Refusing to answer work-related questions in the course of an investigation

Refusing to answer work-related questions in the course of an investigation
2015 NY Slip Op 01573, Appellate Division, First Department

The question of compelling a public officer or employee to testify or risk termination was considered by the Court of Appeals in Matt v LaRocca, 71 NY2d 154, cert denied 486 US 1007. In the Matt case the Court of Appeals held that when a public employee is threatened with termination if he or she refuses to testify under oath, the testimony given by the individual is "cloaked with use immunity," noting that "when a public employee is compelled to answer questions or face removal upon refusing to do so, the responses are cloaked with immunity automatically, and neither the compelled statements nor their fruits may thereafter be used against the employee in a subsequent criminal prosecution."

An attorney serving with the Department of Housing Preservation and Development (HPD) was terminated from his position. The administrative law judge, after a disciplinary hearing, had found the attorney guilty of misconduct and recommended the individual be terminated from employment. The appointing authority adopted the findings and recommendation of the administrative law judge and dismissed the attorney.

The attorney appealed but the Appellate Division unanimously affirmed the appointing authority’s determination. The penalty imposed, said the court, “does not shock our sense of fairness” given, among other things, the attorney’s refusal to appear for duly scheduled investigatory interviews even after receiving use immunity.

The court explained that substantial evidence supported the determination that attorney had engaged in misconduct by representing a tenant in litigation against the New York City Housing Authority while employed as an attorney for HPD, by “using [HPD’s] resources in the course of that representation, and by refusing to comply with directives to appear for investigatory interviews.

The Appellate Division said that although the attorney “is correct that a violation of New York City Charter §2604(b)(7) was not established given the absence of any evidence that he received any compensation for representing the tenant ... there was substantial evidence that [the attorney] violated other laws and orders in connection with that representation, including New York City Charter 2604(b)(2) and HPD Commissioner Order 2009-1(4)(a).”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01573.htm

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New Deputy Chief Investment Officer named to the New York State Common Retirement Fund

New Deputy Chief Investment Officer named to the New York State Common Retirement Fund

Source: Office of the State Comptroller

On February 24, 2015 New York State Comptroller Thomas P. DiNapoli announced the appointment of Anastasia Titarchuk to the position of Deputy Chief Investment Officer for the $181.7 billion New York State Common Retirement Fund. Ms. Titarchuk previously served the Fund as Director of Absolute Return Strategies.

Ms. Titarchuk has 17 years of experience across diverse sectors of the financial services industry, including traditional equity and fixed income markets, as well as derivatives and alternatives. Prior to joining the Fund in 2011, she served as Director of International Derivatives Sales at Bank of America and has held important roles with Lehman Brothers/Barclays Capital and JPMorgan. Titarchuk graduated Summa Cum Laude from Yale University with a B.S. in Applied Mathematics.

Letter sent to Acting State Commissioner of Education Berlin concerning teacher evaluation

Letter sent to Acting State Commissioner of Education Berlin concerning teacher evaluation

Source: Office of the Governor

On February 23, 2015 Director of State Operations Jim Malatras sent a letter to State Education Department Acting Commissioner Elizabeth R. Berlin regarding the teacher evaluation process.

The letter can be viewed on the Internet at:

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Maltras_Letter_To_Berlin.pdf

Determining seniority of probationary employees in the event of a layoff

Determining seniority of probationary employees in the event of a layoff

Kenny v Rockland County Supt. of Highways, 2015 NY Slip Op 01453, Appellate Division, Second Department

Kevin J. Kenny was appointed to the position of Engineer II [Field] by the Rockland County Highway Department in April 2001. In August 2005, after serving a 26-week probationary period, he obtained tenure in that title as Engineer II [Field].

In December 2011 Kenny’s position was reclassified to an Engineer III position and in January 2012, Kenny filed an application for the Engineer III position and was nominated for a noncompetitive promotion* to the title of Engineer III. Kenny received a salary increase commensurate with his promotion to Engineer III and his appointment was described as "permanent, but serving probationary period."

In late June 2012, Kenny was told that a number of positions had been abolished by the County Legislature and that, although his position was not among those abolished, another employee with permanent status had greater rights to the Engineer III position than he had. On July 27, 2012, Kenny was terminated from his employment.

Contending that his appointment to the Engineer III position was a reclassification of his job title, not a promotion, thereby not requiring any new probationary period, Kenny challenged the Department’s determination. The Department, on the other hand, argued that Kenny’s appointment to the Engineer III position “constituted both a reclassification and a promotion” and that Kenny’s termination complied with applicable law.** After conducting a hearing, the Supreme Court granted Kenny’s petition, annulled the Department's determination, and reinstated the him to the position of Engineer II (Field) with back pay and benefits.

On appeal the Appellate Division reversed the Supreme Court’s ruling, on the law, and dismissed Kenny’s petition on the merits.

The Appellate Division explained that “Where, as here, an existing civil service position is reclassified, such reclassification is governed by Civil Service Law §22”***and, contrary to the Supreme Court's determination, the evidence at the hearing established that the procedural requirements for reclassifying the [Kenny’s] position from Engineer II (Field) to Engineer III were properly met.

Further, said the court, “contrary to [Kenny’s] contention, the reclassification also constituted a promotion, as it encompassed certain out-of-title duties which he had begun to perform after having received his engineering license in 2009 ... and resulted in a salary increase from a field position (Engineer II) to a management position (Engineer III), and a change in union representation to the Rockland Association of Management.”

The Appellate Division’s conclusion: the determination terminating Kenny’s employment had a rational basis, complied with due process requirements, and was not arbitrary and capricious or an abuse of discretion.

* See Civil Service Law §52.7.

** N.B. §80.1 of the Civil Service Law that provides “Notwithstanding the provisions of this subdivision, however, upon the abolition or reduction of positions in the competitive class, incumbents holding the same or similar positions who have not completed their probationary service shall be suspended or demoted, as the case may be, before any permanent incumbents, and among such probationary employees the order of suspension or demotion shall be determined as if such employees were permanent incumbents [emphasis supplied]..

*** §22 of the Civil Service Law, in pertinent part, provides: “Any such new position shall be created or any such existing position reclassified only with the title approved and certified by the commission.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01453.htm

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Reforms to New York State’s ethics laws and rules proposed

Reforms to New York State’s ethics laws and rules proposed

Source: Office of the Governor

On Friday, February 20. 2015, Governor Andrew M. Cuomo outlined proposed reforms to New York State’s ethics laws and rules. The reforms are included in the 30 day amendments to the 2015-16 Executive Budge and address the following:

New Disclosure Requirements:

Public officials will be required to disclose all outside earned income they receive, from whom they receive it, the actual services performed to receive the income and whether there is any connection to the state government or the office that they hold and the work performed. Specifically:

All public officials must disclose the nature of each source of outside compensation in excess of $1,000.

No member or legislative employee may receive any kind of compensation in connection with a pending bill or resolution. Additionally, no legislator or legislative employee may refer individuals who are lobbying or advocating for a proposed or pending piece of legislation to firms or businesses where that legislator or legislative employee is also affiliated.

Lawyers, real estate agents and certain other professionals must provide a description of services for which they received compensation and the source of the compensation.

All public officials who personally provide services or work as a member or employee of a business or firm, and receives compensation in excess of $5,000 from a client/customer, must disclose information on that client/customer, the services rendered and whether the services were related to pending legislation governmental action.

Requirements to disclose outside income will apply to all legislative discretionary capital funding.

This proposal will also enhance penalties for failure to comply with the law.

Under current law, individuals cannot be prosecuted for filing false instruments under the Penal Law. Under the reforms advanced by the Governor, the officials can be prosecuted for not just filing a false financial disclosure statement but other crimes, as well. Further, the proposal would bar anyone convicted of a misdemeanor for failing to disclosure information under the financial disclosure law from holding public office for five years, or possibly up to 10 years if a misdemeanor plea was a plead down.

This proposal would also amend the Public Officers Law to expressly bar legislators from representing entities in legislative matters or referring such legislative matters to their firms. It would also amend the Lobbying Law to cover lobbying of municipalities that have a population of 5,000 or more – current law is set at municipalities with populations of 50,000 or more.

Pension Forfeiture

Public officials who are convicted of public corruption should not have taxpayers pay for their retirement. This proposal will amend the New York State Constitution (and related pension forfeiture law enacted in 2011) to apply New York’s pension forfeiture law to public officials who entered the retirement system before enactment of the pension forfeiture law in 2011.

Per Diem Reform

This proposal will end the practice of misusing per diems as backdoor salary supplements. Specifically, legislators and statewide elected officials would receive reimbursement only of reasonable and necessary travel expenses, for which receipts must be submitted, that are actually incurred while in the performance of their duties at the same rate as otherwise allowed state employees.

Further, the proposal would operationalize these reforms. The Office of State Comptroller will be prohibited from reimbursing expenses for a member of the legislature or statewide elected official until expanded disclosure provisions are met. Additionally, new caps are placed on the amount of reimbursement authorized under the law at the same level as the caps that currently apply to all other state employees. This proposal also repeals current law that gives great discretion to legislative leaders to broaden and increase per diems.

Campaign Finance Disclosure

The proposal will further expand the requirement for disclosing independent expenditures to include independent expenditures on communications made within 60 days before a general, or special election, and 30 days before a primary election to that reference a clearly identified client. This proposal also turns over enforcement of independent expenditures rules to new chief enforcement counsel.

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Professionals employed by educational institutions entitled to employment insurance benefits for periods between two successive academic years absent a reasonable assurance of continued employment

Professionals employed by educational institutions entitled to employment insurance benefits for periods between two successive academic years absent a reasonable assurance of continued employment

2015 NY Slip Op 00926, Appellate Division, Third Department

Labor Law §590(10) precludes professionals employed by educational institutions from receiving employment insurance benefits for periods between two successive academic years when the employer has provided them with a reasonable assurance of continued employment. This decision by the Appellate Division, Third Department, explores applying the requirement of giving an educator “a reasonable assurance of continued employment.”

An individual was employed as an adjunct lecturer [AL] by the Borough of Manhattan Community College [MCC] since 1991. During the 2010-2011 academic year, AL worked a total of 150 hours, 105 hours in the 2010 fall semester and 45 hours in the 2011 spring semester. At the close of the 2010-2011 academic year, he received a letter from MCC offering to reappoint him to the same position for the 2011 fall and 2012 spring semesters, "subject to sufficiency of enrollment, financial availability and curriculum need."

Shortly after receiving this letter, MCC informed AL that he would be assigned to work 45 hours during the 2011 fall semester, but did not specify his assignment for the 2012 spring semester. AL applied for unemployment insurance benefits between the two academic years and was initially deemed ineligible on the basis that he had received a reasonable assurance of continued employment from the employer for the next academic year.

Following a hearing, an Administrative Law Judge overruled this determination and found that AL was eligible to receive benefits because MCC did not provide him with a reasonable assurance of continued employment within the meaning of Labor Law §590(10). The Unemployment Insurance Appeal Board affirmed the administrative law judge's ruling, and adhered to its decision upon reconsideration. MCC appealed the Board’s ruling.

The Appellate Division affirmed the Board’s ruling, explaining that although Labor Law §590(10) precludes professionals employed by educational institutions from receiving unemployment insurance benefits for periods between two successive academic years when the employer has provided them with a reasonable assurance of continued employment, "A reasonable assurance ... has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

Whether a claimant received a reasonable assurance of employment is a question of fact for the Board to resolve and its findings in this regard will be upheld if supported by substantial evidence

AL, said the court, had worked 150 hours during the 2010-2011 academic year, but was only offered 45 hours during the 2011-2012 academic year, limited to the 2011 fall semester. Further, MCC did not specify any hours for the 2012 spring semester either in its reappointment letter or notice advising AL of his assignment, and AL was offered significantly fewer hours during the 2011 fall semester than he had worked during the 2010 fall semester.

Given that the economic terms of the offer of reappointment during the 2011-2012 academic year were substantially less favorable than AL’s earnings during the 2010-2011 academic year, the Appellate Division held that substantial evidence supported the Board's finding that MCC did not provide AL with a reasonable assurance of continued employment under Labor Law §590(10).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00926.htm

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Probationary employee should be given timely notice of employer’s concerns that the employee’s performance placed continued employment at risk

Probationary employee should be given timely notice of employer’s concerns that the employee’s performance placed continued employment at risk

2015 NY Slip Op 01384, Appellate Division, First Department

A Supreme Court judge denied the petition filed by a guidance counselor [Counselor] seeking to annul her unsatisfactory annual performance rating for the 2011-2012 academic year and her termination of her probationary appointment as a guidance counselor.

The Appellate Division unanimously reversed the Supreme Court’s decision “on the law” and granted Counselor’s petition to annul the unsatisfactory rating, annulled the discontinuance of her probationary employment and remanded the matter to the school district for further proceedings.

The court explained that the record before it demonstrated deficiencies in the performance review process resulting in Counselor’s unsatisfactory rating (U-rating) for the school year 2011-2012 that were not merely technical, but undermined the integrity and fairness of the process.

The Appellate Division said that Counselor had received a satisfactory rating for the 2010-2011 school year. She did not receive the disciplinary letters underlying the U-rating for the 2011-2012 school year until June 20, 2012, at the end of the school year. Further, said the court, Counselor’s receipt of the disciplinary letters was contemporaneous with the issuance of the U-rating and the recommendation of discontinuance of her employment, which the court characterized as providing Counselor with “scant notice of school district’s concerns about [Counselor’s] performance and [thus she] had little opportunity to improve her performance.”

The decision also noted the court’s concern that “Even assuming [Counselor] was aware, via certain email and other correspondence, of the facts and circumstances underlying the respective disciplinary letters” given to her in June 2012,”there is no evidence to suggest that these communications, made in the ordinary course of [Counselor’s] employment as a probationary guidance counselor, would have alerted her that her year-end rating or her employment was at risk. “

The Appellate Division also noted that, considering the range of dates of the incidents referred to in the disciplinary letters, no explanation has been given for the school district’s failure to bring their concerns to Counselor’s attention before June 2012.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01384.htm