Accused employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment

Employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment

2013 NY Slip Op 05765, Appellate Division, First Department

In the course of a disciplinary hearing, the accused employee [Petitioner] had made death threats against the arbitrator during a telephone conversation with the attorney who was then representing him in the proceeding.

When the arbitrator learned of the death threats, he recused himself and was replaced by a second arbitrator, who found Petitioner guilty of failing to properly supervise students and excessive absences. As a result, Petitioner was suspended without pay for one year.

After investigating the alleged death threats made against the first arbitrator, the appointing authority filed disciplinary charges based on that event. In the second disciplinary action the arbitrator found that the evidence supported the alleged death threats and recommended that Petitioner be terminated from his position.

The Appellate Division sustained the arbitration award, finding that it was made in accord with due process, was supported by adequate creditable evidence, was rational and was not arbitrary and capricious. Further, said the court, “hearsay evidence can be the basis of an administrative determination … and each of the specifications upheld by the arbitrator was supported by testimony of witnesses having personal knowledge of the material facts or hearsay evidence that substantiated the basis for the charges.”

As to Petitioner’s claim that the second disciplinary proceeding and the ultimate disciplinary penalty imposed against him – termination -- violated his right to free speech under the First Amendment to the United States Constitution, the Appellate Division said that “Supreme Court properly deferred to the arbitrator's finding that [Petitioner’s statements are exempt from First Amendment protection because they constitute ‘true threats.’"

The Appellate Division said that Petitioner’s former attorney “only disclosed the [death] threats because he believed that Petitioner's increasingly erratic behavior rendered him genuinely dangerous.” Under the circumstances, said the court, "it cannot be argued that Petitioner’s speech implicates matters of public concern … [n]or can it be disputed that Petitioner’s death threats disrupted the initial arbitration proceeding."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05765.htm

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Provisional appointment to a vacancy

Provisional appointment to a vacancy

CSEA v Bobenhausen, 69 AD2d 983

An individual not eligible for the promotion examination or open-competitive examination for a vacant position is selected to be provisionally appointed to the vacancy. Is such an appointment lawful?

In Turel v Delancy, 287 NY 15. the Court of Appeals said that the appointing authority is not required to select a person who is, or had previously been, on an eligible list for promotion to the position.

The Appellate Division in CSEA v Bobenhause, 69 AD2d 983, extended that option to include selecting someone for appointment to the vacancy “who is not qualified to take the promotion examination or open competitive examination for the position.”

Citing Koso v Greene, 260 N.Y. 491 and other decisions, the court explained that “nothing in subdivision 1 of §65 of the Civil Service Law that requires that a provisional appointee be fully qualified for permanent appointment or that he [or she] must be eligible to take the civil service test for the position before being provisionally appointed to it."

The court noted that the respondent, Frederick A Bobenhausen, had been  approved for the appointment by the State Department of Civil Service after a noncompetitive examination, i.e., after a review of his qualifications, and its determination that he was qualified to serve provisionally complied with the statute, his failure to meet existing eligibility requirements for permanent appointment notwithstanding. A provisional appointment, said the Appellate Division, is a stopgap occasioned by necessity "and the appointee is exempt from civil service requirements and protection.”

Civil Service Law §65, Provisional Appointments, provides: “1. Provisional appointments authorized. Whenever there is no appropriate eligible list available for filling a vacancy in the competitive class, the appointing officer may nominate a person to the state civil service department or municipal commission for non-competitive examination, and if such nominee shall be certified by such department or municipal commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination. Such non-competitive examination may consist of a review and evaluation of the training, experience and other qualifications of the nominee, without written, oral or other performance tests.

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Same-sex couples covered by FMLA

Same-sex couples covered by FMLA

Source: NYMUNIBLOG

The NYMUNIBLOG Editorial Team reports that the U.S. Department of Labor has expanded FMLA leave to cover same-sex couples.

The team reports that “When the United States v. Windsor decision—finding a key provision of the Defense of Marriage Act (DOMA) unconstitutional—was handed down by the Supreme Court of the United States earlier this summer, a Harris Beach Legal Alert noted that the ruling would extend various federal benefits to same-sex married couples in states that allow gay marriage. Specifically with regard to the Family and Medical Leave Act (FMLA), we surmised that a person with a same-sex spouse will be entitled to FMLA leave if all other conditions are met.” 

The full text of the posting is at http://www.harrisbeach.com/media-news/9742

The Supreme Court decision in United States v Windsor is posted on the Internet at:

http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

As NYPPL noted on August 29, 2013, the Washington Post reported that the Internal Revenue Service announced that it will treat same-sex marriages the same as it does heterosexual ones. The text of the Post's report is on the Internet at:
http://www.washingtonpost.com/blogs/federal-eye/wp/2013/08/29/irs-to-treat-same-sex-marriages-equally-for-tax-purposes/

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

Issued during the week ending August 31, 2013

The State Comptroller audits local governments to assist them in improving their financial management practices. [Click on text highlighted in bold to access the full report.] 

DiNapoli: Colonie Addressing Financial Challenges

The Town of Colonie has improved its finances significantly in recent years due to stronger budget planning as it deals with fiscal stress, according to a report issued Tuesday by State Comptroller Thomas P. DiNapoli. The report is part of a series of fiscal profiles on municipalities across the state.

DiNapoli Presents Unclaimed Funds Checks At The New York State Fair

State Comptroller Thomas P. DiNapoli presented checks to nine Central New Yorkers Monday at the New York State Fair at his Office of Unclaimed Funds booth. The largest check, for $13,864.54 for an old bank account, was given to the Fryer Memorial Library in Munnsville.

For additional information concerning “unclaimed” monies that may be claimed by public entities, click on http://publicpersonnellaw.blogspot.com/2013/08/state-comptroller-holds-125-billion-in.html

Employer Pension Contribution Rates Announced For Fiscal Year 2014–15

Employer contribution rates for the New York State and Local Retirement System will decline slightly in Fiscal Year 2014–15, New York State Comptroller Thomas P. DiNapoli announced Tuesday.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced Wednesday his office completed audits of:

the Elmwood Village Charter School,

the Lake George Central School District,

the Southold Union Free School District,

the True North Troy Preparatory Charter School

and the Whitehall Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Wednesday his office completed audits of:

the Amsterdam Housing Authority,

the Village of Chatham and

the Lakeland Fire District.

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