to the level of constituting a “physical altercation” with another employee

Employee’s rude conduct did not rise to the level of constituting a “physical altercation” with another employee

Decisions of the NYC Office of Administrative Trials and Hearings, Case 12-2095

The Department of Correction charged a correction officer with fighting with another officer, using profane language, leaving her post, and bringing an unauthorized bag near her post.

OATH Administrative Law Judge Kara J. Miller found that the Department proved all of the charges except the claim that officer engaged in a physical altercation with another officer.

The ALJ decided that the testimony at the disciplinary hearing showed that, at most, the accused officer may have pushed past the other officer rudely and brushed against her. Judge Miller did not find this sufficient to constitute misconduct.

Accordingly, she recommended a penalty of a 15-day suspension with credit for time served.   

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-2095.pdf

Government Information Networks and Technology lecture to be held on April 5, 2013

Government Information  Networks and Technology lecture to be held on April 5, 2013 

The Government Law Center and the Albany Law Journal of Science & Technology announced that a Symposium focusing on "Government/Information/Networks/Security" will be held at the Albany Law School in the DAMC Room at 1:00 p.m. on April 5, 2013.   

Experts from around the country will convene at Albany Law School to discuss issues of cybersecurity, freedom of information law, and other topics related to computer networks and information security.

The symposium is free and open to the public. Registration is encouraged. 

For more information, contact 518-472-5855 or mkernan@albanylaw.edu or go to http://www.albanylaw.edu/cybersecurity.   

A reception with the panelists will immediately follow the program.

The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise

The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise
City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2013 NY Slip Op 02162, Court of Appeals*

Was the phrase "in effect" as used in Article 22, §8 of the Retirement and Social Security Law sufficient to trigger the Triborough Doctrine preserve a provision set out a collective bargaining agreement [CBA] that had expired and not been replaced by a successor agreement.

The City of Yonkers and the Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, had periodically extended a CBA dated July 1, 2002 by “stipulation.”. The last such stipulation extended the agreement through June 30, 2009. The genesis of this litigation was a provision in the CBA whereby the City agreed to offer its firefighters the option of enrolling in one of two retirement plans, and agreed that it would bear "the complete cost" of contributions, "pursuant to State law."

In 2009, however, Legislature amended the Retirement and Social Security Law, effective in January 2010, requiring new members of the New York State and Local Police and Fire Retirement System to enroll in a new Retirement Tier, Tier VI. Tier VI required its members to contribute 3% of their salaries toward their retirement allowance.

The amendment set out a “narrow exception” to this 3% contribution requirement.

"Notwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law" [emphasis in the opinion]..

The City, citing the June 30, 2009 termination date of the CBA, required firefighters who were hired after that date to enroll in Tier VI and to contribute 3% of their wages towards their retirement benefits. In response, the Union filed an improper practice charge with the New York State Public Employment Relations Board (PERB), alleging that the City had erred in failing to apply the CBA to firefighters hired by the City after the CBA's termination date.

The Union, relying on the exception contained in Article 22, §8 of the Retirement and Social Security Law, as well as New York Civil Service Law §209-a (1) (e), which codified the Public Employment Relations Board’s (PERB) so-called Triborough Doctrine,** filed an improper practice charge with PERB contending that the City had failed to apply the retirement provision in the now expired CAB as required by §209-a (1) (e) of the Civil Service Law.

When PERB referred the matter to arbitration, the City commenced a CPLR Article 75 proceeding seeking a permanent stay of arbitration on the ground that arbitration is barred by Civil Service Law §201(4) and Retirement and Social Security Law §470.

Although Supreme Court rejected this argument and dismissed the City’s petition, the Appellate Division reversed the lower courts ruling, holding that the statutes cited by the City “are a bar to arbitration.” The Court explained that "the CBA, which terminated by its own terms in June 2009, was no longer 'in effect' at the time of the effective date of Article 22 of the Retirement and Social Security Law," with the result that "the exception set forth in §8 of that Article is inapplicable."

The Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the Triborough Doctrine, upon which the Union relies, had as its purpose "to preserve the status quo in situations where a CBA between a public employer and its employees has expired and a new one has yet to be agreed upon."

As no successor CBA was negotiated between the parties in the present case, the Triborough Law would apply and the CBA's terms would be continued, unless contradicted by statute. Significantly that part of the CBA that required non-contributory plans is rendered unlawful by Article 22 of the Retirement and Social Security Law, which prohibits such plans, unless the §8 exception is applicable in this instance.

The Court of Appeals rejected the Union’s argument that the §8 exception applies because the Triborough Law extends the terms and conditions set out in CBAs that have expired, holding that “This was not the Legislature's intent. If the Legislature had intended to invoke the Triborough doctrine, it would certainly have made that explicit.”

Rather, said the court, “the Legislature, having set forth the §8 exception for CBAs that are "in effect," expressly states that eligibility to join a CBA's retirement plan "shall not apply upon termination of such agreement." This language, the Court of Appeals concluded, “makes clear that the Legislature did not intend to apply the exception to agreements that had expired and could only be deemed to continue through the Triborough Law.”

* See, also, City of Oswego v Oswego City Firefighters Assn., Local 2707; 2013 NY Slip Op 02163; Court of Appeals, posted on the Internet at:  http://www.nycourts.gov/reporter/3dseries/2013/2013_02163.htm

** See 5 PERB 3037; 5 PERB  4505.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02162.htm

Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request

Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request

Thomas v New York City Dept. of Educ., 2013 NY Slip Op 01026, Appellate Division, First Department

Noting that the Legislature declared in enacting Public Officers Law §84, "[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society and that access to such information 'should not be thwarted by shrouding it with the cloak of secrecy or confidentiality,'" the Appellate Division rejected the New York City Department of Education General Counsel’s denial of Michael P. Thomas’ administrative appeal challenging the refusal of the Central Record Access Officer [CRAO] to provide him with records demanded in his FOIL request.

The General Counsel had concluded that CRAO's determination denying Thomas’ request fell "well within the bounds" of the “Committee on Open Government's published advisory opinions denying FOIL requests in the context of unsubstantiated complaints, and that redaction of identifying details would not protect the personal privacy of the subject individuals” because Thomas had filed the underlying complaint and therefore knew the identity of the persons even were their names redacted.

The Appellate Division disagreed, holding that under FOIL government records are presumptively available to the public unless they are statutorily exempted by Public Officers Law §87(2) and "Those exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption" citing Hanig v State of N.Y. Dept. of Motor Vehicles. 79 NY2d 106.

Finding that Thomas’ complaint pertained to certain administrators' performance of their official duties when applying for and using federal funds, the Appellate Division remanded the matter to the lower court “for an in camera inspection of the documents to determine if redaction could strike an appropriate balance between personal privacy and public interests and which material could be properly disclosed.”

In addition, the Appellate Division directed the lower court to determine whether portions of the documents may be exempt from disclosure as intra- or inter-agency records that are not statistical or factual data under Public Officers Law §87[2][g].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01026.htm

Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law

Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law

The Westchester County Commissioner of the Department of Environmental Facilities adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the individual guilty of certain disciplinary charges, and terminated the individual's employment.

The Appellate Division sustained the Commissioner’s decision, explaining that “The standard of review of an administrative determination ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ is whether the determination is supported by substantial evidence.”

Finding that substantial evidence in the record supported the determination that the individual was guilty of the disciplinary charges, the court said that in this instance the penalty imposed, termination, was not so disproportionate to the offense as to be shocking to one's sense of fairness.

In contrast, in Christopher v Phillips, 160 A.D.2d 1165, motion to appeal denied, 76 N.Y.2d 706, the Appellate Division, Third Department, decided a case in which the due process implications of a “non-mandatory” disciplinary hearing were considered.

In Christopher the court ruled that “if a hearing is not required by law, the substantial evidence standard of review does not apply....” Instead, said the Appellate Division, “the appropriate standard for the purpose of judicial review [in such a situation] is whether the determination is arbitrary or capricious.” The fact that a hearing was held even when not required by law does not alter the applicability of that standard.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02071.htm

The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement

The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement
State of New York - Unified Ct. Sys. v Association of Surrogate's & Supreme Ct. Reporters within the City of New York, 2013 NY Slip Op 02155, Appellate Division, First Department

In Unified Court System the Appellate Division considered the viability of demanding that an appeal of a grievance challenging disciplinary action taken against an employee be submitted to arbitration. Its conclusion: the availability of arbitration to challenge an employer’s disciplinary decision is controlled by the appeal procedure set out in the collective bargaining agreement.

Although the typical collective bargaining agreement [CBA] provides that an appeal of a grievance challenging disciplinary action taken against an employee is ultimately to be submitted to arbitration, in this instance the Appellate Division unanimously reversed a Supreme Court order compelling the arbitration of a disciplinary termination of an employee in the collective bargaining unit and “permanently stayed” the arbitration.

The court explained that although it did not find any statutory, constitutional or public policy prohibition barring the arbitration of this dispute involving the termination of an employee, the relevant CBA did not provide for the arbitration of the employer's disciplinary determination.

The Appellate Division said that its review of the CBA indicated that the parties had not agreed to arbitrate such a dispute. Rather, said the court, the CBA provided that an employee aggrieved by a disciplinary penalty or punishment “may appeal from the determination by petition to the Chief Administrative Judge or by an application pursuant to CPLR Article 78.”

Accordingly, the arguments presented in support of the Association's demand for arbitration to consider the matter as a contract grievance or, in the alternative, as a non-contract grievance, were deemed irrelevant and the Article set out in the CBA that the Association contended provided for the arbitration of this dispute was held inapplicable in this instance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02155.htm