Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision

Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision

OATH Index No. 1233/14

OATH Administrative Law Judge Tynia D. Richard presided at a Civil Service Law §72 disability proceeding initiated by the appointing authority. The employer alleged that the individual was “mentally unfit to perform the duties of his position.” The employee denied the allegation.

Judge Richard found the evidence supported the medical opinion of a board certified psychiatrist that the individual was unfit to perform the duties of his position due to a psychotic condition, known as delusional disorder of a persecutory nature, that impeded his ability to make basic engagements with reality and recommended that the employee be placed on leave pursuant to Civil Service Law §72.

The employer subsequently submitted an e-mail requested an “expedited decision” based on the employee’s conduct after the hearing had been closed. The employee’s attorney sent an e-mail objecting to the employee’s post hearing conduct being made a part of the record in this case so as to form the basis for expediting a decision.

The ALJ advised the parties that “it was not proper to put additional facts before me as the record of the case is closed.”  Judge Richard also noted the procedure that the parities were to use in seeking an expedited decision. However, said Judge Richard, a formal request for an expedited decision was never filed.

Although Judge Richard entered the e-mails into the record, she advised the parties that she had not taken the new allegations into account in her analysis of the case nor in making her determination.

The determination: Judge Richard found that the employee was unfit to remain in his position and recommended that he be placed on leave pursuant to §72 of the Civil Service Law, which recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

 http://archive.citylaw.org/oath/11_Cases/14-1233.pdf
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Filing fraudulent documents to obtain a benefit

Filing fraudulent documents to obtain a benefit

OATH Index No. 229/14

A New York City correction officer was charged with tendering fraudulent documents to obtain subsidized housing benefits, establishing residency in another state for purposes of engaging in unauthorized outside employment, and engaging in unauthorized outside employment.

OATH Administrative Law Judge Astrid B. Gloade found that the officer underreported her income to obtain Section 8 housing benefits*and that although this misconduct   occurred when the employee was “off-duty” an employer may discipline an employee for off-duty misconduct where there is sufficient nexus between the conduct to be

sanctioned and the employee’s job position, citing Villanueva v. Simpson, 69 N.Y.2d 1034.

Judge Gloade also found the the employee had an unauthorized job while on a leave of absence from the Department.

The residency charge was dismissed by the ALJ, who found that the employer failed to prove that the correction officer established residency in another state for purposes of engaging in outside employment..

Judge Gloade, however, recommended that the correction officer be terminated from her position on the basis of charges that were proven by the agency.

* The employee “plead guilty to disorderly conduct (Penal Law §240.20) and agreed to pay restitution in the amount of $19,127 to the federal government within one year” with respect to her obtaining Section 8 housing benefits.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/14-229.pdf

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The doctrine of respondeat superior

The doctrine ofrespondeat superior

Selmani v City of New York, 2014 NY Slip Op 02764, Appellate Division, Second Department

In this action the Appellate Division sets out the basics regarding the doctrine of respondeat superior.

Essentially, said the court, the doctrine of respondeat superior will hold an employer vicariously liable for torts committed by an employee acting within the scope of the individual’s employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the individual’s employment.

The Appellate Division indicated that:

1. "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business'.”

2. "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment."

3. “Where, however, an employee's actions are taken for wholly personal reasons, which are not job related, the [employee’s] actions cannot be said to fall within the scope of employment.”

4. “In instances where vicarious liability for an employee's torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained.”

In this actions certain patrons at restaurant alleged that the individual defendants named in their compliant, who were members of the employer’s Fire Department, entered the restaurant with coworkers, including supervisors. The group of firefighters had allegedly come from a Fire Department annual dinner held at another location and continued celebrating and drinking at the restaurant.

One of the injured plaintiffs allegedly accidentally spilled a drink on a firefighter and was allegedly attacked and assaulted by the named defendant-firefighters. The employer moved for summary judgment dismissing the complaint insofar as asserted it. The Supreme Court granted the motion.

The Appellate Division modified the Supreme Court’s order by deleting the provision granting that branch of the employer’s motion for summary judgment dismissing the causes of action alleging negligent hiring, supervision, training, and retention insofar as asserted against them. The court, instead, substituted a provision denying that branch of the motion; as so modified, affirmed the Supreme Court’s order.

The Appellate Division explained that although Supreme Court properly granted” the employer’s motion for summary judgment dismissing the causes of action alleging vicarious liability, as the employer had established its prima facie entitlement to judgment as a matter of law by demonstrating that the tortious conduct of named defendant-firefighters was not within the scope of their employment,* it failed to rebut the plaintiffs’ claims of alleged “negligent hiring, supervision, training, and retention,” and thus the employer did not establish its entitlement to summary judgment as a matter of law on that branch of the plaintiffs' complaint.

The employer, said the court, failed to submit any evidence demonstrating that it did not know or have reason to know of defendant-firefighters’ alleged “propensity for assaultive conduct” nor did the employer submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs' injuries.

* This finding suggests that the defendant–firefighters can neither claim “defense nor indemnification” from their employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02764.htm

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Civil Service Commission's decision in an appeal to the employer's disciplinary determination is reviewable by the court

Civil Service Commission's decision in an appeal to the employer's disciplinary determination is reviewable by the court

City School District of Lockport v. Cappola, 83 A.D.2d 751, motion for leave to appeal denied, 57 N.Y.2d 607

An employee appealed the employer’s finding that the individual was guilty of certain disciplinary charges it filed against the worker pursuant to §75 of the Civil Service Law and the penalty it imposed, suspension without pay for two days, to the Civil Service Commission as provided by §76.1 of the Civil Service Law.

§76.1, in pertinent part, provides as follows:  “Any officer or employee believing himself aggrieved by a penalty or punishment of demotion in or dismissal from the service, or suspension without pay, or a fine, or an official reprimand, unaccompanied by a remittance of said officer or employee's prehearing suspension without pay, imposed pursuant to the provisions of section seventy-five of this chapter, may appeal from such determination either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with the provisions of article seventy-eight of the civil practice law and rules.”

The Commission vacated the employer’s determination, ruling that there was insufficient evidence in the record to support the findings of the hearing officer.

The Employer appealed the Commission’s determination.

Noting that although the text of the Civil Service Law §76.3 states, in pertinent part, “The decision of such [state or municipal] civil service commission shall be final and conclusive, and not subject to further review in any court.” the Appellate Division ruled that the Commission’s decision was, indeed, reviewable by the court, explaining that “Despite the language which seems to preclude judicial review, a CPLR article 78 proceeding will lie where it is alleged that the Commission's decision was ‘purely arbitrary’ or where the penalty imposed by the Commission is challenged as an abuse of discretion.”

The court then sustained the Commission’s decision as reasonable.

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Complaint alleging violations of the State’s and New York City’s Human Rights Laws dismissed for failure to establish a prima facie case of unlawful discrimination

Complaint alleging violations of the State’s and New York City’s Human Rights Laws dismissed for failure to establish a prima facie case of unlawful discrimination

2014 NY Slip Op 02696, Appellate Division, First Department

State Supreme Court Judge Arthur F. Engoron granted the employer’s motion to dismiss the unlawful discrimination, hostile work environment, and retaliation claims under the State and City Human Rights Laws (HRL) (Executive Law §290 et seq.; Administrative Code of City of NY §8-101 et seq.), filed by one of its employees, [Plaintiff].

Construing the complaint liberally, presuming its factual allegations to be true, and according it the benefit of every possible favorable inference, the Appellate Division sustained the lower court’s ruling explaining that Plaintiff failed to adequately plead that she was subjected to an adverse employment action as none of the allegations set out in her complaint rises to the level of an actionable adverse employment action.

In addition the court found that Plaintiff failed to adequately plead discriminatory animus, which is fatal to both her discrimination and hostile environment claims as her complaint does not contain any allegations of any comments or references to Plaintiff's age or race made by any employee of employer.

Further, said the Appellate Division, Plaintiff’s petition does not contain any factual allegations demonstrating that similarly situated individuals who did not share Plaintiff's protected characteristics were treated more favorably than Plaintiff and her “conclusory allegations of a hostile environment are insufficient to state a claim under either the State or City Human Rights Laws.

Plaintiff’s allegations of “retaliation” faired no better as she failed to plead any facts regarding when the alleged retaliatory incidents occurred or how those incidents were causally connected to any protected activity, nor did she state the substance of her alleged complaints, to whom she allegedly complained, or when such complaints were made.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02696.htm
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Security of government computer records

Security of government computer records

State Technology Law and other provisions of law

A town recently reported that its accounting program was the victim of hacking and a number of “payroll checks” were processed and presented for payment. Although the town’s bank “caught” the fraudulent checks, the town expressed concern that personal information in its system may have been compromised and asked its attorney to advise it as to its possible liability to individuals who may suffer as a result of the theft of personal data.

To assist public agencies to cope with the increasing number of attempts to breach computer security efforts, the New York State Office of Cyber Security has issued its Cyber Security Policy P03-002, Information Security Policy, posted on the Internet at http://www.dhses.ny.gov/ocs/resources/documents/cyber-security-policy-p03-002-v3.4.pdf, while the State Comptroller’s Division of Local Government and School Accountability has issued a “Local Government Information Security” statement that is posted on the Internet at http://www.osc.state.ny.us/localgov/pubs/research/snapshot/cybersecurity0811.pdf

A “Cyber Security Citizen’s Notification Policy” has been adopted by municipalities to deal with a breach of its computer security protocols. For example, the Village of North Hills has such a policy it has posted on the Internet [ http://ecode360.com/6309491] as has the Town of Massena [see http://ecode360.com/11058454]. 

In addition, General Business Law §899-aa, the Security Breach and Notification Act, addresses situations resulting from persons without valid authorization having acquired private information stored on an business  entity's computer..

Also relevant is §208(8) of the State Technology Law captioned “Notification; person without valid authorization has acquired private information,” requiring counties, cities, towns, villages and other governmental entities to adopt a computer security “breach notification policy.”

In addition, §308.1 of the act provides as follows with respect to personal privacy protection:

"Any information reported to the electronic facilitator by a government entity in connection with the authorization of an electronic signature shall continue to be withheld from public disclosure if such information was withheld from public disclosure by such government entity. Electronic records shall be considered and treated as any other records for the purposes of the freedom of information law as set forth in article six of the public officers law and the personal privacy protection law as set forth in article six-A of the public officers law.

“2. A person or an entity that acts as an authenticator of electronic signatures shall not disclose to a third party any personal information reported to it by the electronic signatory other than the information necessary to authenticate the signature unless the disclosure is made pursuant to a court order or statute, or if the information or data is used solely for statistical purposes in aggregate form. For purposes of this section, "personal information" shall mean data that identifies a specific person, including but not limited to home and work addresses, telephone number, e-mail address, social security number, birthdate, gender, marital status, mother's maiden name, and health data.”
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