The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct

The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct
2013 NY Slip Op 05942, Appellate Division, Third Department

A school custodian [Employee] was served with disciplinary charges pursuant to Civil Service Law §75 alleging that he was guilty of misconduct, incompetence and insubordination. The disciplinary hearing officer found Employee guilty of charges of misconduct and insubordination involving numerous incidents, including Employee’s sleeping while on duty and Employee’s “using vacation days” without giving proper notice or obtaining authorization to do so.

The hearing officer also determined that Employee was guilty of misconduct and insubordination with respect to his behavior after being served with the initial disciplinary charges and specifications brought against him by “verbally abusing his supervisor and failing to immediately leave the premises after being directed to do so.”*

Noting that Employee had violated an earlier "last chance" agreement specifying that dismissal was appropriate if he engaged in any future misconduct, the hearing officer recommended that Employee be terminated from his position.

The appointing authority adopted the hearing officer’s findings and recommendation and dismissed Employee from his position.

Employee applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that Employee's behavior “did not rise to the level of disqualifying misconduct" and awarded him unemployment insurance benefits.The employer appealed the Board’s decision.

The Appellate Division reversed the Board’s ruling, explaining that although the Board was free to make "independent additional factual findings" and draw its own independent conclusion as to whether Employee's behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the disciplinary hearing officer's "factual findings” with respect to Employee’s conduct and the hearing officer's conclusion that Employee was guilty of insubordination.

As the Board failed to consider whether some of the established instances of misbehavior constituted disqualifying misconduct, and improperly contradicted other factual findings of the disciplinary hearing officer, the Appellate Division remanded the matter to the Board “so that it may reconsider” its ruling consistent with the court’s decision.

* Presumably the initial disciplinary charges served on Employee were amended or supplemented to reflect these additional allegations of misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05942.htm
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The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual

The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual

OATH Index No. 2041/13

The New York City Human Resources Administration initiated disciplinary action against an employee alleging the employee was AWOL based on the individual's long-term absence from work. The employee’s absence from work resulted from the individual’s incarceration and conviction of a crime.

The employee resigned soon after the disciplinary hearing was held and asked that the OATH Administrative Law Judge to refrain from issuing a decision.*

ALJ Joan R. Salzman ruled that the employer has the right to request a determination on the merits of the charges “for the legitimate purpose of assessing future public employment under Civil Service Law.”

Judge Salzman found the employee guilty of misconduct but made no penalty recommendation in consideration of the individual’s resignation. 

* 4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides, in pertinent part, “when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.. A number of local civil service commissions have adopted a similar rule applicable to employees appointed by public entities subject to its jurisdiction.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2041.pdf
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Benefits available to State employees and employees of a political subdivision of the State ordered to military service

Benefits available to State employees and employees of a political subdivision of the State ordered to military service

§§242 and 243 of New York State’s Military Law

Ronald Miller, Esq., in an item posted in CCH’s Blog Employment Law Daily,* reports that a “city was denied summary judgment against an employee’s claim that it refused to reemploy her as a building custodian following her return from active duty with the National Guard (Sanderson v City of Farmington Hills, EDMich, September 17, 2013).”

Mr. Miller commented that: “A federal district court in Michigan rejected the city’s contention that the employee’s failure to report to work as requested, or to submit an application for reemployment, precluded her claim. Moreover, the court determined that the requirement of 38 USC Sec. 4311, that an employee show discrimination based on military service, was not triggered because she was never reemployed.”

§§242 and 243 of New York State’s Military Law grants certain rights to public officers and employees ordered to military duty.

§242 sets out the rights of public officers and employees absent on military duty as members of the organized militia or of reserve forces or reserve components of the armed forces of the United States. §243 addresses the rights of a public officer or employee while on ordered military service and his or her rights to reinstatement following his or her release from such ordered military service.

Essentially every public officer or employee is entitled to absent himself or herself for ordered military service** and is deemed to have a leave of absence from his or her duties or service as such public officer or employee while engaged in the performance of ordered military duty and while going to and returning from such duty.

As to reinstatement to his or her position, §243.2, in pertinent part, provides “Such public employee shall be reinstated to his position as soon as possible provided he [or she] makes application for such reinstatement within ninety days after the termination of his [or her] military duty, or at any time during his [or her] terminal leave. Thereafter, he [or she] may be so reinstated, at any time after such ninety-day period and within one year after the termination of his [or her] military duty, in the discretion of the appointing officer or body.”

§§242 and 243 also provide other benefits to officers and employees absent on military leave such as "pay for military duty;" the ability to elect to contribute to his or her pension or retirement system while on military duty; protecting his or her status on an eligible list, crediting military service towards completing probationary service requirements and rights related to placement on special military lists and military "reemployment lists" under certain circumstances.

* The full text of Mr. Miller’s item is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/employers-claim-that-national-guard-member-failed-to-comply-with-userras-requirements-for-reemployment-fails/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29

** N.B. §243.1(b) requires police officers to obtain the prior consent of their public employer before absenting themselves from their position for military service in order to be eligible for certain benefits.

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CPLR Article 78 expresses a preference that state courts, rather than federal courts, decide a federal litigant’s “state-law statutory-construction” claim

CPLR Article 78 expresses a preference that state courts, rather than federal courts, decide a federal litigant’s “state-law statutory-construction” claim

Carver v. Nassau County Interim Finance, CA2, Docket Nos. 13-0801, 13-0840

James Carver, Gary Learned, and Thomas R. Willdigg, as presidents of the their respective employee organizations representing certain employees in Nassau County police collective bargaining units [Police Union], challenged a wage freeze imposed by the Nassau County Interim Finance Authority [NIFA].* Police Union alleged that the freeze violated the Contracts Clause, Article I, Section 10 of the Constitution of the United States and NIFA’s power to impose a wage freeze pursuant to §3669 of the New York Public Authorities Law had expired.

The district court granted summary judgment to Police Union based solely on the statutory Interpretation of its State law claim. NIFA appealed and the Circuit Court of Appeals held that the district court, in granting summary judgment to Police Union on its state law claim without reaching the constitutional question, abused its discretion in exercising pendent jurisdiction over the statutory construction claim. It vacated the lower court’s ruling and remanded the matter with instructions to the district court to dismiss Police Union’s statutory construction claim..

On January 26, 2011, NIFA imposed a control period. After Nassau County unsuccessfully challenged the imposition of the control period in an Article 78 proceeding, County of Nassau v. Nassau County Interim Finance Authority, 33 Misc. 3d 227, NIFA passed two resolutions freezing wages for all County employees on March 24, 2011.

The wage freeze forced the County to breach the terms of the collective bargaining agreements it had entered into with the various County police unions. On April 1, 2011, Police Union commenced this action in federal court, alleging that the wage freeze violated the Contracts Clause, Article I, Section 10 of the Constitution. Police Union later amended its complaint to add a second claim that NIFA lacked the authority under state law to order a wage freeze after the conclusion of the interim finance period.

The district court did not reach Police Union’s “Constitutional claim,” holding that the statutory question was “most appropriate for summary disposition.”

The Circuit Court, noting that district courts have supplemental jurisdiction over pendent state law claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution,” 28 U.S.C. §1367(a) said that it was reviewing the district court’s decision to assert supplemental jurisdiction over a state law claim under an abuse-of-discretion standard.

As this case “… concededly presents an unresolved question of state law and is also one in which there are exceptional circumstances which provide compelling reasons for declining jurisdiction,” the Circuit Court held that “the construction of the provision of the NIFA Act at issue raises an unresolved issue of state law – the interpretation of a poorly drawn statute – that should be resolved by the New York state courts because the manner in which the statute is construed implicates significant state interests.”

The court explained that as it had previously ruled, “[w]here a pendent state claim turns on novel or unresolved questions of state law, especially where those questions concern the state’s interest in the administration of its government, principles of federalism and comity may dictate that these questions be left for decision by the state courts,” citing Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998).

Although the defendants argued that jurisdiction over this pendent state law claim should be denied because of the special statutory procedure that New York law – CPLR Article 78 – provides for adjudicating claims that a body or officer has acted in a manner not authorized by state law the Circuit Court said that it “need not decide, however, whether Article 78 can, on its own, deprive a federal court of jurisdiction over claims brought under that provision, as some district court cases have held….” For present purposes, said the court, it is sufficient to recognize that Article 78 reflects a state preference for a state mode of procedure that “is designed to facilitate a summary disposition of the issues presented . . . and has been described as a fast and cheap way to implement a right that is as plenary as an action, culminating in a judgment, but is brought on with the ease, speed and inexpensiveness of a mere motion.”

The Circuit Court said that on remand “the district court should dismiss the state-law claim, but retain jurisdiction over [Police Union’s] federal constitutional claim. Should Police Union decide to pursue its state-law statutory-construction or other related claims in state court, the district court may decide, within its discretion, to stay the federal action until the state-court litigation has completed because the state courts’ resolution of the state claim may obviate the need to resolve the federal constitutional question.

* The Nassau Interim Finance Authority is a public benefit corporation created by the New York State Legislature in June 2000 in response to the growing financial crisis facing Nassau County.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/b65ec9ef-fa95-4977-ab50-375dc005b6b9/1/doc/13-801_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b65ec9ef-fa95-4977-ab50-375dc005b6b9/1/hilite/.

The Commissioner of Education does not provide an “advisory opinion” in adjudicating an appeal filed pursuant §310 of the Education Law

The Commissioner of Education does not provide an “advisory opinion” in adjudicating an appeal filed pursuant §310 of the Education Law

Decisions of the Commissioner of Education, Decision No. 16,551

In this appeal the educator alleged that the school district had assigned her to a tenure area without her consent.

Citing Appeal of Vuoto, 44 Ed Dept Rep 251, [Decision No. 15,163], the Commissioner dismissed the educator's complaint explaining that essentially the educator sought an advisory opinion concerning her seniority status and that such “relief that is unavailable in an Education Law §310 appeal.”

However, said the Commissioner, his dismissal of the educator’s appeal was “without prejudice to any future application for similar relief should [the educator] hereafter become actually aggrieved within the purview of Education Law §310.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16551.pdf
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