An employee’s Constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully

An employee’s Constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully

2013 NY Slip Op 07104, Appellate Division, Third Department

An individual [Claimant]employed by Ulster County was arrested and charged with felony and misdemeanor counts of criminal possession of a controlled substance after heroin was found in the car she was driving. The County suspended Claimant without pay from her employment pending the resolution of the criminal charges.

Claimant then applied for unemployment insurance benefits and told the Department of Labor investigator that she was on disciplinary suspension because of her arrest and that she was "not guilty of any wrongdoing in connection with the arrest." Claimant was approved to receive unemployment insurance benefits based on this information.

Subsequently Claimant was convicted of two misdemeanor counts of criminal possession of a controlled substance in the seventh degree arising out of the arrest and Ulster County terminated her employment.

Following Claimant's termination by the County, a Labor Department Administrative Law Judge (ALJ) disqualified her from receiving unemployment insurance benefits on the ground that she had been separated from employment due to her misconduct. The Unemployment Insurance Appeal Board affirmed the ALJ’s decision and ultimately Claimant was held subject to a recoverable overpayment of unemployment insurance benefits in the amount of $31,935 and a reduced right to receive future benefits by 16 effective days on the Board’s finding that she had made willful misrepresentations to obtain benefits.

Complainant appealed contending that her statement to the investigator constituted “an exercise of her constitutional right against self-incrimination for which she could not be penalized by the Board.” The Appellate Division rejected this argument, explaining that although Claimant had the right to refuse to respond to any inquiries related to her possible guilt in connection with her arrest and the criminal charges then pending against her, "neither the text nor the spirit of the Fifth Amendment confers a privilege to lie."*

In the words of the Appellate Division, “By her response to the investigator's inquiry as to whether she was, in fact, guilty of the crimes she was charged with, [Claimant] “took a course that the Fifth Amendment gave [her] no privilege to take’ and the jury's verdict convicting her of knowingly possessing heroin at the time of her arrest conclusively established the falsity of her statement denying any wrongdoing.”

The Appellate Division sustained the Board’s determination, ruling that substantial evidence supported its finding that Claimant's affirmative statement to the Labor Department's investigator that she was "not guilty of any wrongdoing in connection with [her] arrest" was a willful misrepresentation made in order to obtain benefits.

* In Bryson v. United States, 396 US 64, the Court said “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07104.htm
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Town adopts a local law replacing a contract disciplinary procedure applicable to town police officers pursuant to Town Law §155

Town adopting a local law replacing a contract disciplinary procedure applicable to town police officers pursuant to Town Law §155

Town of Goshen v Town of Goshen Police Benevolent Assn., 2013 NY Slip Op 23365, Supreme Court, Orange County

In Matter of Town of Wallkill v Civil Serv. Employees Assn., Inc., 19 NY3d 1066 [2012] and Matter of Patrolmen's Benevolent Assn. of City of NY, Inc. v. New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006]. the Court of Appeals considered two companion appeals involving the effect of the Rockland County Police Act in one action and the New York City Charter and Administrative Code in the other case on the relevant municipality's authority over police discipline.

The Court of Appeals held that discipline of police officers "may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." The Court of Appeals applied that holding in Town of Wallkill, and upheld the Town of Wallkill's local law making police discipline the subject of local authority rather than collective bargaining.

In response to disciplinary charges filed against a police officer pursuant the Town’s Local Law No. 1 of 2013, the Police Benevolent Association [PBA] demanded that the matter be submitted to arbitration.

The Town, cited the Town of Wallkill ruling in support of its initiating disciplinary action against a town police officer pursuant to the Town’s local law, asked Supreme Court to grant its petition to stay submitting the matter to arbitration based on the Town’s representation that it had, pursuant to the authority provided under Town Law §155, supplanted ”the disciplinary procedure laid out in Article 13 of the CBA [Collective Bargaining Agreement] with the disciplinary procedure set forth in Local Law No. 1 of 2013.”*

The court agreed, holding that Article 13 of the CBA is null and void and the procedures set forth in the Town's Local Law, not those of the CBA, govern police discipline in the Town and the Town's Local Law controls with respect to the disciplinary charges brought against police officers following enactment of the Local Law, provided those charges were timely brought.

The PBA then move to have the disciplinary charges filed against the police officer dismiss, contending that they were untimely, pointing out that Town Law §155 provides that disciplinary charges "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

The PBA contend that the Town had knowledge of the facts underlying the charges more than 60 days prior to the charges being served on the police officer.**
 
In rebuttal the Town argued that the issue of timeliness of the disciplinary charges was not properly before the court. The Town also contended that, in any event, Local Law No.1 of 2013 "did not supplant the eighteen-month limitation period in the CBA agreement; it merely altered the process of noticing and hearing discipline, i.e., substituted a hearing officer for arbitrators and provided that the Town Board make the final determination."

The court agreed with the PBA, noting the statute of limitations set out in the Town Law §155 whereby disciplinary charges "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

Here, said the court, “having successfully eliminated the arbitration provisions from the CBA, the Town cannot extend the principles that derive from arbitration agreements to its local law and decree that the question of timeliness is to be determined by the Town Board or a hearing officer selected by the Town Board. Thus, in the absence of an arbitration agreement on the issue, the timeliness of the Town's disciplinary charges is an issue for the Court to determine.

Accordingly, Supreme Court ruled that the Town’s action in bringing disciplinary action against the police officer was untimely.

* Supreme Court noted that “The Town used the Town of Wallkill's local law as a model for [its] Local Law No. 1 of 2013 and the two [local] laws are virtually identical.”

** According to the decision, the police officer had been served with the Notice of Discipline more than 120 days after the Town Board had knowledge of the facts underlying its bringing the disciplinary action.

The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2013/2013_23365.htm
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Seniority for the purposes of layoff of a Unified Court System employee is determined solely on the basis of his or her permanent service with the System

Seniority for the purposes of layoff of a Unified Court System employee is determined solely on the basis of his or her permanent service with the System
2013 NY Slip Op 07135, Appellate Division First Department

A Senior Law Librarian[Librarian] was laid off as part of a workforce reduction by the Unified Court System [UCS]. USC had determined that Librarian did not qualify for the "legal and secretarial employees providing services directly to judges" exception to the reduction. 

In response to Librarian’s petition challenging USC’s determination, the Appellate Division ruled that USC’s decision was based its interpretation of its own guidelines and “was not arbitrary and capricious, or irrational." The court explained that Librarian’s title, Senior Law Librarian, did not place him in the category of personnel directly assigned to, and serving at the pleasure of, the judges.

USC had determined Librarian’s seniority “based solely upon his years of service for the UCS” in accordance with rules promulgated by the Chief Judge and set out in 22 NYCRR 25.30[a].

22 NYCRR 25.30[a] provides that personnel are to be laid off "in inverse order of original appointment on a permanent basis in the classified service of the [UCS]." The decision notes that the Judiciary Law § 211(1)(d)'s directive that the administrative standards imposed by the Chief Judge "be consistent with the civil service law," requires only that they be guided, not governed, by it.”

The Appellate Division concluded that  22 NYCRR 25.30's provision that personnel be reduced "in inverse order of original appointment on a permanent basis in the classified service of the [UCS]" is consistent with Civil Service Law §80(1)'s requirement that employees be given a preference based upon the length of their service and that its enactment was within the judiciary's authority of self-governance in administrative matters.

Civil Service Law §80.1 provide, in pertinent part, that “Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07135.htm

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Part II of a confidential report concerning allegations of discrimination, harassment and intimidation of Schoharie County employees posted on the Internet by the County

Part II of a confidential report concerning allegations of discrimination, harassment and intimidation of Schoharie County employees posted on the Internet by the County

Part II of the Confidential Report*dated October 24, 2013 concerning allegations of discrimination, harassment and intimidation of Schoharie County employees submitted by Mark J. Fitzmaurice, Esq., of the law firm of Fitzmaurice and Welsh, White Plains, New York, to the Schoharie County Board of Supervisors has been posted on the County's web site at: http://www.schohariecounty-ny.gov/CountyWebSite/DocumentIndexing/430100000000/3661.pdf

Part I of the report prepared by Mr. Fitmaurice entitled “Confidential Final Report Concerning Discrimination, Harassment and Intimidation in the County Workplace" submitted to the Schoharie County Board of Supervisors was earlier posted by the County on the County's Internet site at 

http://www.schohariecounty-ny.gov/CountyWebSite/countyreport.html.

* Parts of Part II of the report have been redacted.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 2, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 2, 2013

Click on text highlighted in color  to access the full report

DiNapoli: Fire Company President Stole $34,000S

The former president of C. H. Evans Hook and Ladder Fire Company No. 3, located in the city of Hudson, misused the company’s debit card to make personal purchases totaling approximately $34,000, according to an audit released November 1, 2013 by State Comptroller Thomas P. DiNapoli. The former president, Joseph Morrison Jr., pleaded guilty on October 29, 2013 in Columbia County Court to the charge of Grand Larceny in the third degree, a class D felony.

DiNapoli Reaches Agreement with TD Ameritrade to Expand Protections Against Discrimination

TD Ameritrade Holding Corporation, one of America’s largest online brokerage firms, has agreed to amend its equal employment opportunity policy to explicitly prohibit discrimination based on sexual orientation or gender identity nationwide, New York State Comptroller Thomas P. DiNapoli announced November 1, 2013..

DiNapoli: State Fiscal Picture Stable

State spending was nearly $860 million lower than expected through the first half of the fiscal year while tax collections were just shy of projections, according to the Mid-Year Update and September cash reportreleased Wednesday by New York State Comptroller Thomas P. DiNapoli. Still, threats of another federal government shutdown and battle over the federal debt ceiling, as well as the continued slow pace of economic growth, could make it harder for the state to remain in line with its financial plan.

Comptroller DiNapoli Releases School Audits

On Wednesday, October 26, 2013 New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the Albany Community Charter School;

the Elba Central School District;

the Health Sciences Charter School;

the King Center Charter School; and

the Oyster Bay–East Norwich Central School District.
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Moreland Commission to Investigate Public Corruption update

Moreland Commission to Investigate Public Corruption update

The Moreland Commission to Investigate Public Corruption hearing, held on October 29, 2013 in New York City, heard testimony focusing on campaign finance reform.

A 4 hour video of the hearing is posted on the Internet at:

http://www.youtube.com/watch?v=GUSPXRXADyY

Videos of previous hearings of the Commission are available on the Internet as follows:

The Moreland Commission to Investigate Public Corruption hearing, held on September 17th, 2013 in New York City, heard testimony focusing on federal and state criminal laws and the adequacy of existing state laws, rules and regulations involving misconduct by public officials.

A 3 ½  hour video of the hearing is posted on U-tube at:

http://www.youtube.com/watch?v=LP1GeOYKRas

The Moreland Commission to Investigate Public Corruption hearing, held on September 24, 2013, in Albany, New York, heard testimony focusing on campaign finance, outside income of state elected officials and political party housekeeping accounts.

A 2 ½ hour video of the hearing is posted on U-tube at:
http://www.youtube.com/watch?v=iLEhNUVdQaU

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Terminated employee must satisfy four tests in order to establish a prima facie case of unlawful discrimination because of his or her age

Terminated employee must satisfy four tests in order to establish a prima facie case of unlawful discrimination because of his or her age

2013 NY Slip Op 06991, Appellate Division, First Department

The school principal [Principal] alleged that during the relevant period of her employment by the New York City Department of Education -- the 2010-2011 school year -- she was 54 years old and served as the principal of a school she had founded.  

Principal had received satisfactory performance reviews for two years but alleged that she had been subjected to unfair and excessive scrutiny and reprimands during the 2010 to 2011 academic year, including an investigation into allegations of misconduct.

Terminated from her position in June 2011, Principal sued, contending that she had suffered unlawful discrimination because of her age. Supreme Court granted her employer's motion to dismiss Principal’s complaint as against it, which ruling was unanimously affirmed by the Appellate Division.

The Appellate Division said that although Principal had established three of the four elements necessary to establish a prima faciecase of age discrimination by showing that:

[1] Principal was a member of a protected class, being 54 years of age at the time of the alleged discrimination

[2] that Principal was qualified for the position by reason of having received satisfactory performance ratings during the relevant time period; and

[3] Principal had been subjected to an adverse employment action – termination;

Principal had failed to establish the fourth element required -- that she was either terminated or treated differently under circumstances giving rise to an inference of age discrimination.

While Principal argued that she was treated adversely under the State law or less well under the City Human Rights Law, the Appellate Division said that Principal did not make any concrete factual allegations in support of that claim other than that Principal was 54 years old. Such an allegation, said the court, was but “mere legal conclusions, and did not suffice to make out the [required] fourth element of [Principal's unlawful discrimination] claim."

Another element in this action concerned Principal's claim of being employed in a “hostile work environment.” However, in the words of the Appellate Division, Principal's “failure to adequately plead discriminatory animus is similarly fatal to [any] claims of hostile work environment and violation of the New York State Constitution's equal protection and antidiscrimination provisions.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06991.htm
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