Employee’s argument that “mitigating circumstances” should temper imposing the penalty of dismissal from her position rejected

Employee’s argument that “mitigating circumstances” should temper imposing the penalty of dismissal from her position rejected

Thornton v Edwards-Knox Cent. Sch. Dist. Bd. of Educ., 2013 NY Slip Op 02450, Appellate Division, Third Department

A school bus driver [Driver] was promoted to Senior School Bus driver in 2006. She served in that capacity until her position was abolished in 2010 and she was returned to her previous duties as a bus driver.

The appointing authority then discovered that Driver had neglected to complete certain required records during the 2009-2010 school year and ultimately filed disciplinary charges against her pursuant to Civil Service Law §75 setting out nine counts of incompetence and misconduct alleging, among other things, that:

[1] She had failed to properly complete and maintain records required by several state agencies;

[2] She had provided bus drivers with advance notice of purportedly random drug and alcohol testing; and

[3] She had sent a disparaging email about the school district to transportation supervisors in other school districts.

The Hearing Officer found Driver guilty of seven of the nine charges and recommended that she be discharged. The appointing authority adopted the Hearing Officer's findings and recommendation as to the penalty to be imposed and dismissed Driver, who subsequently commenced a CPLR Article 78 proceeding challenging her termination. 

Supreme Court dismissed her petition. The Appellate Division sustained the Supreme Court’s ruling, explaining that in evaluating Driver’s appeal it ‘must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness.”

The Appellate Division first addressed Driver’s return to the position of bus driver after serving as senior bus driver noting that it was not a "demotion," but, rather, occurred as specified in a memorandum of understanding pursuant to which the position of senior bus driver had been created in contrast to being a disciplinary consequence of Driver's misconduct.

The decision notes that while Driver sent the disparaging email after being reinstated to a school bus driver position because she was "upset" about losing the post, most of the remaining charged conduct had occurred prior to the elimination of the position, but appointing authority neither learned about it nor took disciplinary action against Driver until after she had left the Senior School Bus Driver position.

The Appellate Division said that Supreme Court had noted that the charges here did not arise from a single issue or act, nor were the shortcomings limited to matters that did not impact student safety. Among the examples of misconduct described was the Driver “just before leaving the senior bus driver position in late August 2010 [had] discovered that she had ‘forgot[ten],’ for a period of almost a full year, to maintain certain required certifications for the school district's bus drivers” and wrote a note to successor that she placed “in a drawer with the unfinished paperwork and left for a vacation.”

The school district's employees testified that this and Driver's other failures endangered the school district's eligibility for state transportation aid and placed it at risk of fines and other legal and financial consequences and “[m]ost seriously, the safety of the school district's students was jeopardized by Driver's warnings to drivers of the dates of random drug and alcohol tests.”

As to mitigating circumstances that might temper imposing the penalty of dismissal, the Appellate Division said it was “unpersuaded by Driver's argument that, in light of her unblemished disciplinary record as a bus driver, she should not be terminated for her offenses involving supervisory and administrative responsibilities, as these are not part of her work as a bus driver” and found that the Driver's termination was neither disproportionate to her misconduct nor to the risk of harm it posed to the school district.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02450.htm

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013.

The U.S. Citizenship and Immigration Services, Department of Homeland Security, advises employers that after May 7, 2013* only the newly revised federal Employment Eligibility Verification Form (Form I-9)** may be used 

New York State Department of Civil Service has added Advisory Memorandum 13-1 to the State Personnel Management Manual. This Manual applies to officers and employees of the State as the employer.

Advisory Memorandum 13-1, prepared by Marc Hannibal, Special Counsel, addresses the use of the newly revised federal Employment Eligibility Verification Form (Form I-9).

N.B. With respect to I-9 Forms prepared after May 7, 2013, only the new March 8, 2013 version of the Form I-9 will be accepted. The form and instructions for its use is posted on the Internet at:

 http://www.uscis.gov/files/form/i-9.pdf.

Political subdivisions of the State may wish to check with the responsible local civil service commission or personnel officer concerning the processing of the Form I-9 in their respective jurisdictions.

The Department of Civil Service’s Advisory Memorandum 13-1 is set out below:

 =================

This Advisory Memorandum updates State Personnel Management Manual Advisory Memorandum #09-01, dated March 13, 2009, located in Sections 1000 and 1800. Note on both copies of the 2005 Memo that this Advisory Memorandum should be consulted.

United States Citizenship and Immigration Services (USCIS) has published a revised Employment Eligibility Verification Form I-9 for use. Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions for both employees and employers.

Effective March 8, 2013:

1. Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.

2. Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.

3. After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

The revision date of the Form I-9 is printed on the lower left corner of the form.

Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.

Copies of the March 8, 2013 version of Form I-9 (including instructions) are available for download on the USCIS Web site at www.uscis.gov.

Print copies of the March 8, 2013 version of Form I-9 for your agency’s use and destroy all blank copies of previous versions of Form I-9 in your possession. Check the USCIS Web site regularly for the latest official information and guidance.

__________________________________________

* N.B. The March 8, 2013 revised Form I-9 notes that it expires on March 31, 2016. Presumably a replacement form will be promulgated by the Department of Homeland Security prior to that date.

** Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

Rubscha (Commissioner of Labor), 2013 NY Slip Op 02609, Appellate Division, Third Department

Robert F. Rubscha’s employer had instituted a voluntary reduction in force program in an effort to avoid eventual layoffs. Although Rubscha, who had been employed for 29 years, had no information that his job would be eliminated, he nevertheless accepted the severance package offered by his employer out of concern that he or his coworkers would be laid off.

When Rubscha filed for unemployment insurance benefits the Unemployment Insurance Appeal Board ruled that Rubscha was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

The Appellate Division sustained the Board’s determination, explaining that leaving a job in order to take advantage of a severance or early retirement package when continuing work is available does not constitute good cause for leaving one's employment.

In addition, the court noted that substantial evidence supported the Board's finding that Rubscha received retirement incentives identical to those that he would have been provided had he been laid off and that, as a result, he lacked "a compelling financial incentive to leave his job."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02609.htm

In which nations are the readers of NYPPL located?

In which nations are the readers of NYPPL located?

Following up on the report that Washington University School of Law is now offering an online Legal English Class for Foreign Lawyers, in response to a number of inquires from readers as to the number of individuals outside the United States that access NYPPL, "Google Statistics" reports that in the last thirty [30] days, in addition to its 14,666 readers in the United States, this LawBlog had readers in the following nations:

France	2,778
Germany	392
Russia	348
United Kingdom	289
Ukraine	220
China	124
Poland	90
Israel	86
Turkey	72

Terminated employee’s reliance on the Doctrine of Legislative Equivalency in challenging her dismissal held misplaced

Terminated employee’s reliance on the Doctrine of Legislative Equivalency in challenging her dismissal held misplaced

The Doctrine of Legislative Equivalency sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act.

Among the arguments advanced by the Petitioner in this Article 78 proceeding challenging her termination was that her dismissal violated the Doctrine of Legislative Equivalency.

The Appellate Division, however, rejected Petitioner’s contention that the agency's determination violated the Doctrine of Legislative Equivalency, “without merit,” as the position from which she had been removed had not been abolished, implying that she had not been "laid off" withing the meaning of Civil Service Law §§80 or 80-a.* 

Turning to another element in this case, according to the Appellate Division’s ruling, Petitioner was terminated from her position without first being accorded any "quasi-judicial evidentiary hearing."**  Accordingly, said the court, its review was subject to the standard set out in §7803(3) of the Civil Practice law and Rules:

[1] Was the determination was made in violation of lawful procedure;

[2] Was the determination affected by an error of law;

[3] Was the determination arbitrary and capricious; or

[4] Was the determination an abuse of discretion.

Citing Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, the Appellate Division said that pursuant to this standard courts will "examine whether the action taken by the agency has a rational basis" and will overturn that action only "where it is taken without sound basis in reason' or regard to the facts." Further, explained the court, "courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise," citing Peckham v Calogero, 12 NY3d at 431.

The Appellate Division ruled that Petitioner failed to meet her burden of demonstrating that the determination made by the County of Nassau Department of Assessment terminating her employment lacked a rational basis or was arbitrary and capricious.

As to Petitioner’s contention that the agency's determination violated the Doctrine of Legislative Equivalency, the court rejected this argument as “without merit,” as the position from which she had been removed had not been abolished.

* The Attorney General has concluded that there must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 or 80-a (1976 Opinions of the Attorney General 7).

** Presumably Petitioner was not entitled to a pre-termination disciplinary hearing otherwise available pursuant to the Civil Service Law, a collective bargaining agreement or so other statutory procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02580.htm

A court may hold a law enforcement official to a higher standard in evaluating the penalty imposed if he or she is found guilty of misconduct after an administrative disciplinary action

A court may hold a law enforcement official to a higher standard in evaluating the penalty  imposed if he or she is found guilty of misconduct after an administrative disciplinary action  

A correction officer [Petitioner] employed by the Ulster County Sheriff’s Department and who was also a member of the Sheriff's Emergency Response Team, was served with disciplinary charges Civil Service Law §75 that alleged that his treatment of an inmate resulted in an injury to that individual. 

The Hearing Officer sustained two of the three charges* against Petitioner and recommended a penalty of a three-week suspension without pay. The Sheriff adopted the finding of the Hearing Officer that Petitioner was guilty of the two charges but rejected the Hearing Officer’s recommendation as to the penalty to be imposed. Instead of a suspension without pay, the Sheriff determined that that termination was the appropriate penalty.

Petitioner initiated a CPLR Article 78 proceeding challenging the Sheriff's determination but Supreme Court dismissed his petition. The Appellate Division affirmed Supreme Court’s ruling.

The Appellate Division said that Petitioner's sole challenge on appeal is to the penalty imposed by the Sheriff. However, explained the court, its review is "limited to whether the penalty is so disproportionate [to the offense] as to be shocking to one's sense of fairness."

Noting that

[1] “[a]s a law enforcement official, Petitioner's conduct may be held to a higher standard when we evaluate the appropriate penalty to be imposed;.”

[2] that Petitioner “was found to have caused an injury to a defenseless, handcuffed inmate over whose custody petitioner was in charge;” and

[3] the Sheriff explained in that his decision to terminate Petitioner's employment was based, in large measure, upon the fact that, “as a correction officer, Petitioner was required to handle the most difficult and sometimes dangerous individuals” and that "[d]isrespect and brutality of prisoners cannot and will not be tolerated."

the Appellate Division concluded that “[e]ven if there is mitigating evidence that could support a different result — such as Petitioner's otherwise unblemished record of service during his 10 years as a correction officer — we may not substitute our judgment for that of the Sheriff.”

As to penalty imposed, termination, the court said that considering Petitioner's position as a correction officer and a Sheriff's Emergency Response Team member and the serious nature of Petitioner's misconduct — an assault of a handcuffed inmate who petitioner was supervising at the time — as well as petitioner's failure to take responsibility for his actions, “the decision to terminate his employment does not shock our sense of fairness,” citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

* The third disciplinary charge alleged misconduct based the correction officer’s arrest and being charged with assault in the third degree as a result of this incident. As the correction officer was acquitted of the criminal charge, the Hearing Officer did not sustain that disciplinary charge.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02447.htm

Court rules that the disciplinary penalty imposed by the arbitrator after finding the employee guilty “well-tailored to the misconduct” charged

Court rules that the disciplinary penalty imposed by the arbitrator after finding the employee guilty “well-tailored to the misconduct” charged

Disciplinary charges were filed against a teacher including an allegation that the teacher had made a remark comparing the elementary school where she worked "to the shootings and killings of individuals in the Iraq war."

The arbitrator found a teacher guilty of the disciplinary charges filed against her and imposed a fine of $8,000 and directing that the teacher receive up to 48 hours of pedagogical training.

The teacher appealed but Supreme Court confirmed the arbitration award and dismissed the proceeding, which decision was unanimously affirmed by the Appellate Division.

The Appellate Division explained while making the remark, the teacher stood up and feigned pulling the trigger of a gun, which was worrisome to her colleagues.

As to the teacher’s claim that the arbitrator had gone beyond that which he was authorized to hear, the Appellate Division ruled that the There exists no basis to disturb the credibility determinations of the arbitrator arbitrator's reference to teacher's miming of shooting a gun flowed naturally from the credited witnesses' testimony, and did not go beyond what the arbitrator was authorized to hear.

Finding that the charges preferred against teacher specifically notified her of the misconduct that she was accused of and were sufficiently specific to permit petitioner to prepare her defense, the court sustained the arbitrator’s decision and the penalty he imposed, ruling that it did not shock the court’s sense of fairness and in fact was well-tailored to the misconduct of which teacher was found guilty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02509.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

Issued during the week ending April 20, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Stops $21.2 Million in Dubious Tax Refunds

The State Comptroller’s office has halted $21.2 million in questionable personal income tax refunds after finding 6,353 improper filings among those filed so far this year, State Comptroller Thomas P. DiNapoli announced Tuesday. DiNapoli’s office audited and approved 3.9 million refund requests totaling $3.3 billion in 2013. Another 271,000 refund requests totaling $303 million are expected to be paid in the coming days.

DiNapoli Joins with 500,000 Americans to Urge SEC to Require Disclosure of Corporate Political Spending

The Corporate Reform Coalition calls on newly confirmed SEC Chair Mary Jo White to act now to require disclosure of corporate political spending. A record–breaking 500,000 investors and members of the public have submitted comments supporting the rule, demonstrating the importance of this issue. Chair White should seize this pivotal opportunity to safeguard shareholders by providing them with information necessary for their investing decisions.

DiNapoli Concerned With Rockland County Budget

Rockland County’s 2013 budget contains unreasonable revenue and spending projections that could increase the county’s deficit, warned State Comptroller Thomas P. DiNapoli in a budget review issued Friday.

DiNapoli: Local Governments Submit Property Tax Cap Reports

State Comptroller Thomas P. DiNapoli announced that 2,416 counties, cities, towns, school districts and fire districts have filed their 2013 property tax cap report. More than 18 percent of these entities indicated they plan to override the tax cap in 2013.

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 April 19, 2013 [Click on text highlighted in bold to access the full report] 

Office of Alcoholism and Substance Abuse Services, Contract with Daytop Village, Inc (Follow-Up) (2011-F-18)
The Office of Alcoholism and Substance Abuse Services (OASAS) oversees programs for preventing and treating alcohol and substance abuse. Many of these programs are provided by not-for-profit organizations. One such contract is with Daytop Village Inc. under which OASAS paid Daytop about $97 million through the end of 2009. In an initial report, auditors found that Daytop did not fulfill its fiscal responsibilities under the contract and as a result, OASAS paid Daytop $11.5 million more than it was entitled to. In a follow-up report, auditors found OASAS has made progress correcting the problems.

Office of Alcoholism and Substance Abuse Services, Chemical Dependency Program Payments to Selected Contractors in New York City (Follow-Up) (2011-F-17)
In an initial report, auditors examined $8.4 million in payments made to the two contractors and found that neither contractor could provide documentation showing that the expenses reimbursed by these payments related to authorized contract activities. Auditors recommended OASAS recover the $8.4 million. In a follow-up report, auditors determined OASAS has made progress in addressing the matters.

New York State Health Insurance Program, United HealthCare: Compensation and Benefit Costs for the Empire Plan for the Period January 1, 2008 through December 31, 2010 (2011-S-50)
The New York State Health Insurance Program provides health insurance coverage to more than 1.2 million active and retired state employees, participating local government employees and school district employees and their dependents. NYSHIP includes several health plan options, of which the Empire Plan is the largest. The Department of Civil Service contracts with United HealthCare (United) to process and pay medical and surgical claims for services provided to Empire Plan members. The state’s contract with United requires all administrative costs charged to the state to be related to United’s administration of the Empire Plan’s medical/surgical program. In addition, a state contractor must maintain complete and accurate records to support its claims for six years. United did not always maintain certain source and summary data to support the charges for time worked by claims and call center staff assigned to the Empire Plan. United also did not have a uniform method to track and account for the time worked by claims center staff.

Department of Health, Medicaid Payments for Excessive Dental Services (Follow-Up) (2012-F-30)
An initial audit report examined Medicaid payments for routine dental services provided during the period September 1, 2004 through August 31, 2009. The audit identified $40 million of excessive dental services that exceeded certain frequency limits. Auditors also determined that if DOH adjusted its Medicaid fees for these services to the averages of other comparable states, it could have saved more than $60 million during the audit period. In a follow-up report, auditors found DOH officials have made progress in addressing several of the issues previously identified. In particular, changes to payment schedules for routine dental services saved Medicaid more than $11 million. However, additional actions still need to be taken.

Department of Motor Vehicles, Motor Vehicle Financial Security and Safety Responsibility Acts Statement of Assessable Expenses for the Three Fiscal Years Ended March 31, 2011 (2012-S-25)
New York State’s Vehicle and Traffic Law stipulates that the DMV commissioner and the Office of the State Comptroller shall ascertain the total amount of expenses the Department of Motor Vehicles incurs in its administration of the Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act. Auditors found the statements for those acts reflect the expenditures of the two acts for the three fiscal years ended March 31, 2011, in accordance with cash basis accounting.

Also: Statewide Travel Audits of the following entities were issued

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:

New York State Department of Financial Services, Selected Employee Travel Expenses (2012-S-77)
Auditors found ten of the highest-cost travelers  worked at the New York State Department of Financial Services and had travel costs totaling $1,248,144. Auditors also examined other travel totaling $627,902. Auditors were only able to audit two of the three years of travel expenditures totaling $1,876,046 because the DFS was not required to and did not maintain records prior to April 2009. The travel expenses for the 27 employees selected for audit were documented and adhered to state travel rules and regulations. Most of the employees were either insurance or bank examiners; while the rest were executive managers and administrative staff. The majority of travel expenses for the 27 department employees included lodging, airfare, train fare, fuel charges and meal reimbursements.

Division of Military and Naval Affairs, Selected Employee Travel Expenses (2012-S-130)
Auditors identified two travel cards used by staff at the Division of Military and Naval Affairs as high risk due to substantial charges for car rentals. The total costs associated with these travel cards was $118,843. Auditors found that the travel expenses for the two travel cards selected for audit were documented and adhered to state travel rules and regulations.

State University of New York, University at Buffalo - Selected Employee Travel Expenses (2012-S-135)
Twelve of the state’s highest cost travelers worked at the University at Buffalo (University) and had travel costs totaling $3,593,928. We also audited one employee with an outlier in fuel expenses that totaled $45,882. In total, auditors examined $3,639,810 of the University’s travel payments. They found the travel expenses for the 13 university employees selected for audit were documented and adhered to state travel rules and regulations. The 13 employees are athletic coaches or administrative staff whose travel consisted primarily of team travel to athletic events.

Neither a judicial or quasi-judicial administrative proceeding may be conducted on a Saturday where such day is kept as a holy day by any party to the case or on a Sunday

Neither a judicial or quasi-judicial administrative proceeding may be conducted on a Saturday  where such day is kept as a holy day by any party to the case or on a Sunday

May judicial or quasi-judicial proceeding be conducted on a Sunday?

This was one of the issues raised by the petitioner in her CPLR Article 78 petition seeking to vacate the appointing authority’s disciplinary determination that resulted in her being dismissed from her position. The petitioner contended that she was impermissibly discharged from her position because one of the dates on which her disciplinary hearing was conducted was a Sunday, citing Judiciary Law §5.

Judiciary Law §5, in pertinent part, provides that: “A court shall not be opened, or transact any business on Sunday, nor shall a court transact any business on a Saturday in any case where such day is kept as a holy day by any party to the case, except to receive a verdict or discharge a jury and for the receipt by the criminal court of the city of New York or a court of special sessions of a plea of guilty and the pronouncement of sentence thereon in any case in which such court has jurisdiction.”

In rebuttal, the appointing authority argued that out of “a multiple day hearing, only one of the days was a Sunday, and therefore the proceedings cannot be held invalid.”

Supreme Court Justice Catherine M. Bartlett disagreed with the argument advanced by the appointing authority, annulling the appointing authority’s' decision and remanding the matter for “a new hearing and determination de novo in compliance with New York law Judiciary Law §5.

The court, citing Jones v E. Meadow Fire Dist., 21 AD2d 129, explained at common law no judicial act could be done on Sunday; and, in the absence of a permissive statute, a judge had no authority to hold court or to conduct a trial on Sunday.  Judiciary Law §5, said the court, was enacted as a substitute for the common-law rule. The Jones court held that “quasi-judicial proceedings such as disciplinary proceedings before a review board fall under Judiciary Law §5's auspices.”*

On a related point, Justice Bartlett also noted that the mandates of Judiciary Law §5 may not be waived by a party as §5 expresses the public policy of the State.

* In Matter of Brody [Owen], 259 App.Div. 720, the Appellate Division held that an arbitration hearing and award were both “illegal and void,” because both occurred on a Sunday and “An arbitration is a judicial proceeding and arbitrators perform a judicial function.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23122.htm