Suspension without pay pending employer’s disciplinary determination

Suspension without pay pending employer’s disciplinary determination

CSEA, Cortland Local v Cortland Hous. Auth., 2014 NY Slip Op 01652, Appellate Division, Third Department

In August the Cortland Housing Authority served disciplinary charges pursuant to Civil Service Law §75 against a member of the Civil Service Employees Association’s Local Housing Association Unit and suspended her without pay. As the disciplinary hearing had not been conducted within 30 days, the member was restored to the Authority’s payroll while she remained suspended from work.*

In mid-December the Local filed a demand to arbitrate the disciplinary matter involving the member. Upon receipt of the demand for arbitration the Authority removed the member from the payroll and initiated a proceeding to permanently stay arbitration.

Supreme Court granted the stay the following February but a disciplinary hearing in accordance with Civil Service Law §75 was not scheduled. In April the Local commenced this proceeding on behalf of its member seeking to restore her to the Authority’s payroll retroactive to December as no disciplinary hearing had yet been scheduled.

Supreme Court determined that the delay caused by the Local’s demand for arbitration, together with 30 days as a reasonable time thereafter within which to hold a hearing, should be charged to the member. Accordingly, the court directed that the member be restored to pay status retroactive to the following March 29^th with back salary less any unemployment benefits that she may have received since that date and thereafter continuing on the payroll until the disciplinary matter is resolved.

The Authority appealed, contending that the proceeding seeking reinstatement to the payroll was premature and should not be considered ripe for review until after the Civil Service Law §75 hearing is concluded. The Appellate Division disagreed and affirmed the lower court’s determination.

The court explained that where unreasonable delay occurs in holding a disciplinary hearing and that delay is attributable in part to the public employer, an employee whose suspension without pay has exceeded 30 days may seek reinstatement to the payroll pending a final disciplinary determination by the appointing authority.

The Appellate Division also noted that “a reduction from back pay of the amount of unemployment insurance benefits received during such time is statutorily authorized” and that Supreme Court properly reduced the award by that amount, “but there was no need to further reduce the award under the circumstances.”**

The court explained that an employer's best protection against a back pay award accruing is to hold the hearing within 30 days or, if beyond 30 days, create a clear record reflecting that it is not responsible for the delay.

However, it should be noted that courts have approved the placement of an individual on leaves without pay for periods equal in length to any adjournment in the §75 hearing process requested by the employee. [See, for example, DeMarco v City of Albany, 75 AD2d 674, Amkraut v Hults, 21 AD2d 260].

* See Civil Service Law §75 [3].

** N.B. Prior to its amendment in 1984, §75.3 provided that an employee acquitted of disciplinary charges be “restored to his position with full pay less the amount of compensation which he may have earned in any other employment and any unemployment insurance benefits." In §75.3 was amended by Chapter 710 of the Laws of 1984 and no longer authorized an adjustment reflecting compensation received because of “other employment”. [See, also, §76 and §77 of the Civil Service Law.]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01652.htm


 

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Failing to take lawful action against an individual in exchange for a benefit

Failing to take lawful action against an individual in exchange for a benefit

2014 NY Slip Op 01663, Appellate Division, First Department

A New York City police officer [Officer] was terminated from his position after being found guilty of failing to take lawful police action against an individual who was driving without a license in exchange for that individual agreeing to provide a benefit to Officer, -- “installing sheetrock at [Officer’s] home.”

The Appellate Division sustained the Commissioner’s termination of Officer, noting that substantial evidence supported the determination. Further, said the court, “The penalty of termination does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The Appellate Division also considered the fact that “one of the two main witnesses relied upon by the hearing officer in reaching his conclusion had recanted his testimony” some two years later.

The Commissioner, however, had denied Officer’s request for a new hearing based on “this new evidence.” The court said that the recantation raised issues that were addressed by the Commissioner, who considered the submissions by Officer and reviewed of all the evidence.*

The Appellate Division decided that “Under the circumstances, including the sufficiency of the other evidence, the witness's recantation did not warrant a further hearing.”

* The Appellate Division, citing Douglaston Civic Assn. v Galvin, 36 NY2d 1, noted that the Commissioner’s 2013 decision denying Officer's request for a new hearing based on such “new evidence” could not reviewed in the instant proceeding as a separately brought petition was required.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01663.htm

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Sleeping on the job

Sleeping on the job

OATH Index No. 2196/13  

The New York City Health and Hospitals Corporation (HHC) charged a hospital police officer with sleeping or assuming a sleeping position while on an eight-hour tour that began at midnight.

HHC relied on video evidence that showed police officer’s head bobbing up and down and sideways after she was assigned to the front desk. Further, the officer admitted that her head was down and she was fighting to not fall asleep.

OATH Administrative Law Judge Faye Lewis found that HHC proved the charge and recommended seven days’ suspension as the officer had no prior disciplinary record.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/13-2196.pdf

Refusing to accept work assignments constitutes insubordination and dereliction of duty

Refusing to accept work assignments constitutes insubordination and dereliction of duty

2014 NY Slip Op 01505, Appellate Division, First Department

Supreme Court denied an Article 75 petition filed by a New York City tenured teacher [Teacher] challenging a disciplinary arbitrator’s decision to terminate Teacher and dismissed the proceeding.

The Appellate Division affirmed the lower court’s ruling, explaining that the record indicated that Teacher “without reasonable or legitimate justification, continually refused teaching assignments” during the school year.

Such conduct, said the court, constitutes "insubordination and the dereliction of duties." As the arbitrator’s finding was “supported by adequate evidence in the record,” the Appellate Division said there was no basis upon which to disturb the credibility determinations of the Hearing Officer.

As to the penalty imposed by the arbitrator, termination, the court said that it did not shock its sense of fairness in light of the extensive nature of Teacher's insubordinate conduct throughout the school year. Such insubordination, said the court required the school to hire a substitute teacher to cover Teacher’s class. Further, noted the Appellate Division, Teacher’s refusal to admit to any wrongdoing indicated a likelihood of a recurrence of such insubordinate conduct.

The Appellate Division also noted that although the arbitration award was not issued in a timely manner, Teacher was not prejudiced by the delay.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01505.htm

Providing a reasonable accommodation of an employee’s disability

Providing a reasonable accommodation of an employee’s disability
2014 NY Slip Op 01550, Appellate Division, First Department

An employee [Plaintiff] sued her employer contending that it had failed to provide her with a reasonable accommodation of her disability when it refused to reassign her to a particular location.

Supreme Court dismissed Plaintiff’s complaint and the Appellate Division affirmed the lower court’s ruling.

The court said that the employer had established that its refusal to agree to Plaintiff’s request to be reassigned to a certain work location did not constitute a refusal to make a reasonable accommodation of her disability.

The Appellate Division noted that there was no position available at the location Plaintiff desired, and, citing Pimentel v Citibank, N.A., 29 AD3d 141, said that in any event, "an employer is not obligated to provide the disabled employee with [an] accommodation that the employee requests or prefers."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01550.htm
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Individual’s unsatisfactory annual performance rating annulled in the absence of rationally based administrative findings

Individual’s unsatisfactory annual performance rating annulled in the absence of rationally based administrative findings

2014 NY Slip Op 01501, Appellate Division, First Department

A New York City school teacher [Teacher] filed an Article 78 petition challenging the New York City Board of Education’s denial of her appeal of her unsatisfactory annual performance rating. Supreme Court granted the Board’s motion to deny the teacher’s petition and dismissed the proceeding.

The Appellate Division unanimously reversed the lower court’s decision “on the law.” It then granted Teacher’s petition and annulled the challenged unsatisfactory annual performance rating.

The court said that Board’s determination to sustain Teacher’s unsatisfactory performance rating was not rationally based on administrative findings that Teacher had acted in an insubordinate manner and refused to adhere to the directives of the principal during the school year.

In addition, the Appellate Division found that Teacher had established that the Board had violated its own rules, procedures and guidelines contained in its human resources handbook "Rating Pedagogical Staff Members" by placing certain disciplinary letters in Teacher’s personnel file which neither contained Teacher's signature acknowledging receipt of the letters nor a witness' statement attesting to Teacher's refusal to sign the documents in question..

The decision notes that neither the principal who made the allegations against Teacher nor any other witness testified at the hearing.

Under the circumstances, the Appellate Division said that remittitur to Supreme Court for service of an answer to Teacher’s petition by the Board was not warranted "as the facts have been fully presented in the parties' papers and no factual dispute remains."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01501.htm
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Legal Ethics Webinar: Using Social Media and the Cloud

Legal Ethics Webinar: Using Social Media and the Cloud

An online Webinar focusing on ethical issues related to an attorney's use of Social Media and the Cloud in his or her practice will be offered on March 13, 2014 at Virtual LegalTech, 1:00pm - 2:00pm ET -  

Registration is complimentary -- click here to register. 

Ethics CLE will be offered for credit in New York, New Jersey and California to those viewing the Webinars at the appointed times at the Virtual LegalTech presentation on March 13, 2014.*

LegalTech notes that “Protecting Attorney Client privilege is essential to every lawyer. Now most communications are electronic but few lawyers understand how the use of Social Media and cloud computing potentially affects privilege. 

“Lawyers use of cloud computing for record retention impact all clients in eDiscovery for litigation.  This presentation will give specific advice to lawyers so they better understand Social Media and cloud computing as well as the related Cybersecurityre risks.

“Ethics topics will include: Ethical Duty to Provide Competent Representation; Duty of Confidentiality; Ethical Information Gathering; Spoilation Concerns; and Inadvertent Creation of an Attorney - Client Relationship.”

* Ethics CLE credit approval is pending in Florida and Illinois.
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Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book- A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://thedisciplinebook.blogspot.com/

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://nylayoff.blogspot.com/

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://section207.blogspot.com/

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 8, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 8, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday, March 6, 2014, announced his office completed audits of:

the Town of Amenia;

the Jericho Water District; Town of Poland; and

the Town of Porter.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday, March 6, 2014, announced his office completed audits of:

the Ausable Valley Central School District;

the Frontier Central School District; and

the Utica City School District.

DiNapoli Announces $15 Million Investment in Northern Ireland

New York State Comptroller Thomas P. DiNapoli Tuesday, March 4, 2014, announced that the New York State Common Retirement Fund is investing $15 million (£9 million) with Northern Ireland venture capital firm Crescent Capital.

DiNapoli: Nearly $1 Million in Questionable Payments Result from Poor Monitoring by OASAS

Samaritan Village Inc., a contractor of substance abuse treatment for the Office of Alcoholism and Substance Abuse Services (OASAS), was paid nearly $1 million in inappropriate and questionable expenses over a one–year period, according to an auditreleased Monday, March 3, 2014, by State Comptroller Thomas P. DiNapoli. The questionable expenses included more than $400,000 given to clients to spend on day trips and transportation.

DiNapoli: Audits Reveal Problems with Local IDAs

Industrial Development Agencies (IDAs) in Dutchess, Greene and Putnam counties granted questionable tax incentives and failed to enforce job creation goals, according to audits released Tuesday, March 4, 2014, by State Comptroller Thomas P. DiNapoli. DiNapoli renewed his call for better accountability for IDAs and urged the State Legislature to consider his proposed IDA reform legislation.

DiNapoli Calls for Improvements to Capital Planning Process

Over the past 10 years, New York spent an estimated $81.7 billion — including tax dollars, federal aid and long–term borrowing proceeds — to support its capital program, with another $9.6 billion proposed for the upcoming fiscal year, according to a reportreleased Thursday, March 6, 2014, by State Comptroller Thomas P. DiNapoli. The report, which reviews New York’s capital spending over the past decade and plans for the coming years, concludes that reforms are needed to ensure that New York State is spending its billions of capital project dollars wisely.

State Pension Fund Makes New Commitment of $10 Million for Investments in New York Companies

New York State Comptroller Thomas P. DiNapoli announced Thursday, March 6, 2014, a $10 million commitment to venture capital firm Tribeca Venture Partners (TVP) through the New York State Common Retirement Fund’s (Fund) In–State Private Equity Program. TVP will use the funds to provide early stage venture capital funding to New York state–based companies. This is the Fund’s second commitment to TVP.

DiNapoli Statement on Special Education Provider Guilty Plea in Federal Court

New York State Comptroller Thomas P. DiNapoli Friday, March 7, 2014, issued the following statement on the guilty plea to mail fraud in federal court by Cheon Park, the owner of Bilingual SEIT & Preschool Inc., which stemmed from a referral from DiNapoli’s office.
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Fraternization on the job

Fraternization on the job

OATH Index No. 391/14

Department of Correction (DOC) brought charges against a correction officer relating to her relationship with an inmate, the father of her children.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the officer failed to notify DOC about her pre-employment relationship with the inmate, brought her cell phone on post to speak with him, and engaged in unauthorized financial dealings and discussed official business with him.

AJJ recommended that the correction officer be termination from employment.

Other disciplinary actions taken against employees as a result of alleged fraternization on the job are posted on the internet at:

http://publicpersonnellaw.blogspot.com/2012/03/applying-employers-anti-fraternization.html

http://publicpersonnellaw.blogspot.com/2010/01/correction-officer-dismissed-after.html

http://publicpersonnellaw.blogspot.com/2012/02/hearing-officer-recommends-correction.html

and

http://publicpersonnellaw.blogspot.com/2010/02/hearing-officer-recommends-termination.html

Decision 391/14 is posted on the Internet at:

http://archive.citylaw.org/oath/14_Cases/14-391.pdf
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