Authority to designate a hearing officer to conduct a Civil Service Law §75 disciplinary hearing

Authority to designate a hearing officer to conduct a Civil Service Law §75 disciplinary hearing 

34 AD3d 814

An individual [Employee] was served with disciplinary charges pursuant to §75 of the Civil Service Law. He was dismissed from his employment after being found guilty of charges of misconduct and insubordination.

Employee sued, contending that the designation of the §75 hearing officer was not made by an officer or body having the power to remove him from his position as required by Civil Service Law §75(2). Consequently, he contended, the report of the hearing officer was a nullity and the determination based upon it was arbitrary. The Appellate Division agreed. It granted Employee's petition and annulled his dismissal.

The court pointed out that in the absence of a specific designation of the body or individual vested with the power to remove an individual from his or her position," the power to remove is a function of the power to appoint."

Employee argued that here the body with the power to remove him, i.e., the appointing authority, was the Board of Education and not the school superintendent. In this instance the hearing officer had been designated by the superintendent rather than the board as mandated by §75(2).

The Appellate Division concluded that on the basis of the record before it, “the designation of the hearing officer was not by an officer or body having the power to remove [Employee] as required by Civil Service Law §75(2).” Accordingly, the report of the hearing officer was a nullity and the determination based upon it arbitrary.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08989.htm
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Probationer has the burden of proving his or her termination resulted from his or her engaging in a protected union activity

Probationer has the burden of proving his or her termination resulted from his or her engaging in a protected union activity

34 AD3d 484

It is well settled that as a probationary employee, an individual could be terminated for any reason, as long as the termination was not made in bad faith, was not for a constitutionally impermissible reason, or was not in violation of statutory or decisional law.

The petitioner in this appeal was dismissed from his position with a New York City department before completing his probationary period. He challenged his termination, contending he was dismissed “in retaliation for his filing of a union grievance.” If true, this would constitute an impermissible reason for terminating an individual during his or her probationary period.

However, the individual has the burden of proving (a) that he or she was engaged in protected union activity, (b) that the appointing authority had knowledge of the activity, and (c) that he or she would not have been discharged from employment but for the activity.

The Supreme Court determined that the petitioner in this action established a prima facie case of improper motivation, thereby shifting “the burden of persuasion” to the appointing authority to establish that its actions were motivated by a legitimate business reason. Supreme Court ultimately found that the appointing authority failed to meet this burden.

The Appellate Division agreed with the tests applied by the Supreme Court in making its ruling. It affirmed the Supreme Court’s finding that the appointing authority had failed to meet its “burden of persuasion” and ruled that Supreme Court properly annulled the appointing authority's decision to terminate the petitioner.

In addition, the Appellate Division affirmed Supreme Court’s order directing the reinstatement of the petitioner to his former  position with the agency, with full back pay and benefits.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2006/2006_08135.htm

Appointing authority's reliance on the findings of the disciplinary hearing officer

Appointing authority's reliance on the findings of the disciplinary hearing officer

34 AD3d 1219

The petitioner challenged the decision of the School Board to terminate his employment with the school district, contending that the Board’s action was arbitrary and capricious because it did not set out the factual reasons for its action.

The President of the Board, however, had submitted an affidavit to the court indicating that the Board, after reviewing the findings and recommendations of the hearing officer, had adopted both the hearing officers's findings as to guilty and the penalty recommended by the hearing officer.

The Appellate Division said that since the petitioner failed to produce any evidence that the Board (1) failed to make an independent appraisal of the evidence and (2) failed to reach independent conclusion, it “declined to disturb the Board's determination, ” under the circumstances, the Board was entitled to rely on and adopt the findings of fact and the recommendation of the Hearing Officer who conducted petitioner’s hearing pursuant to §75 of the Civil Service Law.

The court then dismissed the petitioner’s appeal, rejecting his claim that that [1] the Hearing Officer's findings of fact and recommendations were not based on substantial evidence and [2] imposing the penalty of termination was shocking to one's sense of fairness.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08383.htm

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Termination of a police officer while on leave pursuant to General Municipal Law §207-c

Termination of a police officer while on leave pursuant to General Municipal Law §207-c

Olsen v Dormer, 13 Misc 3d 1236(A)

Steven B. Olsen was terminated from his employment as a Suffolk County Police Lieutenant pursuant to §71 of the Civil Service Law [Workers’ Compensation Leave] while receiving the full amount of his salary pursuant to General Municipal Law §207-c after suffering a "line of duty" injury..

General Municipal Law §207-c provides that a police officer who suffers a line of duty injury that precludes him from performing his duties as a police officer shall receive his full salary and medical care “until such time as the disability arising therefrom ceases.”

Olsen argued that he could not be terminated from his position with the police department in view of his §207-c status and that he has an indefinite right to return to work either on a full-duty or limited duty status when able to do so.

Supreme Court disagreed, holding that “Neither this record, GML §207-c , the [relevant Taylor Law] contract, or case law persuade the Court that [Olsen] maintained an indefinite right to return to work in limited duty capacity.” Further, said the court, the provisions in the collective bargaining agreement that allowed Olsen to elect a due process hearing or a medical evaluation after a §207-c dispute had arisen, comports with procedural due process as GML §207-c benefits “are a property [interest] that may not be terminated without procedural due process”

As to Olsen’s termination pursuant to Civil Service Law §71, the Supreme Court noted that Olsen was absent from work for a period of one year, five months and fourteen days because of the disability he incurred while performing his police duties.

Supreme Court cited the ruling in Stewart v County of Albany, 300 AD2d 984, Motion to appeal denied, 100 N.Y.2d 505, in support of its decision. 

Stewart, a correction officer serving with the Albany County Sheriff's Department, was terminated pursuant §71 of the Civil Service Law after being absent from work for more than one year. He was receiving his salary and medical benefits pursuant to GML §207-c benefits as the result of a work related injury at the time of his termination. After reviewing the legislative history of §71, the Stewart court found that it was "clearly within the Sheriff's authority to avail himself of the §71 termination procedures to remove a disabled correction officer, even one receiving GML §207-c benefits via the County payroll, in order to appoint a replacement".*

In a footnote in the decision, Footnote 2, the Appellate Division observed that “It is well settled that a civil service employee is not deprived of due process if the employee is terminated without a pre-termination hearing pursuant to §71 of the Civil Service Law (Allen v Howe, 84 NY2d 665, 621 NYS2d 287 [1994])." The statute gives the employee post termination due process. This includes the right to demand to return to work, and to contest any determination that he or she is not fit to return to work.

Dismissing Olsen’s petition, Supreme Court ruled that the Suffolk County Police Department and Commissioner Richard Dormer acted within their discretion in terminating Olsen pursuant to §71 of the Civil Service Law. Further said the court, Olsen has post termination rights available to him under §71,"the most important of which is the right to reinstatement provided application for such reinstatement is made within one year of the cessation of the disability"

Civil Service Law §71, which is "leave without pay," provides, in pertinent part, "Reinstatement after separation for disability,” provides in pertinent part as follows: Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law, he or she shall be entitled to a leave of absence for at least one year.... Such employee may, within one year after termination of such disability, make application to the Civil Service Department or Municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission. If, upon such examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position."**

The relevant language of GML §207-c, which provides for the continuation of compensation while a law enforcement employee is incapacitated as the result of a work connected injury, appears to provide a statutory imperative that the individual return to active duty full-time or in “light duty status” once he or she is found medically qualified to do so. Indeed, once his or her disability abates sufficiently to permit this or, in the alternative, he or she is directed to return to perform a "light duty" assignment if found medically qualified to do so, the individual risks having his or her §207-c benefits discontinued by the appointing authority should he or she fail to do so.

§71, in contrast, provides that should the employee be terminated pursuant to this provision of the Civil Service Law and thereafter determined to be qualified to resume the duties of his or her former position and in the event there is no suitable vacancy then available to which the individual could be reinstated, the individual's name is to be placed on a preferred list and his or her name is to be continued on such list for four years unless earlier appointed to a suitable vacancy.

It would appear that the only means available to the appointing authority to lawfully "terminate" an individual's §207-c benefits in the event he or she is found not medically qualified for reinstatement to full or light duty, is, should the employee declines to do so, to [1] file an employer application on behalf of the employee for accidental disability retirement pursuant to GML §207-c.2, which decision by the Employees' Retirement System would control as otherwise provided by law or [2] to determine that the police officer is otherwise disqualified from receiving GML §207-c benefits.*** 

* In its Stewart decision, the Appellate Division states "Consistent with its statutory purpose, the Sheriff's resort to Civil Service Law §71 was presumably “to secure a steady, reliable, and adequate work force,” (Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128, 135; see Matter of Allen v Howe, 84 NY2d 665, 672), i.e., he wanted to hire another correction officer to replace petitioner.” However neither Duncan nor the two individuals in Allen [Cathy Allen and Diane Spiegel] were employees eligible for GML §207-c benefits.

** Significantly, in Stewart, supra, the Appellate Division held that “Termination of employment under Civil Service Law §71 does not necessarily involve a termination of benefits being received pursuant to GML §207-c as such benefits ‘are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment.’" 

*** For example, the police officer is ineligible for GML §207-c benefits if he or she "ceased to be an inhabitant within the geographical restrictions" set by law as the court explained in O'Connor v Town of Clarkstown, 221 AD2d 444.

The Olsen decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_52143.htm

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General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending August 10, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Releases Report on NY Power Authority

New York State Comptroller Thomas P. DiNapoli Thursday issued a report on the New York State Power Authority (NYPA). The report examines NYPA’s finances, money transferred to support the state budget and expenses related to employee benefits and travel, including a private plane.

DiNapoli Finds Lax Oversight of Private Career Schools

Private career schools in New York are operating without licenses and more than half are ignoring reporting requirements on job placement and graduation rates, according to an audit released Thursday by New York State Comptroller Thomas P. DiNapoli. Auditors also found hundreds of public complaints that have been unresolved, some for more than a decade, with little or no action. The findings of the audit have been referred to Attorney General Eric Schneiderman’s office for further review.

DiNapoli: Poor Budget Practices Found in Halfmoon

The Town of Halfmoon is facing a deficit in its rainy day fund due to budgeting errors and the absence of a long–range financial plan, according to an audit released Tuesday by State Comptroller Thomas P. DiNapoli.

DiNapoli Audit Questions Special Education Contractor Charges

The John A. Coleman School, a special education provider based in Westchester County, submitted almost $640,000 in unwarranted charges to area school districts and New York City, including more than $500,000 for employee bonuses, according to an audit released Wednesday by New York State Comptroller Thomas P. DiNapoli.
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From the BLOGS:

From the BLOGS:

NYMUNIBLOG has posted a new item, '"Reality Check' on the Meaning behind the Drop in State Test Scores'" authored by Howard J. Goldsmith.

Mr. Goldsmith states:

“There is a lot of recent press coverage on the meaning, significance, and/or the lack of significance on the recently released results from the 2013 administration of the grades 3 to 8 mathematics and English Language Arts tests.

”While many students may feel poorly, teachers may feel defeated, districts may be blamed, parents may be confused, and politicians may be pointing fingers, the low scores were to be expected. In addition, and the most unfortunate part about all the attention and misplaced focus and priority being placed upon the results released by the State Education Department, these scores are not useful to educators for teaching and learning.”

The full text of Mr. Goldsmith’s post is on the Internet at:
http://nymuniblog.com/?p=3423

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Substantial evidence required to support a finding of guilt in a disciplinary proceeding

Substantial evidence required to support a finding of guilt in a disciplinary proceeding

34 AD3d 580; 34 AD3d 672

The Town of Islip filed disciplinary charges against an employee pursuant to Section 75 of the Civil Service Law. The charges alleged that the employee had "engaged in misconduct by accepting salary payments from the Town [of Islip] to which he was not entitled." A hearing officer conducted a disciplinary hearing and found the employee guilty of misconduct and recommended that the Town terminate his employment.

The Town adopted the hearing officer’s findings and recommendation and dismissed the employee from his position. the employee sued, contending that the record lacked substantial evidence to support this determination.

The Appellate Division, Second Department, agreed. It ruled that “Under the facts of this case, the determination that [the employee] engaged in misconduct was not supported by substantial evidence.” It annulled the Town’s determination and directed that it reinstate the employee

What constitutes “substantial evidence” for the purposed of a Section 75 disciplinary determination?

This question was considered in the decision in 34 AD3d 580. Here the Appellate Division, Second Department, commented that "Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

Further, said the court, “it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject," citing Sahni v New York City Bd. of Educ., 240 AD2d 751.

Concluding that the disciplinary determination finding the accused employee guilty of disciplinary charges was supported by substantial evidence and, additionally, the imposed penalty of dismissal was not so disproportionate to the offense as to be shocking to one's sense of fairness, citing the Pell Doctrine (Matter of Pell v Board of Educ., 34 NY2d 222), the Appellate Division dismissed the plaintiff's petition.

The decision in 34 AD3d 580 is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08243.htm

The decision in 34 AD3d 672 is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08766.htm

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Court of Claims judge held the court did not have jurisdiction to hear claims that Civil Service Law §75-b [the Whistleblower statute] has been violated

Court of Claims judge held the court did not have jurisdiction to hear claims that Civil Service Law §75-b [the Whistleblower statute] has been violated

Keskin v State of New York, NYS Court of Claims, 14 Misc3d 537

New York State’s "whistleblower" statutes” (Civil Service Law §75-b;* Labor Law §740) provide certain protections to an employee who discloses to a governmental body (Civil Service Law §75-b) or discloses or threatens to disclose to an employer or public body (Labor Law §740), information concerning a violation of a law, rule or regulation.

Kimberly Ann Keskin brought an action in the State’s Court of Claims seeking damages available to whistleblowers pursuant to Civil Service Law §75-b and Labor Law §740. As turned out, she sued in the wrong court.

Justice Philip J. Patti agreed with the State defendants that the Court of Claims "has no subject matter jurisdiction over a claim asserted under Civil Service Law §75-b," relying upon a decision by Judge John L. Bell in Taylor v State of New York (160 Misc 2d 120).

In Taylor, Justice Bell ruled that the State Legislature had not given the Court of Claims jurisdiction to adjudicate claims brought under Section 75-b. Accordingly, he concluded that “a claimant who contemplates an action under the statute would be well advised to institute an action in the Supreme Court rather than the Court of Claims.”

* §75-b 2.(a) of the Civil Service Law provides, in pertinent part, “A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_26480.htm

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Sending notices of disciplinary charges to an accused employee

Sending notices of disciplinary charges to an accused employee

13 Misc 3d 1226(A)*

An employee was dismissed from his position with Westchester County after being found guilty of the charges filed against him by the hearing officer. The disciplinary hearing, however, was conducted in absentia.

Claiming that he had not received any written notice of the charges preferred against him as required by Civil Service Law §75, the employee sued seeking to have the disciplinary determination vacated and reinstatement to his position with salary and benefits retroactive to the date of his termination.

It appears that the Department sent the notice of disciplinary action by Certified Mail but that the envelope was returned as "unclaimed" by the United States Postal Service. The envelope also indicated that the letter was mailed to a Briarcliff Manor, NY 10501 address with no building number.

The court found that under the circumstances the employee had not been served with the written notice of disciplinary charges mandated by Section 75 of the Civil Service Law and granted the employee’s petition.

Justice Bellatoni cited DelBello v. New York City Transit Authority, 151 AD2d 479, 542 NYS2d 270 (2nd Dep't 1989) in support of his ruling. In DelBello the Appellate Division affirmed a Supreme Court decision annulling and vacating a determination terminating DelBello’s employment. In that case, hearing notices were sent to an address from which DelBello had moved and all notices were returned to the Authority unopened and marked "moved-left no address".

The Appellate Division found that because the Authority undertook no other steps to notify the DelBello of the pending charges. “Clearly mailing the notice to the petitioner's last known address was not notice reasonably calculated, under all the circumstances, to apprise DelBello’s of the pendency of the [disciplinary proceedings] and afford [him] an opportunity to represent [his] objections” said the court. In contrast, noted the Appellate Division, the Authority regarded the failure of [DelBello] to receive notice of the hearing and charges as [DelBello’s] problem”.

Justice Bellatoni rejected the Department’s argument that that even though the mailing was returned as unclaimed, it constituted reasonable notice of the charges against the employee and of the scheduled disciplinary hearing that was held in his absence.

Finding that the Department and the Hearing Officer acted in an arbitrary and capricious manner by proceeding with the disciplinary hearing in absentia, the court ruled that terminating the employee’s employment violated the requirements of Civil Service Law § 75.

Further, the court said “What is even more troubling is that [the employee] could have been served personally at his place of employment after the notice came back unclaimed.” At the very least, said the court, the Department could have inquired as to the employee’s address to ensure that the notice was properly sent.” Justice Bellatoni directed that that the matter be heard before a different Hearing Officer.

In contrast, an employee’s claim that she did not receive notice of disciplinary charges mailed to her was rebutted by employer’s evidence of proper mailings.

In a case involving the Board of Educ. of City School Dist. of City of N.Y.,** the court noted that the New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher by certified mail, return receipt requested and by regular mail.

Although the certified mail copy of the Charges was returned to BOE as “unclaimed,” the regular mail copy of the Charges was never returned. BOE subsequently again sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail.  Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned.

A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentia and the teacher was found guilty of the charges and terminated. A letter advising the teacher of her dismissal was mailed to the same address used to send all of the previous letters to the teacher who subsequently acknowledges receiving it and filed a claim with BOE seeking reinstatement retroactive to the date of her termination, along with restoration of benefits.

When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.” Additionally, said the court, the teacher “denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up [and] if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.”

Judge Kornreich said that “The standard in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.”

The court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent. Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges.

In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Judge Kornreich decided that it was not arbitrary or capricious for BOE to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation and dismissed her petition.

* The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_52004.htm

** 2008 NY Slip Op 31935(U), Supreme Court, New York County, Judge Shirley Werner Kornreich [Not selected for publication in the Official Reports]. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2008/2008_31935.pdf

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The Commissioner of Education will not assume jurisdiction of appeals filed by employees in the classified service concerning personnel matters

The Commissioner of Education will not assume jurisdiction of appeals filed by employees in the classified service concerning personnel matters

Decisions of the Commissioner of Education; Decision No. 15,473

An individual employed as an “Aide to Students with Disabilities” by the School District was terminated from his position while still serving as a probationary employee.

Contending that he was dismissed from his employment without receiving training or an evaluation, he filed an appeal with the Commissioner of Education challenging the School District’s action .

The Commissioner dismissed the individual’s appeal for lack of subject matter jurisdiction. He noted that the individual did not claim that his former position was among those certified by the Commissioner of Education as being in the unclassified service. Neither, said the Commissioner did the individual dispute the School District’s assertion that he was an employee in the classified service within the meaning of the Civil Service Law.

The Commissioner said that “It is well settled that the termination of a classified employee is not the proper subject of an Education Law §310 appeal.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume46/d15473.htm
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