Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed

Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed

OATH Index #1804/14

The employee had been charged with (1) violating department rules, (2) negligently operated his employer’s vehicle and (3) displaying "vulgar decals" in the department’s truck. Finding that the evidence did not support charges (1) and (2), OATH Administrative Law Judge recommended the department dismiss those charges filed against the employee.

However, Judge Addison sustained the charge filed against the employee that alleged that he had pinned vulgar decals to the interior of the truck and recommended that he be suspended for 15 days without pay. Noting that the employee had served a 30-day pre-hearing suspension without pay, the ALJ then recommended that [1] the employee be credited with "time served" and [2] that he be reimbursed 15-days pay of the 30-days of his pre-hearing suspension without pay.

Civil Service Law §75.3 provides, in pertinent part, that “that the time during which an officer or employee is suspended without pay may be considered as part of the penalty.”

In Bollin v City of Kingston, 89 A.D.2d 658, the penalty imposed, two months suspension without pay, in addition to the 30-day suspension when the charges were preferred, and a fine of $100, was held neither harsh nor excessive. Bollin had been charged with, and found guilty of, [1] incompetence by allowing his bus to run out of gas on five separate occasions and [2] misconduct for smoking while operating a bus.

In general, Courts have viewed the penalties authorized by Civil Service Law §75 as mutually exclusive. In Bollin, in addition to the 30-day suspension without pay during the pendency of charges, which is not viewed as a "penalty," the employee was both suspended without pay and fined. It may be that this reflects two different penalties for the two different charges filed against him, incompetence and misconduct, which were consolidated for purposes of appeal.

Further, in Figueroa v NYS Thruway Authority, 251 A.D.2d 773, the court held that multiple §75 thirty-day suspensions without pay were permitted where additional disciplinary charges were subsequently filed against the employee
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An individual’s domicile and residence distinguished

An individual’s domicile and residence distinguished
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department*

A person may have only one domicile at a time but he or she may have many residences simultaneously.

From time to time, however, the term “residence” is used as a substitute for the term “domicile.” This was demonstrated in Weiss v Teachout.

Seeking to invalidate the petition designating Zephyr R. Teachout as a candidate for the office of governor, Harris Weiss alleged that Teachout did not meet the constitutional residency requirements for the office of governor.

Article IV, §2 of the State Constitution, in pertinent part, requires that an individual seeking election to the office of governor “shall have been five years next preceding the election a resident of this state” while Election Law §1-104.22 states that the term residence “shall be deemed to mean that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return."

The Appellate Division explained that as used in the Election Law, and presumably in the State Constitution, the term ‘residence' is being used to denote an individual's legal status that is more accurately described as his or her “domicile."

Crucial to the determination as to whether an individual satisfies the constitutional “residency” requirement, said the court, is that the individual manifests an intent [to reside there], coupled with physical presence without any aura of sham [see People v. O'Hara, 96 NY2d 378].**

The Appellate Division sustained Supreme Court's determination that the Weiss failed demonstrate that Teachout did not meet the constitutional residency requirements for the office of governor is warranted by the facts.

The Appellate Division held that although both the Constitution and the Election Law use the “residence,” it was five years as a “domiciliary” of New York State that was required to satisfy such “residence” requirements and the fact that Teachout had has resided in several different residences within the City of New York during the relevant time period, while maintaining close connections to her childhood domicile of Vermont, constituted “nothing more than an ambiguity in the residency calculus.”

* See, also, Jones v Blake, 2014 NY Slip Op 05919, Appellate Division, First Department, an appeal arising “out of a special proceeding in which petitioner sought to establish that respondent did not satisfy the residency requirements for the public office of Member of the Assembly.”

** In Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), [Not selected for publication in the Official Reports], Supreme Court Judge Dennis M. Kehoe held the where the record revealed that the individual elected to public office [1] rented the upstairs apartment from his wife four days before the election, for an annual rental of $1.00, for a period which extends through December 31, 2012, the date his term as Mayor expires; [2] that the furnishings of the apartment consist of one bed with a crate used as a night table, had no appliances such as a refrigerator, stove, or microwave - and no television or computer; [3] that he did not move his personal belongings to the apartment; and [4] that he regularly ate dinner with his wife and children at the residence in the Town of Sodus; and spent the majority of his nights there, he must conclude that the Allen’s attempt to establish a residence in the Village of Sodus was contrived for the purpose of making him eligible to run for the office of Mayor.” Judge Kehoe noted that he was aware of the fact that “his decision will result in an immediate vacancy in the office of the Mayor of Sodus Village, but this outcome is mandated by the Public Officers Law §30(1)(d), unless otherwise stayed by a higher court.”

The Weiss decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_05888.htm

The Village of Sodus decision is posted on the Internet at:

http://www.nycourts.gov/reporter/pdfs/2011/2011_31035.pdf

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Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation

Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation

Appeal of Arnold Goldberg, Decisions of the Commissioner of Education, Decision No. 16,635

Arnold Goldberg held a tenured appointment as Director of Personnel in the tenure area of  "Director of Personnel." The School Board subsequently created a new position, Assistant Superintendent for Human Resources and Professional Development, and appointed Dr. Marlene Zakierski to fill this new position  effective August 1, 2005. On August 16, 2005, the Director of Personnel position was abolished and Mr. Goldberg was "excessed" effective August 26, 2005, and his name was placed on a “preferred eligible list “

Mr. Goldberg challenged the failure of the School District to appoint him to the newly created Assistant Superintendent position.** The then Commissioner of Education issued a decision dismissing the appeal, holding that Mr. Goldberg was not entitled to an appointment to the Assistant Superintendent position.  Subsequently Supreme Court vacated the Commissioner’s decision and remanded the matter to the School District for a hearing pursuant to Education Law §3013 on the sole issue of whether or not the two positions were similar.

Following five days of hearing, the School Board issued a decision finding that “the newly created position of Assistant Superintendent for Human Resources and Professional Development was not similar to [Mr. Goldberg’s] position of Director of Personnel,” whereupon Mr. Goldberg initiated a second CPLR Article 78 proceeding against the School District seeking to set aside the School District’s decision.  Supreme Court, however, ruled that the Commissioner of Education has primary jurisdiction over this matter and Mr. Goldberg initiated the instant appeal with the Commissioner of Education.

Mr. Goldberg asserted that more than 50 percent of the duties he performed as Director of Personnel were being performed by the incumbent of the newly created position of Assistant Superintendent* and thus, he argued, he should have been appointed to the position pursuant to Education Law §3013 and asked that the Commissioner set aside the School District’s decision that the two position were not similar “as arbitrary and capricious” and direct the School District to appoint him to the Assistant Superintendent position with back pay, seniority and all other benefits. 

The Commissioner ruled that Mr. Goldberg’s appeal concerning “the district’s failure to recall him from the preferred eligibility list” had to be dismissed for failure to join a necessary party. The Commissioner noted that although Mr. Goldberg named “Ronald O. Grotsky” as a respondent in the caption of his appeal, the record indicates that Marlene Zakierski had been appointed by School Board to the Assistant Superintendent position. As Dr.Zakierski’s rights could be adversely affected were the decision in this appeal in Mr. Goldberg’s favor because “she was not named or served with a notice of petition or petition,” he “must dismiss the appeal for failure to join necessary parties.”

Further, the Commissioner said that Mr. Goldberg failed to meet his burden of demonstrating that he was entitled to the Assistant Superintendent position.

In order for an individual to be entitled to appointment to a vacant position from a preferred list, explained the Commissioner, the position must be similar to that of his or her former position. The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by individual in his or her former position and the two positions must be in the same tenure area.

Based on the record before him, the Commissioner said that he found that the two positions were in different tenure areas, noting that the School Board had approved the probationary appointment of an individual to an Assistant Superintendent position in the tenure area of “Assistant Superintendent of Human Resources and Professional Development" while Mr. Goldberg had been granted tenure in the administrative tenure area of “Director of Personnel.”

The Commissioner also noted that “even if the two positions were in the same tenure area, the appeal must be dismissed because a review of the job descriptions for both positions and the record before him “reveals that, within the meaning of Education Law §2510(3), [Mr. Goldberg’s] position as Director of Personnel was not similar to the position of Assistant Superintendent for Human Resources and Professional Development.”

The Commissioner then dismissed Mr. Goldberg's appeal.

* Mr. Goldberg also asserted that the hearing provided by the School Board did not meet the due process requirements of the Fifth and Fourteenth Amendments of the United States Constitution and, in addition, he alleged several violations of the Open Meetings Law and the Freedom of Information Law. The Commissioner rejected Mr. Goldberg’s due process claims and with respect to his Open Meetings Law and Freedom of Information claims noted that New York State Supreme Court has exclusive jurisdiction with respect to adjudicating such claims and any “alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

** The test applied is whether 50% or more of the duties being performed by the incumbent of the newly created position were previously being performed by the incumbent of the position that had been abolished not whether 50% or more of the duties of the abolished position were being performed by the incumbent of the new position. For example, the incumbent of the new position could have assumed all of the duties of the abolished position yet those duties could be less than 50% of all of the duties assigned to the incumbent of the new position.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d166351

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