Dismissed probationary employee has the burden of showing that his or termination was made in bad faith

Dismissed probationary employee has the burden of showing that his or termination was made in bad faith

2015 NY Slip Op 00896, Appellate Division, Second Department

The appointing authority terminated a probationary employee [Individual] and Individual filed a petition in Supreme Court seeking a review of his dismissal from the position. Supreme Court denied the petition and Individual appealed.

The Appellate Division said that "The employment of 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."*

In this instance, said the court, Individual failed to satisfy his burden of presenting competent proof that his termination was improper. Further, observed the Appellate Division, “The record demonstrates that the [Individual’s] performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith.”

Accordingly, ruled the Appellate Division, Supreme Court properly denied Individual’s CPLR Article 78 petition.

* Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00896.htm

Disciplinary penalty imposed modified in view of individual’s long service with the agency

Disciplinary penalty imposed modified in view of individual’s long service with the agency
2015 NY Slip Op 02008, Appellate Division, First Department

The Appellate Division, First Department, sustained the dismissal of a New York City police officer, [Officer] finding that substantial evidence supported the determination that Officer was guilty of numerous violations demonstrating his inability to conform his conduct to police department regulations.

The court rejected Officer’s contention that the hearing officer improperly relied on hearsay evidence in finding him guilty of engaging in a verbal and physical domestic dispute. Rather, said the court, the hearing officer's determination was based on Officer’s inconsistent statements in that his testimony at the hearing differed from statements he gave during an investigative interview and the hearing officer's credibility findings are entitled to deference.

As to the issue of the hearing officer considering hearsay evidence, the Appellate Division pointed out that “an administrative tribunal can rely upon credible hearsay evidence to reach its determination,” citing Muldrow v NYS Department of Corrections and Community Supervision, 110 AD3d 425.

As to the penalty imposed, termination, which implicitly denied Officer his vested interest to a retirement allowance,* the court held that dismissing Officer from the police force was not shocking to one's sense of fairness, explaining that Officer was brought up on five separate charges based on events that occurred over a three-year period and he was found guilty of nine of the specifications charged following a hearing.

However, Officer’s long service and the fact that he was a decorated officer with eighteen years of service who often received high ratings on department evaluations served as mitigating factors in determining an appropriate penalty to be imposed. Notwithstanding the fact that Officer was previously disciplined for insubordination and placed on "one-year dismissal probation," the Appellate Division said that given Officer’s service and awards the penalty should be modified “solely to the extent of permitting Officer to apply for vested interest retirement benefits.”

* The Administrative Code of the City of New York provides that an employee may forfeit his or her retirement allowance under certain circumstances. For example, Section 13-173.1 of the Administrative Code requires a member of the City’s Employees’ Retirement System to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the member is not "in service" on that date, he or she forfeits his or her retirement benefits. The Court of Appeals addressed the provisions of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02008.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 14, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 14, 2015

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

Brighter Choice Charter Middle School for Girls,

Elmira City School District, and

Patchogue-Medford Union Free School District.

Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

Town of Austerlitz,

Town of Boonville,

Town of Caton,

Delaware County,

Town of Indian Lake, and

Tompkins County.

Comptroller DiNapoli & A.G. Schneiderman Announce State Prison Sentence for Florida Woman in $120,000 Pension Fraud Case
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Friday announced the conviction and sentence of Graycelia Cizik, 64, a resident of Polk County, Florida. Cizik pleaded guilty on January 21, 2015 to a one-count Indictment charging her with the crime of Grand Larceny in the Second Degree, a class C felony. Friday, she was sentenced to 2 to 6 years in state prison by Supreme Court Judge Roger D. McDonough in Albany County Court. Cizik also agreed to a judgment in favor of the New York State and Local Employees Retirement System in the amount of $121,772.72.

DiNapoli & Schneiderman Announce Sentencing of Former Met Council Insurance Broker
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Monday announced that Joseph Ross, the former insurance broker for the Metropolitan Council on Jewish Poverty (“Met Council”), has been sentenced to 18 months in jail. Ross also paid $534,000 in restitution to the Met Council and agreed to a judgment against him in the amount of $956,000 in favor of the Met Council. The joint investigation revealed that Ross, together with former Met Council CEO William Rapfogel and other co-conspirators, stole approximately $9 million from the taxpayer-funded nonprofit organization as part of a 20-year grand larceny and kickback scheme. Ross personally stole $1.5 million from the Met Council.

DiNapoli: Wall Street Bonuses Edge Up in 2014
The average bonus paid in New York City’s security industry rose by 2 percent to $172,860 in 2014, according to an estimate released Wednesday by New York State Comptroller Thomas P. DiNapoli. Even though the industry was slightly less profitable in 2014, it added 2,300 jobs in New York City, the first year the industry has added jobs since 2011.

DiNapoli: Medicaid Redesign Presents Opportunities and Risks
The state’s efforts to limit Medicaid spending are showing measurable progress with annual growth at less than 2 percent. Still, state spending on Medicaid is projected to rise by nearly $700 million a year over the next four years and improving the quality of care for Medicaid patients remains a challenge after more than two decades of reform, according to a reportreleased Thursday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Expands State Spending Transparency on OpenBookNewYork.com
New York State Comptroller Thomas P. DiNapoli announced Tuesday that New Yorkers can now trace state spending back to the funding source or program on openbooknewyork.com, an easy-to-use search tool for the public to see how their tax dollars are being spent. This is the fifth expansion of the website, building on DiNapoli’s commitment to increasing government transparency.

DiNapoli Announces Results of General Obligation Bond Sale: $329,225,000 Awarded
State Comptroller Thomas P. DiNapoli Tuesday awardedthree series of New York State General Obligation Bonds totaling $329,225,000 through a competitive sale. Specifically, the sales were $142,555,000 of Series 2015A Tax-Exempt Bonds, $5,640,000 of Series 2015B Taxable Bonds and $181,030,000 of Series 2015C Tax-Exempt Refunding Bonds.

Legislative intent with respect to providing performance of duty disability retirement benefits to State and local correction officers

Legislative intent with respect to providing performance of duty disability retirement benefits to State and local correction officers
2015 NY Slip Op 519474, Appellate Division, Third Department

A New York State Correction Officer [Officer] challenged the New York Employees' State Retirement System's  denial of his application for performance of duty disability retirement benefits.

Officer had applied for performance of duty disability retirement benefits alleging that he was permanently incapacitated due to a work-related injury to his right knee. At the administrative hearing Officer testified that he had injured his knee while involved in a struggle to restrain an unruly inmate who had threatened another office and that he and the other officer were in the process of taking the inmate down to the floor when he felt pain in his knee.

However, Officer had signed a written report on the day of the incident that stated that, after the other officer had taken down and restrained the inmate, who had stopped resisting, he injured his knee when he slipped as he was placing shackles on the inmate's legs. 

Crediting the description of the incident in the written report over Officer's testimony, the Hearing Officer found that Officer failed to establish that his injury was the result of an act of an inmate and upheld the Retirement System's denial of the application. The Comptroller adopted that determination and Officer appealed.

Mindful "that inconsistencies between [Officer’s] sworn testimony and written documents present a credibility issue for the factfinder to resolve," the Appellate Division said that it deferred “to the Hearing Officer's decision to credit the account of the incident set forth in the contemporaneous written report over that testified to by [Officer] during the hearing.” However, said that court, even accepting as true the version of the event contained in the written report, the record lacks substantial evidence to support the determination that Officer’s injury was not "the natural and proximate result of any act of any inmate” within the meaning of Retirement and Social Security Law §607-c [a].

Retirement and Social Security Law §607-c (a) provides, in pertinent part, that “performance of duty disability retirement benefits shall be available to a correction officer ... who becomes physically or mentally incapacitated for the performance of duties . . . by, or as the natural and proximate result of [,] any act of any inmate" (emphasis by the court) and the statute requires "that the [correction officer] demonstrate that his or her injuries were caused by direct interaction with an inmate."

The Appellate Division concluded that even accepting the version of the incident set forth in the written reports, the necessary "direct interaction" was present as Officer was injured while attempting to shackle an inmate who, just seconds earlier, had been taken down to the ground after violently threatening another correction officer. The court noted that the Hearing Officer erroneously found, which finding was adopted by the Comptroller, "[Officer] simply injured himself when he slipped after placing shackles on the inmate's feet" (emphasis by the court). Neither the testimony at the hearing nor any of the documentary evidence supports a finding that Officer was injured after he had shackled the inmate (emphasis by the court).

Under these circumstances, said the court, there is simply no evidentiary basis in the record to conclude that Officer’s injury was not the natural and proximate result of an act of an inmate. Further, explained the Appellate Division, ”... it is clear that the act of restraining a combative and unruly inmate is precisely the type of activity that was intended to trigger the protections afforded correction officers by Retirement and Social Security Law §607-c and the legislative justification for the enactment of both Retirement and Social Security Law §§507-b and 607-c — which provide performance of duty disability retirement benefits to correction officers employed by the Department of Corrections and Community Supervision and county-employed correction officers, respectively — was that "the increased inmate population of the state's prison system created strain and tension, manifesting itself in an increase in altercations among inmates and between inmates and correction officers." Thus, these statutes were thus "clearly intended to compensate correction officers who, because of the risks created by their 'daily contact with certain persons who are dangerous [and] profoundly antisocial.'”

Having determined that Officer’s injury was a natural and proximate result of an act of an inmate, the Appellate Division remitted the matter to the Comptroller “for further proceedings on the issue of the permanency of [Officer’s] alleged disability.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_519474.htm

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New York State's E-mail management and preservation policy

New York State's E-mail management and preservation policy

Source: Memorandum distributed by the State Office of Information Technology Services

A number of newspaper articles and editorials have addressed New York State’s “standard 90-day e-mail management system” implemented by State departments and agencies.

State departments and agencies were advised of this new procedure by means of a memorandum dated June 18, 2013 sent to the General Counsel of each State department and agency by the General Counsel of the New York State Office of Information Technology Services.*  

The memorandum stated that e-mails sent or received by State department and agency personnel on or after June 30, 2013 are  to be "automatically" purged from the user’s mailbox after 90 days unless the e-mail was subject to a Freedom of Information Law [FOIL] request or was relevant to litigation.

The complete text of the memorandum is posted on the Internet at:

http://www.propublica.org/documents/item/1184686-foil-2014-08-production.html

* The memorandum does not apply to political subdivisions of the State. 

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Employee alleged to have engaged in plagiarism

Office of Payroll Management v. Hassan, OATH Index No. 308/15

Computer systems manager who was assigned the task of developing a technical design document for the agency's new training application, was charged with plagiarism after he submitted a template which he had downloaded from the Internet and modified in part. ALJ Ingrid M. Addison recommended dismissal of the charge. Evidence showed that the manager's work was not in final form, he did not conceal that he was using a template, and the use of templates were not forbidden by petitioner's rules. Testimony suggested that downloading templates was common practice in the industry. ALJ Addison also recommended dismissal of the charge that respondent was incompetent because he failed to meet project deadlines. The ALJ found that the delay was caused by other factors not created by the manager. Charges that the manager was paid for work not performed and was excessively absent were also not proven.  

Employee charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at work

Fire Dep't v. Buttaro, OATH Index No. 2430/14

Firefighter was charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at the firehouse, while on and off-duty, instead of Department-issued attire. ALJ Alessandra F. Zorgniotti found that petitioner established the charge and the additional charge that the firefighter disobeyed orders to wear only authorized clothing in the firehouse. The Department showed that the potential workplace disruption caused by the firefighter's conduct outweighed the firefighter's First Amendment right to wear non-Department issued t-shirts in the firehouse. Termination of employment was recommended and imposed.  Fire Dep't v. Buttaro, OATH Index No. 2430/14

Testing positive for alcohol during random test

Dep't of Transportation v. Anonymous, OATH Index No. 147/15.

Ship carpenter was charged with testing positive for alcohol during random test administered under federal regulations. ALJ Addison rejected carpenter's claims that he was not randomly selected or that the technician who performed the test did not comply with federal regulations or that the positive result was caused by acid reflux. Termination of employment was recommended.  

Employee alleged to be mentally unfit to perform his job

Dep't of Environmental Protection v. J.B., OATH Index No. 321/15

Petitioner alleged that an environmental police officer was mentally unfit to perform his job under Civil Service Law Section 72, subjected the officer to examinations by psychiatrists employed by the Police Department who found him mentally unfit, and placed him on an immediate leave of absence, following an incident in which the officer engaged in a religious practice known as "speaking in tongues" in the workplace. ALJ Tynia D. Richard granted respondent's motion to dismiss the proceeding, finding petitioner failed to comply with statutory requirements and the officer was not afforded due process. Written notice that should have been provided to the employee to advise him of the facts that gave rise to the Department's belief that he was unfit and of its intent to place him on a Section 72 medical leave was untimely, occurring five months after psychological testing commenced; the exams were not conducted by doctors designated by the Citywide Administrative Services as required by statute; and an involuntary leave was imposed prior to hearing without probable cause to believe that the officer's presence at the job would present a danger or severely interfere with operations.   

N.B. OATH Index No. 321/15 decision rejected and remanded, Commissioner ruled that Section 72 procedures were inapplicable because the purpose of the exams was not to evaluate the officer for a leave of absence and remanded the case to the ALJ for a recommendation regarding the officer's mental fitness.

Submission of a fraudulent medical note alleged

Human Resources Admin. v. Lopez, OATH Index No. 496/15

ALJ Kara J. Miller found that a job opportunity specialist submitted a fraudulent medical note and was absent without authorization for two weeks. After the employee's request for summer vacation had been denied in part, he failed to report to work for two weeks and then submitted a medical note requesting that his absence be excused for the entire period due to poison ivy. Noting irregularities in the note, petitioner checked with medical office employees, who indicated that the note was valid for only one day excusal. Termination of employment recommended.  

Positive drug test

Dep't of Sanitation v. Petosa, OATH Index No. 758/15

ALJ Richard recommended dismissal of a disciplinary charge based upon sanitation worker's positive drug test, where worker had admitted his drug problem and sought in good faith to obtain rehabilitation. The positive test occurred after worker had voluntarily entered a drug and alcohol rehabilitation facility, and he was referred to the Department's Employee Assistance Unit for testing and monitoring. He was told that he would have to take a drug test to establish a baseline level of usage and he would not be punished for a positive test.