An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee
2015 NY Slip Op 01746, Appellate Division, First Department

An individual [Trainee] was accepted into a seven-week pre-service training period. When Trainee was terminated in the midst of a seven-week pre-service training period he filed an Article 78 petition seeking a court order annulling the employer’s determination to dismiss him from the traineeship.. Supreme Court granted the employer’s motion to dismiss Trainee’s petition and Trainee appealed.

Sustaining the Supreme Court’s decision, the Appellate Division said that Trainee had no greater rights than those of probationary employees, and a probationary employee "may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."*

The court explained that the record demonstrates that trainee did not have a cause of action as the evidence submitted with the petition and cross motion established that during Trainee’s “pre-service training period, several complaints had been made about [Trainee’s] performance, resulting in the issuance of a performance concern letter.”

The Appellate Division noted that Trainee “had been admonished multiple times for using his cell phone in the classroom and improperly leaving the classroom when students were present” and, in addition, Trainee was also directed by a supervisor to refrain from contacting another teacher who had expressed concerns about how he had previously spoken to her.

Under these circumstances, said the court, where there is evidence of multiple instances of unsatisfactory performance during a short seven-week period, the discharge was made in good faith.

* N. B. Should the appointing authority elected to terminate a probationary employee prior to his or her completing the minimum period of his or her probationary period, the individual is entitled to notice and hearing in accordance with the controlling disciplinary procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01746.htm

Employee’s refusal to cooperate with a police investigation found to constitute misconduct

Employee’s refusal to cooperate with a police investigation found to constitute misconduct
2015 NY Slip Op 01740, Appellate Division, First Department

The Appellate Division confirmed the determination of New York City’s Police Commissioner adopting the findings of the disciplinary Hearing Officer that a New York City police officer had engaged in misconduct, and imposing a penalty of forfeiture of 30 vacation days, a 30-day suspension, without pay, and a one-year dismissal probation period.

The court said that there was substantial evidence to support the Hearing Officer’s findings that the police officer had refused to cooperate with a Port Authority Police Department (PAPD) investigation, and that he gave vague and nonresponsive answers at a subsequent interview by New York City Police Department officials.

Citing Kelly v Safir, 96 NY2d 32, the Appellate Division said that “The imposed penalty does not shock our sense of fairness.”

Similarly, a New York City Office of Administrative Trials and Hearings' administrative law judge held that an employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview [NYC Health and Hospital Corporation v Jones, OATH Index #1100/10, posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1100.pdf].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01740.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Using evidence of alleged wrongdoing obtained by means of global-positioning equipment

Using evidence of alleged wrongdoing obtained by means of global-positioning equipment
2015 NY Slip Op 01735, Appellate Division, First Department

The New York City Taxi and Limousine Commission [TLC] revoked a taxi driver’s license after finding that the driver “on numerous occasions, charged passengers a rate that was double the legal rate.” The Appellate Division sustained the Commissions action.

The court noted that although the driver did not exhaust his administrative remedies because he failed to appeal Chairperson's final decision to revoke petitioner's license, he contended that the data from a global-positioning-system (GPS) device installed by the TLC as part of its Taxi Technology System without a court order was obtained in violation of the New York State Constitution and the United States Constitution.

Even had the driver exhausted his administrative remedies, said the Appellate Division, he would not prevail in his challenge to the TLC’s installation and use of the device, explaining that “Even if the installation of the device constituted a ‘search’ within the meaning of both Constitutions, the search was reasonable under the special needs exception to the warrant requirement.”

In Matter of Cunningham, 21 NY3d 515, the Court of Appeals considered the use of a Global Positioning System device to gather evidence of a state employee’s alleged misconduct [see http://publicpersonnellaw.blogspot.com/2013/06/using-global-positioning-system-device.html]. 

In Cunningham, a State agency, suspecting that a State employee was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile without the employee’s knowledge. Citing People v Weaver (12 NY3d 433) and United States v Jones (132 S Ct 945}, the Court of Appeals ruled that the State agency's action was a search within the meaning of the State and Federal Constitutions and “did not require a warrant” but “on the facts of this case such surveillance was  unreasonable”

The decision TLC decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01735.htm

The Cunningham decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04838.htm

The doctrine of estoppel cannot be invoked to attain eligibility for a retirement benefit if the individual does not qualify for the benefit claimed

The Doctrine of Estoppel cannot be invoked to attain eligibility for a retirement benefit if the individual does not qualify for the benefit claimed

2015 NY Slip Op 01222, Appellate Division, Third Department

A member [Retiree] of the New York State Employees Retirement System accepted an incentive for early retirement in 2010, with an effective date of retirement of May 31, 2010. More than one and one-half years later Retiree filed an application for disability retirement benefits, asserting that no one at his place of work or the Retirement System informed him about the possible availability of disability retirement benefits when he filed for "service retirement."

A Hearing Officer concluded that Retiree’s application for disability retirement benefits was not timely filed. The Comptroller adopted the findings and conclusions of the Hearing Officer and Retiree sued, contending that his application should be deemed timely — or the Retirement System should be estopped from finding it untimely — because the Retirement System failed to provide him with a summary plan description in accordance with Retirement and Social Security Law §153(3),

The Appellate Division affirmed the Comptroller’s decision, explaining:

1. The Comptroller has exclusive authority to determine all applications for retirement benefits which determination must be sustained “if it is not unreasonable" and "if the underlying factual findings are supported by substantial evidence."

2. An application for disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] Article 15 must be filed "within three months from the last date the member was being paid on the payroll."

3. It is undisputed that Retiree’s application for disability benefits was filed over 1½ years after his removal from the payroll on May 31, 2010’

Accordingly, said the court, “substantial evidence supports the determination that [Retiree’s] application was untimely.”

The Appellate Division also rejected Retiree’s argument that his application should be deemed timely — or the Retirement System should be estopped from finding it untimely — because the Retirement System failed to provide him with a summary plan description in accordance with RSSL §153(3) in view of the fact that the Comptroller determined that RSSL §155 “dictates that the failure to provide the plan did not ‘create, revive, extend, or otherwise affect the entitlement of a member, retired member, or a beneficiary to any retirement benefit.’"

Indeed, noted the court, even if the Retirement System provided Retiree with incomplete or inaccurate information, "[t]he doctrine of estoppel will not provide eligibility where, by statute, the individual does not qualify” for the retirement benefit claimed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01222.htm

Terminating the services of a probationary employee

A probationary employee is not entitled to a statement of the reason for his or her termination of his or her probationary employment

Johnson v County of Orange, 2016 NY Slip Op 02821, Appellate Division, Second Department

Supreme Court granted the Orange County Sheriff’s motion to dismiss Janine Johnson Article 78 petition challenging her termination from her position while she was still serving her probationary period “for failure to state a cause of action.” Johnson filed a “notice of appeal” that the Appellate Division deemed to be an application for leave to appeal, granted the “application” and then affirmed the Supreme Court’s ruling with costs.

The Appellate Division explained that a probationary employee “may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

Case law, however, indicates that a probationary employee may be terminated at any time after the completing his or her minimum period of probation prior to completing his or her maximum period of probation [see Gray v Bronx Developmental Center, 65 NY2d 904] unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position [see McKee v. Jackson, 152 AD2d 54]. 

It should be noted that Rules promulgated by a civil service commission may set out procedures and standards that control the termination of a probationary employee. See, for example, 4 NYCRR 4.5(b) of the Rules of the State Civil Service Commission. Many local civil service commissions have adopted similar rules. 

In Scherbyn v Wayne-Finger Lakes BOCES, 77 NY2d 753, the Court of Appeals held that where the rules of a civil service commission specifically set out the reasons for which a probationary employee may be dismissed, the appointing authority's broad discretion with respect to terminating the services of probationers is subject to the limitations imposed by those standards. Further, a  department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law [Yan Ping Xu v New York City Dept. of Health & Mental Hygiene, 2014 NY Slip Op 07261, Appellate Division, First Department].

In this instance the Appellate Division found that the allegations in Johnson’s petition were insufficient to state a cause of action that her employment was terminated “in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.”

The Appellate Division also held that:

1. Johnson’s claim that the Orange County Sheriff's Office tolerated other relationships such as the one in which she was involved and did not have a formal anti-fraternization policy were inadequate to state a cause of action alleging that she was terminated in bad faith; and

2. Johnson was not entitled to a statement of the reason for the termination of her probationary employment, citing York v McGuire, 63 NY2d 760.

Accordingly, said the court, Supreme Court properly granted the appointing authority’s motion to dismiss Johnson’s petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02821.htm

A public employee’s speech as a citizen rather than as an employee protected by the First Amendment

A public employee’s speech as a citizen rather than as an employee protected by the First Amendment

Matthews v City of New York, USCA, 2^nd Circuit, Civ. 13-2915

New York City Police Officer Craig Matthews sued the City of New York alleging that the City had retaliated against him for speaking to his commanding officers about an arrest quota policy at his precinct.*

A United States District Court judge granted the City’s motion for summary judgment, holding that Matthews had spoken as a public employee and not as a citizen and thus his speech was not protected by the First Amendment.

Citing Cox v Warwick Valley Central School District, 654 F3d 267, the 2nd Circuit Court of Appeals said that the test it applied in cases in which a plaintiff asserts a First Amendment retaliation claim requires the plaintiff to establish that:

(1) his or her speech or conduct was protected by the First Amendment;

(2) the defendant took an adverse action against him or her; and

(3) there was a causal connection between this adverse action and the protected speech.

The Circuit Court of Appeals vacated the district court’s ruling, explaining that “because Matthews’s [sic] comments on precinct policy did not fall within his official duties and because he elected a channel with a civilian analogue to pursue his complaint, he spoke as a citizen.” The court then remanded the matter for further proceeding “consistent with this opinion.”

* Although not relevant to this appeal, which was limited to the narrow question of whether Matthews spoke as a citizen or as a public employee, the alleged acts of retaliation consisted of “punitive assignments, denial of overtime and leave, separation from his career-long partner, humiliating treatment by supervisors, and negative performance evaluations.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/94c58cb0-319d-4fa2-8743-a6327b4f46f0/1/doc/13-2915_opn.pdf#xml=http://www.ca2.usc

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 26, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 26, 2015

Click on text highlighted in color  to access the full report

On February 26, 2015 New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued: 

Department of Health (DOH): Medicaid Program: Medicaid Claims Processing Activity April 1, 2013 Through September 30, 2013 (2013-S-12)
DOH’s eMedNY computer system processes Medicaid claims submitted by providers for services rendered to Medicaid-eligible recipients, and it generates payments to reimburse the providers for their claims. During the six-month period ended Sept. 30, 2013, auditors identified over $5.6 million in inappropriate or questionable Medicaid payments. By the end of the audit fieldwork, auditors recovered about $2.3 million of the overpayments identified.

Department of Labor (DOL): Assessment and Collection of Selected Fees and Penalties (Follow-Up) (2014-F-19)
An initial report issued in May 2013, determined DOL had not collected about $3.8 million in fees and penalties for the Public Work Enforcement Fund, the boiler inspection program and the asbestos abatement program. Auditors also determined DOL does not have accurate records to show who is required to pay boiler inspection and asbestos-related project fees. In a follow-up, auditors found DOL has made substantial progress in addressing the issues identified in the initial report.

Metropolitan Transportation Authority (MTA): Headquarters and Capital Construction Travel and Entertainment Expenses (2013-S-47)
Auditors found MTA Headquarters and MTA Capital Construction have opportunities to strengthen controls over travel and entertainment, which could help reduce certain costs. For example, MTAHQ and MTACC could utilize federal travel guidelines (established by the U.S. General Services Administration and the U.S. Department of State) pertaining to maximum allowable lodging rates. Auditors found certain travel transactions lacked proper prior approvals, statements of purpose, or other required supporting travel documentation. Business office staff did not consistently ensure that all required approvals and supporting documents were included with employees’ travel expense reports.

New York City Department of Housing Preservation and Development (NYC HPD): Housing Preferences for Veterans (2014-F-14)
An initial report issued in June 2012 found that although the state Legislature had extended the right of preference for housing to many more veterans, few actually benefited due to inaction or disregard by housing companies and lax enforcement by NYC HPD. Auditors found two housing companies in Manhattan (Hamilton House and Clinton Towers) filled vacant apartments with non-veterans even though veterans had been identified on their waiting lists. In a follow-up report, auditors found NYC HPD has made progress in addressing the issues identified in the initial report and has implemented all three prior recommendations.

Office of Information Technology Services (OITS):  Security and Effectiveness of Division of Criminal Justice Services’ (DCJS) Core Systems (2014-S-24)
Auditors found that OITS does not have an established monitoring and oversight process for user access management of DCJS systems and is not operating in compliance with state cyber security policies. OITS does not have established policies and procedures for backup of key DCJS systems. Also, ITS does not have an active regional backup site, and DCJS systems are at risk for total data loss in the event of a regional disaster. Auditors also found OITS does not have an established monitoring and oversight process for software or operating systems and changes made to these systems.

Office of Information Technology Services (OITS): Security and Effectiveness of the Department of Labor’s Unemployment Insurance System (2014-S9)
Auditors found the Unemployment Insurance System data has not yet been classified as required by the current security policy, even though 80 of the 83 unemployment insurance applications in use by the Labor Department have been deemed mission critical. The security policy indicates that all agency information should be classified on an ongoing basis based on its confidentiality, integrity, and availability. Almost two years after the transition of services, OITS still does not have a service level agreement in place governing responsibilities and services provided to human services agencies. Auditors also found that although mainframe programming changes are logged, there is no indication of when these changes have been implemented, thereby reducing accountability.

Office of Information Technology Services (OITS): Security and Effectiveness of Department of Motor Vehicles’ (DMV) Licensing and Registration Systems (2013-S-58)
Auditors found OITS and DMV are not in compliance with the payment card industry data security standards that govern the systems that process credit card transactions. Since January 2012, neither agency has completed and submitted a required self-assessment questionnaire or third-party compliance report, which are necessary to ensure that all risks have been properly identified and mitigated. Non-compliance also exposes the state to other risks ranging from extensive fines or penalties to business disruption due to cancelled accounts and the inability to accept credit card payments. OITS does not have an established monitoring and oversight process for user access management of DMV systems and is not operating in compliance with state cybersecurity policies.

The U.S. Court of Appeals, Second Circuitʹs tests for sovereign immunity

The U.S. Court of Appeals Second Circuitʹs tests for sovereign immunity

Leitner v Westchester Community College, USCA, 2^nd Circuit, 14-1042-cv

An adjunct professor employed by the Westchester Community College was terminated for allegedly making offensive comments in class. She sued, contending that the Community College violated her state and federal constitutional rights.

The U.S. Circuit Court of Appeals affirmed a federal district court’s denial of the Community College’s motion to dismiss the professor’s complaint on grounds that the college defendants were not entitled to sovereign immunity under the Eleventh Amendment.

In a ruling that instructive in that it sets out the six factors considered, and the two-part test applied, by the Second Circuit when addressing a governmental entity’s claim of sovereign immunity, the court said that in this instance:

(1) a finding of sovereign immunity would not serve the twin aims of the Eleventh Amendment, as immunity would not further the states interest in preserving its treasury, nor would it protect the integrity of the state; and

(2) Westchester Community College is not an arm of the state entitled to sovereign immunity under the Eleventh Amendment.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5ea5b6b9-b3ce-46b7-82a9-7e0e896784eb/1/doc/14-1042_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5ea5b6b9-b3ce-46b7-82a9-7e0e896784eb/1/hilite/

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 25, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 25, 2015

Click on text highlighted in color  to access the full report

Town of Croghan – Financial Management (Lewis County)
The board adopted budgets that relied too heavily on fund balance as a financing source and appropriated more fund balance than it had available. The board has not developed a multiyear financial plan to address long-term priorities or a policy to determine the amount of fund balance to maintain.
Town of Dickinson – Fiscal Oversight (Franklin County)
The board did not effectively oversee the town’s financial operations. The supervisor did not provide the board with adequate monthly financial reports. In addition, the town’s procedures for auditing claims were not in compliance with town law.
Johnstown Public Library – Cash Receipts (Fulton County)
Auditors were unable to determine if all collections were recorded and deposited in a timely manner and intact. This was because library officials have not established formal policies or procedures for handling and recording cash receipts.
Town of Kiantone – Town Clerk (Chautauqua County)
The town clerk did not deposit all money collected. As of June 23, 2014, the clerk had a shortage totaling $3,147. In addition, the clerk did not record, deposit or remit money collected in an accurate and timely manner. Auditors also found the board did not provide adequate oversight of the clerk’s operations.
Town of Lewisboro – Financial Condition (Westchester County)
The town’s general, sewer and water funds all had a deficit fund balance at some point from 2009 through 2013. While officials were able to eliminate accumulated deficits in these funds by the end of 2013, they have not developed a multiyear financial plan to help monitor operations and guard against future operating deficits.
Village of Mill Neck – Financial Management (Nassau County)  The board has not established adequate policies and procedures or provided guidance on maintaining a reasonable level of fund balance. As a result, the village has accumulated excessive fund balance in its general fund that resulted, at least in part, from unrealistic budget estimates.
Saratoga Springs Public Library – Claims Processing (Saratoga County)
Internal controls over the claims audit process were not designed appropriately. For example, not all claims included signatures from the director or department heads to indicate that goods and services were actually received. In addition, the board assigned the responsibility to audit and approve all claims for payment to the president.
Town of Sweden – Justice Court (Monroe County)
The justices do not provide adequate oversight of court operations to ensure the accurate and complete collection, deposit, recording and reporting of court moneys in a timely manner. The justices have not adequately segregated the duties of the clerks and do not regularly review accounting records, bank statements, or monthly reconciliations and accountability analyses.
Town of Tyrone – Financial Management (Schuyler County)
Town officials have not developed multiyear financial plans, policies, or procedures to govern budgeting practices or the level of unexpended surplus funds to maintain. The board adopted budgets that were not based on sound and realistic estimates of revenues and expenditures. Poor budgeting, along with overspending in the highway fund, has caused cash flow problems, which required inter-fund transfers and advances from the general fund to pay bills over the last several years.
Town of West Union – Board Oversight and Cash Receipts and Disbursements (Steuben County)
The board has not provided adequate oversight to safeguard town assets. Specifically, the board did not adopt structurally balanced budgets. For fiscal years 2011 through 2013, the town had excessive fund balances in both the general fund and highway fund. In addition, the board did not audit the books and records of any of the town officers and employees that handled cash.

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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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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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