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February 02, 2016

Name Clearing Hearings



Name Clearing Hearings
Stanziale v. Executive Dep't, Office of Gen. Servs., 55 N.Y.2d 735

Where the reason for the employee's termination from employment is claimed to be stigmatizing nature, the individual may demand a "name-clearing hearing."

Stanziale [petitioner] was a nontenured employee of the Office of General Services [OGS] at the time of his termination. As the courts held in Holbrook v State Insurance Fund, 54 N.Y.2d 892 and James v Board of Education, 37 N.Y.2d 891, where the employee is "nontenured", in the absence of individual showing that the termination was for constitutionally impermissible reasons or prohibited by statute or policies established by decisional law, the appointing authority is free to effect the termination without giving any reason for the dismissal and without holding a "pre-termination" hearing.

In Stanziale case the Court of Appeals said that its review of the record shows that these "proscriptions were not violated."

Citing Board of Regents v Roth, 408 US 564, the Court of Appeals said that even if the reason OGS elected to provide regarding the petitioner's termination could be said to have been stigmatizing, any hearing to which Stanziale might have bee entitled was accorded to him.

Finding that the challenged termination was neither arbitrary nor capricious and was made in good faith, the Court of Appeals observed that there was a rational basis for the appointing authority's rejecting the recommendation of the hearing officer and dismissing petitioner for the offense.

Accordingly, the only relief petitioner could demand was a "name-clearing hearing" in view of the court concluding that his termination was neither arbitrary nor capricious and was made in good faith. 



Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”


Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”
Phillips v York, 2016 NY Slip Op 00418, Appellate Division, Third Department

Warren County Sheriff's Office patrol officer Scott C. Phillips was served with two disciplinary charges as a result of his involvement in a preventable motor vehicle accident while on duty, an accident that allegedly resulted from his careless or negligent driving and that violated the terms of a previous disciplinary settlement agreement obligating him to exercise reasonable care in operating agency vehicles.

The  Civil Service Law §75 Hearing Officer sustained both charges and recommended that Phillips be given a letter of reprimand, a two-month suspension and a one-year term of disciplinary probation. The appointing authority adopted the findings of the Hearing Officer with respect to Phillips’ guilt, but determined that, under the circumstances, termination was the appropriate penalty. 

Phillips initiated a CPLR Article 78 proceeding challenging the appointing officer’s determination in Supreme Court, which transferred the action to the Appellate Division for resolution.

In his appeal Phillips first argued that appointing authority’s determination was arbitrary and capricious in that “it departed, without explanation, from prior disciplinary determinations imposing penalties well short of termination.” The Appellate Division said that those prior disciplinary actions “involve radically different misbehavior, a point noted by the Hearing Officer.” The court pointed out that while the appointing authority had declined to terminate employees for significant misconduct, those decisions are "factually distinguishable from this case” and did not require further explanation by appointing authority.

Phillips also contended that a September 2013 stipulation and agreement entered into by the parties following disciplinary action involving similar misconduct on the part of Phillips prohibited the appointing authority from terminating him. The court disagreed, noting that the stipulation and agreement relied upon by Phillips “did not include language prohibiting [the appointing authority] from seeking to terminate [Phillips] for future misconduct, and only stated that [the appointing authority] was free in his ‘discretion and without completion of all the formal provisions [of] . . . Civil Service Law §75 . . . [to] suspend[] [Phillips] without pay for a period not to exceed two (2) months’ if the terms of his probation were violated.” Significantly, the court said that had the parties "intended the clause to have a broader meaning" and preclude the appointing authority from seeking a harsher penalty if he employed the procedures set forth by Civil Service Law §75, it was incumbent upon them to "have specifically so stated."

Phillips also challenged the penalty of termination imposed by the appointing authority, claiming that such a penalty constituted an abuse of discretion because "it is so disproportionate to the offense as to shock [the court’s] sense of fairness" – a violation of the so-called the Pell Doctrine [Pell v Board of Education, 34 NY2d 222].

The Appellate Division was not persuaded by this claim, noting that “From March 2011 to December 2013, [Phillips] was involved in several preventable accidents while operating patrol vehicles. Despite progressive discipline imposed as a result of those accidents, it is evident that [the appointing authority] appropriately found from this history that [Phillips] would pose a risk to persons and property if he continued to hold his position as a patrol officer and, thus, we cannot say that the penalty of termination shocks our sense of fairness.”

The decision is posted on the Internet at:
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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
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Can Government Hiring Get Out of the Stone Age?


Can Government Hiring Get Out of the Stone Age?
Source: GOVERNING the States and Localities, February 2016

In the February 2016 issue of GOVERNING the States and Localities Katherine Barrett and Richard Green ask “Can Government Hiring Get Out of the Stone Age?”

Noting that “Urgency or not, many governments are locked in antiquated systems and outdated processes that stand in the way of bringing in the best and brightest. At a time when state budgets are loosening their strings and dormant programs are being refreshed, human resources departments are faced with the need to focus on improving their capacity to hire and to retain employees. Many governments are finding that if they want to hire the next generation of public employees, they’ll need to shift from the old ways of doing business.”

So what are states and localities to do? ask the authors. They then proposed and explain suggested changes in the following 10 key areas:

Enhancing benefits;
Loosening civil service requirements;
Reexamining minimum qualifications;
Changing your own expectations;
Recruiting online (and not just on your website);
Beefing up your technology;
Getting serious about interns;
Focusing on military vets; and
Changing the conversation.

The article is posted on the Internet at:

February 01, 2016

Distinguishing between employees and independent contractors


Distinguishing between employees and independent contractors
Matter of Strauss (Commissioner of Labor), 2016 NY Slip Op 00561, Appellate Division, Third Department

RMC Research Corporation, an educational research firm, had a contract with the New York City Department of Education to provide teaching consultants, known as "peer observers," for the purpose of evaluating teachers who had received unsatisfactory ratings from school administrators. RMC had retained former teachers, including Michael D. Strauss, to act as peer observers at various schools within the Department's jurisdiction. The evaluations of the peer observers were used to assist school administrators in determining whether a disciplinary proceeding should be brought to remove the teacher under review from his or her position.

The issue in this action was an Unemployment Insurance Appeals Board’s decision that Strauss and other similarly situated peer observers, were employees of RMC for the purposes of its liability for unemployment insurance contributions based on remuneration RMC paid to Strauss and others engaged as peer observers.

Strauss had entered into a "consultant agreement" with RMC that required him to make 10 site visits to the school where the  teacher rated "unsatisfactory" was assigned, six for observation, three for consultation and one for final assessment. In addition, he was required to prepare specific documents including observation reports, an individualized professional development plan and a final assessment letter in connection with his assignment, and to complete his assignment within 10 weeks.

Noting that the existence of an employment relationship is a factual issue for the Unemployment Insurance Appeals Board to resolve, and its determination in this regard is beyond judicial review if it is supported by substantial evidence,  the court explained that although no single factor is determinative, “where, as here, the services of teaching professionals are involved, ‘the pertinent inquiry’ is whether the purported employer retains control of important aspects of the services performed."

Here, said the court, RMC's hiring process required Strauss to submit an application, undergo an interview and provide references. He subsequently signed a “consultant agreement” and received six hours of training provided by RMC.

Further, Strauss was paid an hourly rate set by RMC, was expected to work three to four hours per week for a total of 36 weeks during the 10-week assignment and submitted a voucher provided by RMC on the 15th of each month to receive payment for hours worked. Significantly, the Appellate Division noted that Strauss was paid for services rendered regardless of whether RMC received payment from the Education Department.

Other items of significance, said the court, included RMC's name appearing at the top of the documents that peer observers were required to prepare; RMC determined the format of such documents; during the course of his or her assignment peer observers interacted with RMC's project director who reviewed their observation reports for comprehensiveness, clarity, spelling and grammar; any complaints about a peer observer’s performance were directed to RMC; and RMC arranged for a replacement if an assignment could not be completed.

In the words of the Appellate Division, “The foregoing illustrates that there is substantial evidence that RMC retained overall control over important aspects of [Strauss’] work to establish the existence of an employment relationship,” and found no reason to disturb the Board’s decision.

As to distinguishing between an employee and an independent contractor, 20 factors being used by the IRS for this purpose. They are:

1. Instructions. An employee must comply with instructions about when, where, and how to work. Even if no instructions are given, the control factor is present if the employer has the right to control how the work results are achieved.

2. Training. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods and receive no training from the purchasers of their services.

3. Integration. An employee's services are usually integrated into the business operations because the services are important to the success or continuation of the business. This shows that the employee is subject to direction and control.

4. Services rendered personally. An employee renders services personally. This shows that the employer is interested in the methods as well as the results.

5. Hiring assistants. An employee works for an employer who hires, supervises, and pays workers. An independent contractor can hire, supervise, and pay assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.

6. Continuing relationship. An employee generally has a continuing relationship with an employer. A continuing relationship may exist even if work is performed at recurring although irregular intervals.

7. Set hours of work. An employee usually has set hours of work established by an employer. An independent contractor generally can set his or her own work hours.

8. Full-time required. An employee may be required to work or be available full-time. This indicates control by the employer. An independent contractor can work when and for whom he or she chooses.

9. Work done on premises. An employee usually works on the premises of an employer, or works on a route or at a location designated by an employer.

10. Order or sequence set. An employee may be required to perform services in the order or sequence set by an employer. This shows that the employee is subject to direction and control.

11. Reports. An employee may be required to submit reports to an employer. This shows that the employer maintains a degree of control.

12. Payments. An employee is generally paid by the hour, week, or month. An independent contractor is usually paid by the job or on straight commission.

13. Expenses. An employee's business and travel expenses are generally paid by an employer. This shows that the employee is subject to regulation and control.

14. Tools and materials. An employee is normally furnished significant tools, materials, and other equipment by an employer.

15. Investment. An independent contractor has a significant investment in the facilities he or she uses in performing services for someone else.

16. Profit or loss. An independent contractor can make a profit or suffer a loss.

17. Works for more than one person or firm. An independent contractor is generally free to provide his or her services to two or more unrelated persons or firms at the same time.

18. Offers services to general public. An independent contractor makes his or her services available to the general public.

19. Right to fire. An employee can be fired by an employer. An independent contractor cannot be fire so long as he or she produces a result that meets the specifications of the contract.

20. Right to quit. An employee can quit his or her job at any time without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete it.

Additional information concerning the status of an individual as an employee or as an independent contractor is posted on the Internet at: 

The Strauss decision is posted on the Internet at:

January 30, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending January 30, 2016


Selected Reports issued by the Office of the State Comptroller during the week ending January 30, 2016
Click on text highlighted in color to access the full report

Former Security Director of the Monroe County Water Authority Pleads Guilty to Felony Charge in Elaborate Bid-Rigging Case
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Robert Wiesner, the former Security Director for the Monroe County Water Authority, for working with others to rig the bidding process for a multi-million dollar public works contract in Monroe County. Wiesner entered a guilty plea before The Honorable Dennis M. Kehoe in Monroe County Court to the class “E” felony charge of Combination in Restraint of Trade and Competition in violation of General Business Law §§ 340 and 341, also known as a violation of New York State’s Donnelly Act.


82
School Districts in Fiscal Stress
Eighty-two school districts have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. The scoresare based on the evaluation of 672 school districts with fiscal years ending on June 30, 2015.


Municipal audits released

Clifton Park Water Authority – Water charges

Cortland County Industrial Development Agency – Project management

Middle Country Public Library – Treasurer

Otsego CountyCost of temporary housing


School Audits
 
Chazy Union Free School District – Payroll

Dobbs Ferry Union Free School District – Reserve funds

Haldane Central School District – Budget transfers and information technology

Randolph Academy Union Free School District – Financial management

Saranac Central School District – Payroll

South Seneca Central School District– Financial management

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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