Employee deferred compensation plan proposals requested

Employee deferred compensation plan proposals  requested

Source: New York State Register dated September 23, 2015

The Town of Lyons is requesting proposals from qualified administrative services agencies and, or, financial organizations relating to administration, trustee services and, or, funding of a deferred compensation plan for employees of The Town of Lyons meeting the requirements of Section 457 of the Internal Revenue Code and Section 5 of the State Finance Law, including all rules and regulations issued pursuant thereto.

A copy of the proposal questionnaire may be obtained from the Town of Lyons Town Clerk,  Sal Colatarci, 43 Phelps St., Lyons, NY 14489. Telephone: (315) 946-6252 (ext. 10) or e-mail the Town at  e-mail: townofly@rochester.rr.com

All proposals must be submitted no later 30 days from the date of publication in the New York State Register no later than 4:30 p.m.

A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test

A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test

Munroe v Central Bucks School District, United States Court of Appeals, Third Circuit, Docket #14-3509

It is well settled that “Public employees do not surrender all of their First Amendment rights merely because of their employment status. Thus a public employer may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." As the United States Supreme Court commented in Pickering v Board of Education, 391 U.S. 563* “Free and unhindered debate on matters of public importance constitutes a core value of the First Amendment.”

When the Central Bucks School District, a school district in Pennsylvania [Respondent] terminated Natalie Monroe [Teacher] from her teaching position, she sued the District alleging “First Amendment retaliation.” Teacher contended that her dismissal resulted from her making a number of derogatory comments about her own students on her personal Internet blog. In its defense, one Respondent witness testified that Teacher’s blog entries concerning the school and her students that “To say it was a disruption to the learning environment is an understatement.”

The United States District Court for the Eastern District of Pennsylvania granted the Respondent’s motion for summary judgment, holding that in its opinion Respondent had not violate Teacher’s constitutional right to free expression based on its determination that “as a matter of law that [Teacher’s] comments do not merit protection under the balancing test established by [Pickering and thus] ”it believed it was unnecessary to reach the question of whether [Teacher’s] speech directly caused her termination.”

Teacher appealed but the U.S. Circuit Court of Appeals, Third Circuit, sustained the district court’s ruling, holding that applying the Pickering balancing test, “[Teacher's] speech did not rise to the level of constitutionally protected expression.”

The court said that "the [public employer] has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general" and "the government as employer" possesses "far broader powers than does the government as sovereign."

The Circuit Court’s decision pointed out that should a person enter government service, he or she by necessity must accept certain limitations on his or her freedom as government employers, like their private counterparts, still "need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services."

Thus, said the Circuit Court, a public employer may impose speech restrictions that are necessary for efficient and effective operations but where employees are speaking as citizens about matters of public concern, they face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Accordingly, “speech that relates solely to mundane employment grievances does not implicate a matter of public concern.”

As to Teacher’s speech, the Circuit Court said that assuming that her speech “implicated a matter of public concern, this does not mean that her speech constituted speech protected by the First Amendment.” Further, said the court, “even if [Teacher's] speech was a matter of public concern, it was not constitutionally protected because the Pickering balancing test weighed in favor of [Respondent].”

* A summary of Pickering, “Essentials of the "Pickering Balancing Test” is posted on NYPPL at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The decision is posted on the Internet at:

http://www2.ca3.uscourts.gov/opinarch/143509p.pdf

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Morse v Fusto, US Circuit Court of Appeals, Second Circuit, Docket 13-4074

Qualified immunity protects public officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have known.

A grand jury indicted a dentist [Dentist], charging Dentist  with one count of Grand Larceny in the First Degree in violation of Penal Law §155.42 and eleven counts of Offering a False Instrument for Filing in violation of Penal Law §175.35.

These charges led to Dentist’s suspension from the New York Medicaid Program upon which his practice had depended; the liquidation of his dental practice as a consequence of such suspension; the loss of his teaching position at a New York hospital;* the public dissemination of the story of his indictment, including at least one press release issued by the Office of the Attorney General; and newspaper articles in various newspapers.

Upon his acquittal of all charges, Dentist brought an action against a Special Assistant Attorney General and an Audit-investigator [Defendants] in federal district court alleging that Defendants had deprived him of his constitutional right to a fair trial by intentionally manipulating certain information on spreadsheet summary charts before they were presented to the grand jury in order to create the false impression that Dentist billed Medicaid for dental services that he did not provide.

Essentially, Dentist contended that Defendants, acting as government officials in an investigative capacity, knowingly created false or misleading evidence.

Defendants, in rebuttal, claimed “qualified immunity,” and asked the federal district to grant them summary judgment dismissing Dentist’s complaint.

The district court denied Defendants’ motion and the jury returned a verdict in favor of Dentist based on its finding that Defendants “knowingly created false or fraudulently altered documents” to the grand jury.

Defendants appealed the district court’s denial of their motion for summary judgment, contending that “their conduct was not clearly prohibited by the Constitution and that they were therefore entitled to qualified immunity as a matter of law.”

The U.S. Circuit Court of Appeals affirmed the district court’s ruling, denying Defendant's motion for summary judgment stating that it had concluded that the Defendants were not entitled to qualified immunity. The court said that Dentist’s Constitutional rights had been violated and “the law giving rise to the violation was clearly established at the time of the violation.”

Further, the Circuit Court also concluded that “the district court did not err by declining to order a new trial despite its conclusion that one of the factual assertions upon which the verdict was based was insufficiently supported by the evidence.”

* Dentist regained his teaching position following his acquittal.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/doc/14-1993_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/hilite/

State’s removing a private lawsuit from State court to Federal court waives a State’s 11th Amendment immunity but may not affect its general sovereign immunity

State’s removing a private lawsuit from State court to Federal court waives a State’s 11^thAmendment immunity but may not affect its general sovereign immunity

Beaulieu v State of Vermont, US Circuit Court of Appeals, Second Circuit, Docket #13-4198-cv

704 current and former employees of the State of Vermont [Plaintiffs], brought an action in State court contending that because their weekly pay is or was reduced for partial-day absences in excess of their accrued leave, they are or were not paid on a “salary basis” under the Fair Labor Standards Act [FLSA] and are thus entitled to overtime pay at one and one-half times their regular rate.

Vermont  removed the action from Vermont   state court to the United States District Court, District of Vermont.

Vermont then moved to dismiss Plaintiff’s action based on its claim that it was immune from private lawsuit. The District Court agreed and dismissed the lawsuit “by reason of Vermont’s sovereign immunity* from private lawsuits.” Plaintiffs appealed.

The Circuit Court of Appeals affirmed the District Court’s ruling, explaining that although Vermont’s removal of Plaintiffs’ private lawsuit from Vermont state court to the United States District Court resulted in a waiver its Eleventh Amendment immunity from suit in federal court, it had not waived its general sovereign immunity from private lawsuits within the meaning of Vermont State Law.

Plaintiffs had argue that a statutory provision, Vermont Statutes Title 21, §384(b)(7) constituted an express waiver of the Vermont’s immunity from private actions brought under the FLSA. The Circuit Court disagreed, noting that although Title 21 provides that “[A]n employer shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek,” the statute further provides that “this subsection shall not apply to: (7) State employees who are covered by the Federal Fair Labor Standards Act.”

In the words of the Circuit Court, “Plaintiff's argument misunderstands the difference between the applicability of a federal statute to a state enacting lawful obligations upon the state, and the state's amenability to a private entity's suit to enforce such an obligation. There is no doubt that the FLSA applies to Vermont and creates a legal obligation on Vermont to pay its employees in accordance with the statute's terms. Nonetheless, Vermont's sovereign immunity—unless waived or forfeited—bars suit by a private entity seeking to enforce the FLSA's terms.”

Accordingly, said the court, “[t]he fact that Vermont state employees are covered by the FLSA does not mean that those employees are entitled to sue Vermont under the FLSA's private right of action,” concluding that the District Court correctly dismissed Plaintiffs private lawsuit on the basis of Vermont's general sovereign immunity, which Vermont had not waived. 

* The Doctrine of Sovereign Immunity holds that the state cannot commit a legal wrong and thus is immune from civil suit or criminal prosecution unless it has unequivocally waived such immunity.

 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e04cb9a1-65fc-473d-8e22-25494c8e1ec3/2/doc/13-4198_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e04cb9a1-65fc-473d-8e22-25494c8e1ec3/2/hilite/