ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

August 30, 2014

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August 27, 2014

Redacting the name of the accused employee from the decision following a disciplinary hearing


Redacting the name of the accused employee from the decision following a disciplinary hearing
OATH Index #1536/14

In the course of a disciplinary hearing the employee placed certain of his personal medical information in the hearing record. He then submitted a post-hearing request in which he asked OATH Administrative Law Judge Alessandra F. Zorgniotti “to remove his name from the [disciplinary] report and recommendation because it discusses his medical history.”

Judge Zorgniotti denied the employee’s request explaining that “Requests for redaction are generally denied where, as here, respondent placed private health matters in issue by way of a defense and the request was made after respondent placed medical documents in the record and testified about them at a hearing.”

The ALJ said that the employee’s medical information in the record concerned a medical condition, high blood pressure, which condition “did not carry much or any stigma,” and the employee had shared information about his medical condition with a number of his co-workers prior to the incident that resulted in disciplinary charges being filed against him.

Sometimes the request for “redaction” takes the form of a request for anonymity by substituting “Anonymous” for the name of the employee. Such a request was considered in connection with a §3020-a decision by the Commissioner of Education in Decisions of the Commissioner of Education #12993, an disciplinary appeal dealing with an alleged sexual relationship between a teacher and a student. The teacher asked that the Commissioner refer to her as Anonymous "to prevent public dissemination of her name and potentially injurious information the record."

The Commissioner said that there was no requirement in law that confidentiality be maintained in an appeal from a determination of a §3020-a hearing panel nor does the potential for publicity require that he substitute “Anonymous” for the teacher’s name. He said that "the large amount of publicity following the hearing does not require that [he] take any additional steps to prevent public dissemination of the teacher's name. Also denied was the request to prevent public dissemination of material in the record "to the extent that such information is subject to disclosure under the Freedom of Information Law."

In Anonymous v Mexico CSD, 162 Misc 2d 300, the issue concerned disclosure the name of an educator involved in a disciplinary action.In this instance disciplinary charges filed against a teacher were settled before a "formal final decision" was issued. In the settlement document the teacher admitted guilt to certain of the charges.

When the District indicated that it was about to disclose the terms of the settlement agreement in response to a Freedom of Information Law [FOIL] request, the teacher asked Supreme Court to restrain the District from releasing this information. Supreme Court ruled that the settlement agreement was not exempt from disclosure under FOIL and must be provided to those seeking a copy of the agreement.

However, there may be some aspects or statements set out in a disciplinary settlement agreement that could be suppressed or redacted without offending the Freedom of Information Law.

In LaRocca v Jericho UFSD, 220 AD2d 424, the settlement agreement contained references to charges that the accused individual denied or were not admitted, together with the names of certain teachers. The Appellate Division ruled that disclosure of those parts of the settlement agreement setting out charges that were denied or not admitted and, presumably, the names of "certain teachers" would constitute an unwarranted invasion of privacy within the meaning of FOIL.

Significantly, the Appellate Division said that "as a matter of public policy, the Board of Education cannot bargain away the public's right to access to public records." The court ruled that the settlement agreement or any part of it providing for confidentiality or purporting to deny the public access to the document "is unenforceable as against the pubic interest."
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August 26, 2014

Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.


Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.
2014 NY Slip Op 05719, Appellate Division, Fourth Department

A code enforcement officer [Officer] terminated from his position sued the Town alleging that his "termination was in retaliation for his refusal to perform" unauthorized functions and for his "act[ing] as a whistle-blower in reporting" those unauthorized directives "to the Town's outside attorney and others" in violation of Civil Service Law §75-b, the public employees' whistle blower statute.* Officer contended that he was terminated after he refused to issue a stop work order when directed to do so by the Supervisor because of his belief that he "could not legally" issue a stop work order to a developer working on a project because "the developer had all of the necessary permits."

One of the issues considered by the Appellate Division was the Town’s contention that Supreme Court incorrectly denied its motion to dismiss Officer’s retaliation claim “for failure to state a cause of action.”

The Appellate Division rejected the Town’s argument concerning the alleged retaliation, explaining that Civil Service Law §75-b “prevents a public employer from … terminating a public employee because the employee discloses to a governmental body information . . . which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action."

As to the meaning of "improper governmental action," the court said that the refers to "any action by a public employer or employee, or an agent" thereof, "which is undertaken in the performance of [his or her] official duties . . . and which is in violation of any federal, state, or local law, rule or regulation," citing § 75-b [2] [a]. In this action, said the court, the governmental bodies to which disclosure may be made included “a member of a town's legislature.”

Other requirements include that an employee, prior to disclosing the information, must have "made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and . . . provide[d] the appointing authority or designee a reasonable time to take appropriate action."

Significantly, the Appellate Division noted that Officer had adequately alleged that he reasonably believed that he had been directed to perform an unlawful act and Civil Service Law §75-b does not require an actual violation of the law for an employee to subsequently allege that he or she had been terminated because he or she acted as a “whistle blower.” In such a situation the employee need have had only "a reasonable belief of a possible violation" of the law.

Construing Officer’s complaint liberally, and accepting his factual allegations and all possible favorable inferences as true, the Appellate Division concluded that Officer had “adequately alleged that he believed that he had been ordered to commit an unlawful act and that his belief was reasonable.”

* Labor Law Article 20-c, Retaliatory Action By Employers, provides similar protections to employees in the private sector.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_05719.htm
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August 25, 2014

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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August 22, 2014

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:

The Village of Sodus decision is posted on the Internet at:
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August 21, 2014

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:

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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