Off-duty misconduct

Off-duty misconduct

OATH Index No. 1460/14

A research assistant [RA] was served with charges that alleged he was guilty of off-duty misconduct that resulted in his arrest among other misdeeds.  .

The employer presented certificates of conviction, which proved that RA committed the crimes of assault, resisting arrest, intentional property damage and public intoxication. 

OATH Administrative Law Judge Kevin F. Casey found RA could be disciplined for such off-duty conduct, which fundamentally conflicted with the agency's mission. In determining whether a criminal conviction for off-duty activity constitutes employee misconduct, Judge Casey said that “this tribunal has also looked to whether there is a sufficient nexus between the underlying act and the employee’s position.”*

The ALR also found that RA failed to notify the agency of his arrest and conviction and was absent without leave.

Also in the record was evidence showing that RA violated an order of protection in April 2013 and used disrespectful language in an email to an agency attorney

Judge Casey recommended that the employer terminate RA from employment, which recommendation was adopted by the appointing authority.

* In Tessiero v Bennett, 50 A.D.3d 1368, the Appellate Division sustained the termination of an employee found guilty of off-duty misconduct that brought discredit upon the employer.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1460.pdf

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Volunteer ambulance organization is not a “state actor” for the purposes of the Fourteenth Amendment

Volunteer ambulance organization held not a “state actor” for the purposes of the Fourteenth Amendment

Grogan v. Blooming Grove Volunteer Ambulance Corps, USCA, 2^nd Circuit, 13-656-cv

The Blooming Grove Volunteer Ambulance Corps [BGVAC], a private volunteer ambulance organization, submitted a motion in federal district court seeking summary judgment dismissing claims brought against it pursuant to 42 U.S.C. §1983 based on allegations that BCVAC had dismissed Lenore Grogan, one of its members, without a hearing.

Grogan alleged that various disciplinary charges levied against her by BGVAC, resulting in her suspension as an officer of BGVAC without a  hearing constituted “state action” and that such action violated her rights under the First and Fourteenth Amendments of the United States Constitution. The district court disagreed and granted BCVAC’s motion and dismissed Grogan’s complaint.

In her appeal to the Second Circuit Grogan contended that BGVAC was a “state actor” for the purposes of the Fourteenth Amendment as it had contracts with a municipality to provide emergency medical services. Accordingly, Grogan contended, BGVAC had violated her Constitutional rights when it issued disciplinary charges against her and then suspended her from the organization without a proper hearing.

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Grogan claimed that BGVAC’s conduct amounts to state action because: (1) the services BGVAC provides — emergency medical care and general ambulance services — are “traditionally exclusive public functions” that the State has delegated to BGVAC; and (2) the extensive State regulation and oversight under which BGVAC operates, coupled with BGVAC’s performance of a “municipally assumed” statutory function, so “entwines” BGVAC with the State that its actions are fairly attributable to the State.

The Circuit Court disagreed, sustaining the District Court’s determination that BGVAC’s conduct did not constitute state action.

The court explained that “Because the United States Constitution regulates only the Government, not private parties,” Grogan, who alleges that her “constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.” To demonstrate state action, said the court, a plaintiff must establish both that the alleged constitutional deprivation was caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation is a person who may fairly be said to be a state actor.’”

In this instance, said the court, there are two elements to consider:  

1. Has Grogan satisfied the “public function” test by demonstrating that there a “close nexus” between the challenged action and the State by showing that the private entity has exercised powers that are traditionally the exclusive prerogative of the State; and

2. Is the private entity so entwined with governmental policies, or is government entwined in the management or control of the private entity.

The court said that the statute authorizing the municipality to contract with BGVAC, New York Town Law §198(10-f), imposes no duty, obligation, or responsibility on New York towns to provide emergency medical services. Instead, the statute is entirely permissive, declaring that “the town board may . . . provide an emergency medical service, a general ambulance service, or a combination of such services . . . and to that end may . . . [c]ontract with one or more . . . organizations” to provide such services.”

Because the New York statutory scheme does not place an affirmative responsibility on towns or municipalities to provide ambulance services, those services cannot be considered “public functions.”

The Circuit Court futher explained that “even if we were to assume that the provision of emergency medical care and ambulance services constitutes state action under the public function theory (which we do not), that conclusion would be of no assistance to Grogan because the gravamen of her claims deals not with the performance of those ambulance services but instead with BGVAC’s employment decision to charge and suspend her.”

Concluding that Grogan” failed to demonstrate a sufficiently close nexus between the State or Town governmental entities and the disciplinary actions taken against her,” BGVAC’s actions cannot be fairly attributed to the State or the Town and, as a result, BGVAC cannot be held liable under  §1983,” the judgment of the District Court was affirmed.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/115153c9-61d9-4e7b-a767-d551a4ea8744/2/doc/13-656_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/115153c9-61d9-4e7b-a767-d551a4ea8744/2/hilite/
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Withdrawal of a resignation

Withdrawal of a resignation

2014 NY Slip Op 06883, Appellate Division, First Department

From time to time a former New York City Department of Education educator who was tenured in the position is reemployed in his or her former position. Does such a reemployment automatically result in the employee attaining tenure? 

The Appellate Division ruled that if a former tenured employee fails to comply with the regulations of the Chancellor of the New York City Department of Education governing the “withdrawal of a resignation and restoration to tenure,” the former employee’s tenure is not ipso facto*restored.

Rejecting a former New York City Principal’s contention that his tenure was constructively restored to him upon his reemployment by the New York Department of Education, the Appellate Division affirmed Supreme Court dismissal of his petition seeking a court order directing the Chancellor to reinstate him to his former position with tenure.

In a footnote to the decision, the Appellate Division said that “neither side has explained why petitioner could not still be restored to tenure if he now followed the procedures set out in the Chancellor's regulations.”

The relevant regulations appear to be Regulation C-205, subdivisions (28) and (29).

C-205(28) [Withdrawal of Resignation Generally] provides, in pertinent part, that “upon written request, a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation….”

C-205(29) [Withdrawal of Resignation within Five Years] addresses the reinstatement of former non-supervisory tenured staff and provides, in pertinent part, that in the event "a non-supervisory educator is reinstated more than five years after the effective date of his or her resignation," he or she will be required to serve a two-year probationary period.

With respect to employees subject to the Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

That said, 4 NYCRR 5.4, Reinstatement following resignation, provides, in pertinent part that a permanent employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant.

4 NYCRR 5.4 further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.”

Many local Civil Service Commissions have adopted similar rules.

* In other words, the individual does not attain tenure as a direct consequence of his or her reemployment.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2014/2014_06883.htm

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