An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual

An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual
2015 NY Slip Op 04890, Appellate Division, Third Department

After a probationary teacher [Probationer] was terminated from her employment by the School District she commenced an action against a number of school administrators and board members [Defendants] alleging that Defendants had maliciously published defamatory statements about her and that her due process rights were violated by Defendants' failure to provide her with a name-clearing hearing.

Supreme Court granted Probationer's application to annul the School Board's determination denying her a name-clearing hearing and ordered such hearing to be provided.

Addressing Probationer’s due process claim, the Appellate Division said that Supreme Court erred in annulling the Board's determination and granting plaintiff a name-clearing hearing. The court explained that where "a government employee is dismissed for stigmatizing reasons that seriously imperil the opportunity to acquire future employment, the employee is entitled to an opportunity to refute the charge [or charges]" at a name-clearing hearing if the employer publicly disclosed the stigmatizing reasons or if there is a likelihood of future dissemination of such reasons.”  

Probationer had requested a name-clearing hearing “to specifically defend against and address the assertions” by school officials concerning her termination or her relations with students that had been made part of her personnel file. However, said the court, Probationer’s allegations as to the stigmatizing content of such material did not include any further allegations that Defendants and the Board had publicly disclosed those letters or their contents.

Further, said the Appellate Division, Probationer’s assertion that she was seeking relief in the form of removal of the statement of reasons letter from her personnel file was sufficient to apprise the Board of an allegation that there was a likelihood that such a letter or its content might disseminated. Members of the Board, however, said that, before deciding to deny Probationer’s request for a name-clearing hearing the Board determined that the statement of reasons set out in the letter had been and would remain confidential.

Thus, the court concluded, “given that [Probationer] did not allege that Defendants and the Board had publicly disseminated any stigmatizing materials and considering the evidence supporting the conclusion that [Probationer’s] allegation that the statement of reasons letter was in [Probationer's]  personnel file was factually incorrect, there is no basis to disturb the Board's denial of a name-clearing hearing.

Turning to Probationer's action alleging statements made by certain school officials had subjected her to "ostracism and rejection" in the community, the Appellate Division, after explaining the relevant law, held that “Given that defendants do not challenge the jury's determinations that [certain school officials] made the respective statements and that they were defamatory” and remanded the case for a new trial to determine damages, if any, “based upon proof of harms limited to those that can be linked by proximate cause to the two slanderous statements.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04890.htm

NYS Employees’ Retirement System benefits are based on the member’s job title at the time of his or her retirement

NYS Employees’ Retirement System benefits are based on the member’s job title at the time of his or her retirement

2015 NY Slip Op 04555, Appellate Division, Third Department

In 2008, aNew York State Correction Officer [Officer] retired from his position and began collecting service retirement benefits pursuant to Retirement and Social Security Law Article 14. Some four years later Officer requested that he be granted service retirement benefits pursuant to Retirement and Social Security Law Article 15, contending that “other correction officers … had been granted service retirement under Article 15.”

After an administrative hearing, the Hearing Officer concluded that Officer was not eligible for Article 15 service retirement benefits and the Comptroller adopted the Hearing Officer’s decision, in which he included a supplemental conclusion of law, and denied the Officer’s request for Article 15 retirement benefits. Officer appealed the Comptroller’s decision.

The Appellate Division confirmed the Comptroller’s determination, noting that “The Comptroller has exclusive authority to determine all applications for retirement benefits and the determination must be upheld if the interpretation of [the] controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence."

Retirement and Social Security Law §600 (a) (2) (a) provides that "[m]embers in the uniformed personnel in institutions under the jurisdiction of the [D]epartment of [C]orrections and [C]ommunity [S]upervision of New York [S]tate" are excluded from Retirement and Social Security Law Article 15 benefits.”

A representative from the New York Stateand Local Employees' Retirement System testified that retirement benefits are based upon an applicant's job title at the time of the individual’s retirement, and Officer admittedly retired from service from the position of correction officer.

While Officer argued that the denial of his request for Article 15 service retirement benefits was irrational based upon the fact that other correction officers were granted such benefits, the Appellate Division said the record reflects that those officers had “transferred to civilian job titles prior to retirement.”

The court’s conclusion: The Comptroller's determination that Officer was ineligible for Article 15 service retirement benefits is consistent with the applicable statutory provision and supported by substantial evidence and will not be disturbed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04555.htm

Guidelines for the promulgating of rules and regulations by an administrative agency

Guidelines for the promulgating of rules and regulations by an administrative agency

Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., Court of Appeals, 2015 NY Slip Op 05514

In this case the Court of Appeals addresses the separation of powers doctrine in cases where a legislative body delegates to an administrative agency the power to “fill in the details” of the legislation by adopting rules and, or, regulations. 

The basic standard: the rules or regulations adopted by an administrative agency to implement a statute may not be inconsistent with the statutory language nor inconsistent with the underlying purposes of the legislation authorizing the promulgation of such rules or regulation.

The genesis of the case was the New York City Taxi & Limousine Commission’s [TLC] efforts to replace the Checker cab -- "the iconic taxi of yesteryear "– with “an iconic Taxi of Tomorrow” [ToT] by adopting certain rules setting new standards for such vehicles.

An association of medallion owners and an individual owner of a taxi fleet commenced a combined CPLR Article 78 proceeding and declaratory judgment action, seeking to invalidate the ToT rules and obtain a related declaration. The complaint alleged, among other things, that the TLC lacked authority to enact the ToT rules and violated the separation of powers doctrine in doing so.

Supreme Court held that the TLC had exceeded its authority under the City Charter and had violated the separation of powers by intruding in the City Council's domain. The court then declared that the ToT rules were invalid [42 Misc 3d 324]. The Appellate Division reversed the Supreme Court’s decision [see 121 AD3d 21].

Citing Boreali v Axelrod, 71 NY2d 1, the Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the issues of delegation of power and separation of powers overlap and are often considered together, noting that “if an [administrative] agency was not delegated the authority to enact certain rules, then it would usurp the authority of the legislative branch by enacting those rules,” explaining that “[t]he constitutional principle of separation of powers . . . requires that the [l]egislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies." Further, said the court, “as long as the legislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency's role.”

In Boreali, the Court of Appeals set out four "coalescing circumstances" that are non-mandatory, somewhat-intertwined factors for courts to consider when determining whether an administrative agency has crossed the hazy "line between administrative rule-making and legislative policy-making:"

1. Did the agency do more than "balanc[e] costs and benefits according to preexisting guidelines," but instead made "value judgments entail[ing] difficult and complex choices between broad policy goals" to resolve social problems?”

2. Did the agency merely fill in details of a broad policy or "wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance?"

3. Was the legislature unsuccessfully in reaching reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve?

4. Whether the agency must use its special expertise or competence in the field to develop the challenged rules or regulations.

In this case the Court of Appeals concluded that “[g]iven the broad statutory powers granted to the TLC to set policy as guided by enumerated safeguards and guidelines, the New York City Taxi & Limousine Commissiondid not exceed its authority or intrude on the City Council's domain in violation of the separation of powers doctrine by enacting the ToT rules.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05514.htm

Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee

Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee
2015 NY Slip Op 04892, Appellate Division, Third Department

An internal investigation by the Division of State Police concerning missing evidence resulted in misconduct charges being filed against a State Trooper [Trooper] for allegedly failing to obey a lawful order to truthfully answer questions and knowingly making a false entry in official records. The Division of State Police Hearing Board found Trooper guilty of the two charges and recommended a penalty consisting of a 60-day suspension without pay, a one-year disciplinary probation period and a letter of censure.

Trooper, however, was shown a determination already signed by the Superintendent of State Police imposing the penalty of termination from his employment and was told that he had 10 minutes in which to resign or he would be terminated.

Trooper resigned but subsequently commenced a CPLR Article 78 proceeding seeking to be reinstated. Supreme Court transferred the matter to the Appellate Division for review of the question of  “substantial evidence” supporting the findings of the Hearing Board with respect to Trooper's being found guilty of the charges filed against him.

Initially the Appellate Division considered the question of the Trooper’s resignation, commenting that a resignation "would ordinarily be beyond [its] review,” but noting “exceptions exist where . . . the resignation was allegedly ineffective and involuntary,"* citing Melber v NYS Education Department, 71 AD3d 1216.

As it was undisputed that the Superintendent had signed a written decision terminating Trooper’s employment, which document was shown to him and Trooper was told that he had 10 minutes to accept an "option" of resigning, the Appellate Division ruled that “under the narrow circumstances” of this case Trooper was effectively terminated by a final agency action when he was handed the signed termination document.

Turning to the merits of the issue of “substantial evidence,” the court sustained the hearing panel’s determination as to Trooper’s guilt with respect to the charges filed against him, explaining that “credibility determinations are for the administrative factfinder when conflicting proof is presented.”

Although Trooper offered explanations “for some of the many discrepancies” in his testimony, the Appellate Division said that “this created a credibility question which was resolved against him” and substantial evidence supports the administrative determination.

As to the penalty imposed by the Superintendent, the court said “we have observed that ‘a State Trooper holds a position of great sensitivity and trust and a higher standard of fitness and character pertains to police officers than to ordinary civil servants," citing Bassett v Fenton, 68 AD3d at 1387-1388. The court said that the penalty imposed, termination, did not shock its sense of fairness in view of findings of Trooper’s “repeated false statements where the underlying matter implicated missing evidence, together with [Trooper’s] failure to accept responsibility even when confronted with contrary documentary proof.”

* Concerning the issue obtaining an "involuntary resignation," in Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals  pointed out that threatening to do what the appointing authority had a right to do -- in this instance filing disciplinary charges against the employee if the employee did not submit his resignation from his position -- did not constitute coercion so as to make the resignation involuntary.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04892.htm

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The 2015 edition of The Discipline Book, a concise guide to disciplinary actions involving public officers and employees in New York State, is now available in two formats - as a paperback print edition and in an electronic [e-book] edition. For more information click on
http://thedisciplinebook.blogspot.com

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The 2015 edition of the Discipline Book

The 2015 edition of this concise guide to disciplinary actions involving public officers and employees in New York State is now available in an electronic [e-book] edition. For more information click on http://thedisciplinebook.blogspot.com/

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Click on text highlighted in color  to access the full report

Georgia resident charged with sealing over $200,000 in pension benefits

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one-count indictment charging Richard L. Cook III, 57, a resident of Atlanta, Ga., with the crime of Grand Larceny in the Second Degree, a class C felony, in Albany County Court. Cook is charged with stealing over $200,000 in pension payments from the New York State and Local Employees Retirement System paid to his deceased mother, Yvonne Powell, a New York State pensioner who died in 2009.

http://www.osc.state.ny.us/press/releases/june15/062215.htm?utm_source=weeklynews20150628&utm_medium=email&utm_campaign=062215release

Former clerk-treasurer convicted of stealing $50,000 of the village’s funds

Former Village of Riverside clerk-treasurer Kristina Johnson was sentenced to jail time for repeatedly stealing village funds to cover her household expenses. State Comptroller Thomas P. DiNapoli announced Johnson was sentenced to 60 days in jail, five years probation and ordered to pay full restitution of $50,000 to the village.

http://www.osc.state.ny.us/press/releases/june15/062415.htm?utm_source=weeklynews20150628&utm_medium=email&utm_campaign=062415release

ERISA provisions do not apply to government retirement plans insofar as its prohibition against “assignment and alienation” of benefits is concerned

ERISA provisions do not apply to government retirement plans insofar as its prohibition against “assignment and alienation” of benefits is concerned

2015 NY Slip Op 04949, Appellate Division, First Department

The husband [Son] and his former spouse [Daughter-in-Law] stipulated in a settlement, incorporated by reference, but not merged, into the judgment of divorce, whereby Daughter-in-Law waived her rights to receive payments as the designated beneficiary of her former mother-in-law's New York City Employees' Retirement System [NYCERS] pension plan.

Supreme Court granted Son’s motion to, among other things, direct Daughter-in-Law“to disgorge payments she received as the beneficiary of Son’s mother’s NYCERS pension plan. Daughter-in-Law appealed but the Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that Daughter-in-Law’s reliance on her argument that the waiver violated the Federal Employee Retirement Income Security Act's (ERISA) anti-alienation provision* was misplaced as 29 USC § 1003[b][1] provides that “The provisions of this subchapter shall not apply to any employee benefit plan if ,,, (1) such plan is a governmental plan” as defined in 42 USC §1002(32).** 

As NYCERS is a government plan of a political subdivision of a State, the provisions of ERISA cited by Daughter-in-Law in support of her claim did not apply. Thus, said the Appellate Division, Supreme Court “correctly applied standard principles of contract interpretation to the stipulation, as it [was] a settlement agreement in a divorce action.”

The provision in question, titled "Retirement Funds," said the court, evinced an intent to waive the parties' rights to each other's retirement funds. Further, noted the Appellate Division, the clause in which Daughter-in-Lawwaived her right to such benefits included her waiver of "any and all pension funds set up during the marriage in [Daughter-in-Law’s] name by . . . a member of [Son’s] family." This language, said the court, evinced a related intent by Daughter-in-Law to waive her rights to Son's relatives' retirement funds, including her rights to her former mother-in-law's NYCERS pension benefits.

* 29 USC § 1056[d][1] provides that “Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.”

** 42 USC §1002, Subdivision 32, provides that the term “governmental plan” means a plan established or maintained for its employees “by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04949.htm

Employee must exhaust available administrative remedies unless he or she can demonstrate that such action would be futile

Employee must exhaust available administrative remedies unless he or she can demonstrate that such action would be futile

2015 NY Slip Op 05402, Appellate Division, First Department

A member of the College’s faculty [Petitioner] was not reappointed as an assistant professor by the College. Petitioner filed an Article 78 petition seeking a court order annulling the College’s decision not to continue her employment. Supreme Court dismissed Petitioner’s action.

Petitioner appealed but the Appellate Division sustained the lower court’s ruling, explaining that the relevant collective bargaining agreement governing an employee’s employment with the College provided for a three-step grievance and arbitration procedure. As Petitioner did not to avail herself of this procedure, the Appellate Division explained that she was precluded from seeking relief under Article 78 of the CPLR as she had not exhausted her administrative remedies.

In addition, the Appellate Division noted that Petitioner failed to establish that arbitration, which could result in referral to a three-member committee of faculty members drawn from a panel jointly chosen by the Chancellor and the union pursuant to terms and conditions set out in the collective bargaining agreement, would be futile.

Finally, the Appellate Division rejected Petitioner’s contention that the Chancellor's academic judgment as to her scholarly record and the College’s failure to secure meaningful funding does not constitute an "agency policy" that would render her resorting to her administrative remedies futile.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05402.htm

Public employees cannot be required to surrender their legal right to their continued receipt of retirement benefits otherwise provided by law

Public employees cannot be required to surrender their legal right to their continued receipt of retirement benefits otherwise provided by law

2015 NY Slip Op 05243, Appellate Division, Third Department

Upon reaching the age of 70 the New York State Constitution, Article VI, §25(b) and Judiciary Law §115 requires Supreme Court justices to apply for certification to continue their services on the Supreme Court bench.

In October 2013, the Administrative Board of the Courts of New York State [Board] adopted a new policy that "no judge henceforth certificated for service as a Justice of the Supreme Court pursuant to Judiciary Law §115 may receive, concurrent with receipt of a salary for such service, a retirement allowance for prior judicial service within the Unified Court System." In December 2013, Justice Gerald E. Loehr and certain of sitting Justices [Justice Loehr] were informed of their need to comply with the new policy and that approval for certification would therefore be conditioned on such compliance.

Justice Loehr filed an Article 78 petition and an action for declaratory judgment seeking, among other things, a declaration that the Board’s policy that certificated justices not receive such pension benefits during such employment was illegal, a ruling annulling approval of Justice Loehr's recertification being contingent upon suspension of such pensions during such employment and a declaration that Justice Loehr is not subject to such policy.

Supreme Court granted the Board’s motion to dismiss Justice Loehr's complaints, declared the policy to be neither illegal nor unconstitutional and Justice Loehrappealed.

The Appellate Division reversed Supreme Court’s ruling and held that the Board’s policy violated Retirement and Social Security Law §212, Judiciary Law §115 (3) and NY Constitution, Article V, §7. The Appellate Division explained that as relevant in this action Retirement and Social Security Law §212(1) provides that "there shall be no earning limitations under the provisions of [Retirement and Social Security Law § 212] on or after the calendar year in which any retired person attains age [65]."

The court said that the language of Retirement and Social Security Law §212 explicitly allows New York public employees — including justices of the Supreme Court — to retire in place and continue to work while collecting their state pension, rejecting the Board’s argument that §212(1) implicitly permits state employers, including the Board, to require employees to bargain away their legal right to the continued receipt of retirement benefits is unpersuasive. Indeed, noted the Appellate Division, “the plain language of §212(1) grants this right to public employees without mention of employers or an employer's discretion to condition recertification upon suspension of a statutory right.

Noting that the history of Retirement and Social Security Law §212 supports the conclusion that the Legislature intended to give certain pension rights to public employees and those rights are not subject to their employer's preferences, the Appellate Division said that it “cannot discern a rational argument for the proposition that a Supreme Court justice's pension-taking falls under the category of necessity when determining a justice's eligibility for certification” and declared that the Board's policy was "illegal and contrary to law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05243.htm

Some issues to be mindful of when filing and prosecuting an appeal before the Commissioner of Education

Some issues to be mindful of when filing and prosecuting an appeal before the Commissioner of Education

Appeal of Guilaine Leger-Vargas, Decisions of the Commissioner of Education, Decision No. 16,771

Guilaine Leger-Vargus, a disappointed candidate in the 2012 annual election to a school board, alleged that certain school officials had engaged in conduct prior to the election that interfered with her campaign and the election.

Among the remedies Ms. Leger-Vargas sought by in her appeal to the Commissioner of Education was the removal of certain members of the school board and the school superintendent and the “reprimand and fine of [certain] district officials and employees.”  

The Commissioner said that the appeal must be dismissed and the application denied, noting, among others, the following procedural difficulties:

1.  Ms. Leger-Vargas submitted newspaper articles as exhibits to her petition.  The Commissioner said that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein” and such articles will not be considered “for the veracity of their content.”

2. Ms. Leger-Vargas’ reply to the school district’s answer may respond to new material or affirmative defenses set forth in the answer and is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition. The Commissioner said that those portions of a reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer will not be considered.

3. To the extent that a reply also addresses other appeals pending before the Commissioner, the Commissioner said that “such submission is improper and those portions will not be considered….”

4. Regarding Ms. Leger-Vargas’ memorandum of law, the Commissioner said that a memorandum of law should consist of arguments of law and may not be used to add belated assertions or exhibits that are not part of the pleadings.

5. As to the relief sought by Ms. Leger-Vargas, the Commissioner said that, to the extent that she seeks to have the Commissioner reprimand and fine district employees, there is no provision in the Education Law authorizing the imposition of a reprimand or the imposition of a fine of a board member, a school officer or a member of the school district staff's by the Commissioner of Education. The Commissioner observed that the board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner of Education.

Turning to the merits of Ms. Leger-Vargas' appeal, the Commissioner explained that to invalidate the results of a school district election, the petitioner seeking have such results declared invlid must establish not only that irregularities occurred, but also a probability that any such irregularities actually affected the outcome of the election. 

However, noted the Commissioner, “It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results.

Additionally, in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief.  On this record, said the Commissioner, Ms. Leger-Vargas “has not established that an irregularity occurred or that the outcome of the election was affected by the alleged actions of [school officials].” 

Addressing a number of other issues raised by Ms. Leger-Vargas in her appeal, the Commissioner pointed out that:

To the extent that Ms. Leger-Vargas raises claims in her appeal that do not arise under the Education Law, such as acts of alleged defamation and slander, the Commissioner of Education lacks jurisdiction over such claims and, therefore, need not address them.

To the extent that Ms. Leger-Vargas seeks “an apology” from  a school board member, an officer or employee of the school district, the Commissioner lacks authority to order a member board of a education, a school officer or school district employee to do so.

To the extent that Ms. Leger-Vargas raised claimed violations of the Freedom of Information Law (FOIL), §89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner of Education.

The Commissioner, noting that Ms. Leger-Vargas’ appeal must be dismissed and her application for removal of certain school officers and officials denied, said “the parties are reminded that public officials and employees can and should avoid unnecessary contention, particularly by ensuring that their actions cannot be interpreted as offensive to any specific individual or group.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16771