Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege

Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege

OATH Index No. 2614/14

A supervisor was served with disciplinary charges alleging she had included confidential information about agency clients in an email to supervisors that she had “e-mail copied” to her attorney.

Acknowledging that she had sent the email contained confidential information, she argued that she had not redacted the confidential information in the copy of her communication sent to her attorney because she considered her communications with her attorney to be privileged and confidential.

Oath Administrative Law Judge Ingrid M. Addison explained that the attorney-client privilege “enables one seeking legal advice to communicate with counsel ... secure in the knowledge that the contents of the exchange will not be revealed against the client’s wishes and that the communication over which privilege is asserted must have been made for the purpose of obtaining legal services and advice in the course of a professional relationship.

Judge Addison ruled that the e-mail the accused employee sent to her attorney was not privileged because it was directed to her supervisors, not her attorney, and was not an attempt to solicit legal advice of her attorney nor could it be interpreted as such. 

The ALJ found the supervisor was insubordinate when she walked out of a meeting with supervisors after being warned not to.

However Judge Addison dismissed a second charge alleging insubordination involving the supervisor's walking out of a meeting with her superior when another supervisor was called in to what was to be a “one-on-one” meeting with the superior.

The ALJ recommended that the supervisor be suspended without pay for 23 day, consisting of a 3-day suspension without for with respect to charges of insubordination related to her walking out of the meeting with a group of supervisors and a 20-day without pay for "wanton disregard" of the employer’s rules when she a copy of an e-mail to other supervisors that contained confidential agency information to her attorney.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2614.pdf

Failing to report for a medical examination

Failing to report for a medical examination

OATH Index No. 1402/14

A food service manager was found to have failed to report for scheduled medical examinations, that he was ordered to attend pursuant to §2568 of the Education Law, on three occasions.

Further, Administrative Law Judge Faye Lewis found that the manager had not been at work for more than two years.

After having had his disciplinary hearing postponed, the manager did not appear at his hearing scheduled for July 23, 2014.

On the day before the rescheduled trial date, his attorney requested another adjournment of the trial because the manager was in Ohio caring for his ailing mother and was unable to make other care taking arrangements.

The adjournment request was denied for lack of good cause when the manager declined to avail himself of the opportunity to participate at the hearing via telephone.

Other cases involving disciplinary action following an employee’s failure to report for a medical examination include Santiago v. Koehler, 155 A.D.2d 24, O'Neill v City of Schenectady, 194 AD2d 1044, and Decisions of the Commissioner of Education, Decision #13005.

Judge Lewis recommended termination of the food service manager’s employment.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1402.pdf
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Appealing the denial of an application for General Municipal Law §207-c disability benefits

Appealing the denial of an application for General Municipal Law §207-c disability benefits
Lowther v County of Rockland, 2014 NY Slip Op 08018, Appellate Division, Second Department

The Rockland County Sheriff denied Deputy Sheriff Charles Lowther’s application for disability benefits pursuant to General Municipal Law §207-c. A hearing officer confirmed the Sheriff’s determination and Lowther appealed the arbitrator’s ruling.

The Appellate Division sustained the arbitrator’s decision and dismissed Lowther ’s appeal “on the merits.”

As a procedural matter, the court first explained that it would treat this appeal as one that had been transferred here by the Supreme Court and would review the administrative determination de novo *

The standard of review in an administrative determination made after a hearing is limited to the Appellate Division's considering whether the determination was supported by substantial evidence. The test of whether an administrative determination is supported by substantial evidence is whether, on the record, a reasonable person might have made the findings and conclusions made by the administrative agency.

The Appellate Division then observed that in order to be eligible for disability benefits pursuant to General Municipal Law §207-c, a covered municipal employee must prove a direct causal relationship between his or her job duties and the resulting alleged illness or injury. In this instance the court found that the arbitrator's determination that Lowther was not entitled to benefits pursuant to General Municipal Law §207-c was supported by substantial evidence in the record.

In contrast, where an administrative body renders a determination without holding a hearing, the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis, which questions are to be initially addressed in Supreme Court.

* When a petition raises a question of whether an administrative determination made after a hearing is supported by substantial evidence, the proceeding should be transferred from the Supreme Court to the Appellate Division to address that issue.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08018.htm

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