A party to a stipulation of settlement cannot withdraw from the stipulation on the basis that it had "improvidently" agreed to it

A party to a stipulation of settlement cannot withdraw from the stipulation on the basis that it had "improvidently"agreed to it

State of New York v Public Employment. Relations Board, 2016 NY Slip Op 02131, Appellate Division, Third Department

Supreme Court dismissed New York State’s application seeking a review of the New York State Public Employment Relations Board’s [PERB] denial of the State's request to withdraw from a stipulation of settlement and vacate a PERB decision issued in consideration of such stipulation.

The Governor's Office of Employee Relations (GOER) and the Public Employees Federation [PEF] notified PERB's Director of Public Employment Practices and Representation [Director] that the parties had reached a stipulation of settlement whereby PEF had agreed to withdraw certain representation petitions pending before PERB and that GOER had agreed to the placement of 250 of the 2,000 relevant unrepresented positions in the Professional, Scientific and Technical Services [PST] negotiating unit.

The parties expressly agreed that the employees in the 250 positions, which were listed in an attached appendix, were "not assigned to any duties that would bring them within the definition of managerial and/or confidential under [Civil Service Law] §201.7(a)" and that the individuals in those positions "share[d] a general community of interest with other [s]tate employees in the [PST] [u]nit." Relying on the stipulation, the Director issued an interim decision consistent with the stipulation. 

GOER subsequently moved to vacate the stipulation and the interim decision on the basis that GOER “it had failed to provide sufficient guidance to the impacted agencies to allow them to make a determination as to whether the employees in the subject positions served in a managerial or confidential capacity." This failure, said the State, resulted in certain employees being identified in the stipulation as PST unit employees although they, in fact, continued to perform duties that are appropriately deemed managerial or confidential within the meaning of the Taylor Law.

The Director denied the motion and, ultimately, PERB granted PEF's petition to the extent of placing the 250 positions in the P S and  T unit. The State then commenced an CPLR Article 78 proceeding seeking review of PERB's determination. Supreme Court confirmed the determination and dismissed the petition; the Appellate Division sustained the Supreme Court’s ruling.

Noting that the court had a “limited scope of review in matters involving PERB's interpretation of the Civil Service Law,” the Appellate Division explained that a determination made by PERB would not be vacated “unless it was affected by an error of law or was arbitrary and capricious or an abuse of discretion.”

Although the State argued that PERB's refusal to vacate the stipulation and the interim decision was arbitrary and capricious because:

[1] The stipulation did not provide a sufficient factual basis to determine whether placement of the 250 positions into the PST unit was appropriate; and

[2] In issuing the interim decision, the Director relied on representations made in the stipulation without conducting an independent investigation into the appropriateness of the placement.

The Appellate Division was not persuaded by these argument, holding that while the Director is charged with investigating all questions relating to representation status, including whether the public employees to be included in the unit share a community of interest and "whether there is agreement among the parties as to the appropriateness of the alleged unit," a fair reading of the applicable regulatory provisions demonstrates that the Director is not required to conduct an independent inquiry into representation issues when the parties agree on unit placement.*

In the alternative, the State contended that PERB acted arbitrarily and capriciously by refusing to allow it to withdraw from the stipulation on the basis that it had "improvidently" entered into it.

This argument also proved unpersuasive. In the words of the Appellate Division, “[s]tipulations of settlement are favored by the courts and will not be disturbed unless they are sullied by fraud, collusion, mistake or accident." Citing Da Silva v Musso, 53 NY2d 543, the court said that a stipulation may not be invalidated on the basis of unilateral mistake where the mistake arose out of a party's failure to ascertain facts that were available at the time that it entered into the stipulation.”

The same general principle applies with respect to collective bargaining agreements. In the Matter of the Arbitration between City of Plattsburgh and Plattsburgh Police Officers Union AFSCME Local 82, 250 AD2d 327, leave to appeal denied, 93 NY2d 803, the Appellate Division, in effect, held there is no judicial or quasi-judicial cure for “negotiator's remorse” should a party agree to a lawful contract provision in the course of  collective bargaining and subsequently claim it agreed to the provision “by mistake.”

The State’s “sole basis” for seeking rescission of the stipulation, said the court, was that it failed to provide the training necessary to determine whether an employee was performing in a managerial or confidential capacity and that it, therefore, "ha[d] reason to believe that certain of the employees continue[d] to perform duties that are appropriately deemed managerial or confidential."**

Noting that the parties had entered into the stipulation of settlement some 2½ years after PEF filed the triggering representation petition with PERB, the Appellate Division opined that the State “had sufficient time to investigate and discover the nature of the duties assigned to the employees in the 250 at-issue positions, and its failure to do so in a timely manner does not warrant invalidation of the stipulation of settlement.”

Another point to remember. From time to time a "position" may be referred to as a "managerial" or "confidential" position. However it is not the position  in which an incumbent serves that determines the individual's "managerial" or "confidential" status.The relevant law clearly provides that “individuals” rather than “positions” are to be designated managerial or confidential, which designation is to be based on the nature of the duties being performed by the individual rather than on the basis of the “title” of the position in which the individual serves.

§201.7[a], in pertinent part, states that “Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment. Employees may be designated as confidential only if they are persons who assist and act in a confidential capacity to managerial employees described in clause (ii).”

The only positions designated managerial or confidential in Article 14 of the Civil Service Law, the Taylor Law, in terms of  “title” are set out in Civil Service Law §201.7[b].

§201.7[b] provides that “For the purposes of this article, assistant attorneys general, assistant district attorneys, and law school graduates employed in titles which promote to assistant district attorney upon admission to the bar of the state of New York shall be designated managerial employees, and confidential investigators employed in the department of law shall be designated confidential employees.”

* The stipulation of settlement reflected that the parties agreed that the employees to be included in the unit, whose positions were listed in an appendix, did not perform duties that fell under the classification of managerial or confidential and that they shared a community of interest with the employees in the PST unit.

** The court also commented that the State “did not identify those employees that they assert were improperly placed into the P S and T unit or provide any evidence to substantiate its conclusory claims.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02131.htm

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress

Petkewicz v Dutchess County Dept. of Community and Family Servs., 2016 NY Slip Op 01854 [Action I]

Petkewicz v Dutchess County Dept. of Community and Family Servs., 2016 NY Slip Op 01819 [Action II]

Susan Petkewicz filed two lawsuits against the Dutchess County Department of Community and Family Services in Supreme Court. In the first, Action I, Petkewicz asked Supreme Court to annul the termination of her employment during her probationary period. In the second,  Action II,  Petkewicz sued to recover damages, alleging the intentional infliction of extreme emotional distress arising out of the termination of her employment as a probationary employee with the Dutchess County Department of Community and Family Services.

Supreme Court dismissed both Action I and Action II. Petkewicz appealed both decisions but the Appellate Division affirmed both Supreme Court rulings.

Action I

Addressing Petkewicz’s appeal concerning the merits of her termination from her probationary employment, the Appellate Division said that Petkewicz had received three written appraisals of her performance, the last two of which rated her performance as unsatisfactory and ultimately she was terminated prior to the expiration of the 12-month probationary period.

Noting 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,"*the Appellate Division, citing Lane v City of New York, 92 AD3d 786,  said “Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason.” Further, said the court, the employee has "the burden of raising a material issue as to bad faith or illegal reasons, and conclusory allegations of misconduct or unlawfulness are insufficient to meet this burden."

The Appellate Division concluded that Petkewicz failed to meet her burden of raising a material issue as to bad faith or any other improper reason for her discharge, explaining that the record demonstrated her termination prior the satisfactory completion of her probationary period “had a rational basis, and that her allegations to the contrary were either conclusory or speculative in nature.”

Action II

In addressing Petkewicz’s appeal concerning the alleged “infliction of emotional distress the Appellate Division noted that in Klein v Metropolitan Child Services, Inc., 100 AD3d 708, that court held "The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress"

Petkewicz claimed that her supervisor, Diane Malone, “was overtly hostile, failed to provide her with meaningful mentoring and constructive feedback, and improperly prejudged her ability to perform her work duties, leading to her discharge.” Petkewicz also contended that the Department acquiesced in Malone's wrongful conduct, which was “extreme and outrageous,” and that such conduct was intended to and did cause her extreme emotional distress.

The Appellate Division, affirming the Supreme Court’s decision granting the Department’s motion to dismiss Petkewicz’s complaint, said that “Even accepting as true the allegations in the complaint regarding the defendants' conduct, and according the plaintiff the benefit of every possible favorable inference, the defendants' conduct was not so extreme or outrageous as to satisfy the first element of intentional infliction of emotional distress.”

Addressing another issue raised in Supreme Court by Petkewicz, the Appellate Division rejected Petkewicz’s argument that Supreme Court should have recuses itself, holding that “Supreme Court providently exercised its discretion in denying [Petkewicz’s] cross motion for recusal,” explaining that [1] Petkewicz failed to establish that there was a basis for recusal pursuant to Judiciary Law §14 and [2] failed to set forth any proof of bias or prejudice on the part of the Supreme Court Justice.

* Case law indicates that a probationary employee may be terminated at any time after the completion of his or her minimum period of probation and prior to his or her completion of the maximum period of probation 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 York v McGuire, 63 NY2d 760].

The decision in Action I is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01854.htm

The decision in Action II is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01819.htm

Removing a volunteer firefighter from his or her position

Removing a volunteer firefighter from his or her position
Dolan v New Hyde Park Fire Dept., 2016 NY Slip Op 01844, Appellate Division, Second Department

Michael Dolan, Sr., an elected member of the New Hyde Park Board of Fire Commissioners [Board], also served as a member of the New Hyde Park Fire Department [Department].

The Board filed disciplinary charges against Dolan pursuant to General Municipal Law §209-L* alleging that he had violated certain Rules and Regulations of the New Hyde Park Fire District. After a disciplinary hearing conducted by a hearing officer, the Board adopted the findings and recommendation of the hearing officer and dismissed Dolan from his position as a volunteer firefighter with the Department.

Dolan filed a petition pursuant to CPLR Article 78 against the Department and the Board seeking a court order [1] annulling the determination of the Board and [2] compelling the Board and the Department to reinstate him to his former position.

Dolan contended that the actions for which he was removed from his position as a firefighter were actions taken in his capacity as an elected Commissioner on the Board rather than as a member of the Department and, therefore, the only permissible remedy was to initiate proceedings to remove him as a Commissioner pursuant to Public Officers Law §36** rather than by taking disciplinary action pursuant to General Municipal Law §209-L.

Supreme Court granted Dolan’s petition; the Board, and the Department appealed.

The Appellate Division reversed the lower court’s ruling, explaining that “the fact that Dolan could also have been removed from his position as Commissioner pursuant to Public Officers Law §36 did not abrogate the Board's right to remove him as a member of the fire department” pursuant to General Municipal Law §209-L."

As to the merits of the disciplinary action taken against Dolan, the court said that “the fire district sufficiently established that Dolan violated a provision of the Rules and Regulations of the New Hyde Park Fire District that "[a]ll members shall conduct themselves at all times in such a manner so as not to bring disgrace or adverse criticism or ill feeling against the Company, Department, or District . . . Violation of this rule will be grounds for dismissal." This provision, said the court, applied to Dolan as a firefighter.

In addition, the Appellate Division ruled that “The evidence was also sufficient to establish that Dolan violated the provision of the Supplemental Rules of Conduct and Procedure …. [that] [i]t shall be the duty of all members and officers to refrain from taking district, department and company property without proper authorization."

As to Supreme Court’s opining that the Board's determination regarding Dolan’s dismissal should have been annulled on the basis that the three Commissioners who rendered it should have each recused themselves, the Appellate Division said that “there was no evidence that those three Commissioners had such personal involvement as would mandate recusal.”

However, said the court, the Supreme Court did not reach the issue concerning the “excessiveness of the punishment” imposed on Dolan. Accordingly the Appellate Division, citing Featherstone v Franco, 95 NY2d 550, remitted the matter to the Supreme Court for consideration of whether the penalty of dismissal “was so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness”.

* §209-L provides that “The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.”

** §36 of the Public Officer Law provides for the removal of a town, village, improvement district or fire district officer by a court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01844.htm

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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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Individual cannot be found guilt of misconduct not charged in the notice of discipline

Individual cannot be found guilt of misconduct not charged in the notice of discipline
Wise v New York City Human Resources Admin., 2016 NY Slip Op 01775, Appellate Division, First Department

Iris Wise was terminated from her position after being found guilty of participating in a scheme to improperly transfer cases to the East End Job Placement Center in violation of New York City’s Human Resources Administration Code of Conduct §III(1), (4), (11) and (37) and other laws and directives.

Considering Wise’s appeal, the Appellate Division ruled that the finding that Wise violated Code of Conduct §III(11) must be vacated. The court explained that Wish had not been charged with violating that section and thus had no reasonable opportunity to respond to such a charge.

In contrast, the court said that with respect to the remaining charges, substantial evidence in the form of testimony at the hearing, admissions and documentary evidence, including investigation reports, case transfer documents, lists, emails, and regional performance results, supported the administrative determination by establishing that Wise, “a deputy director ….  knowingly and actively participated with her immediate supervisors in a scheme to transfer job placement cases from other agency centers …. so as to satisfy the agency's job-placement goals for East End Centerand to reduce agency pressure on the center arising from years of under-performance.”

As to the penalty imposed by the appointing authority, termination, the court said that “under the circumstances,” such a penalty did not shock one's conscience or sense of fairness, citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01775.htm

___________________

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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Administrative determination annulled after being found to be arbitrary and capricious and in violation of the relevant regulation

Administrative determination annulled after being found to be arbitrary and capricious and in violation of the relevant regulation
Niang v New York City Dept. of Educ., 2016 NY Slip Op 01770, Appellate Division, First Department

The New York City Department of Education permanently revoked Babacar Niang’s certification to drive a school bus because he failed to submit to a drug test on the day on which he was involving in an accident. The Appellate Division unanimously annulled, the Department’s decision, reinstated Niang’s certification and  remanded the matter “for a determination of incidental damages, if any.”

The Appellate Division, noting that the appropriate test in this action was  “the arbitrary and capricious standard of review,” held that the Department’s determination revoking Niang's certification to drive a school bus was “arbitrary and capricious and contrary to its own regulation.”

The court explained that Chancellor's Regulation C-102, reflecting its new policy, does not provide for revocation where a bus driver fails to take a nonrequired drug test. The C-102 provisions requiring a postaccident test explicitly apply only when the accident involves loss of life, bodily injury, disabling damage to the vehicle, or after a third accident within any twelve month period. However, said the Appellate Division, that provisions does not apply here in that it was Niang’s first accident and that no one was injured and no vehicle was disabled.

The decision also notes that Niang “took a drug test within 24 hours and that the test was negative.”

Accordingly, said the court, Niang “is entitled to a hearing to determine whether any incidental damages resulted” as a result of the Department’s revocation of his certification to operate a school bus.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01770.htm

Selected reports issued by the Office of the State Comptroller during the week ending March 19, 2016

Selected reports issued by the Office of the State Comptroller during the week ending March 19, 2016

Click on text highlighted incolor to access the entire report

Comptroller DiNapoli and A.G. Schneiderman Announce Conviction of Atlanta Resident in Pension Fraud Case
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction and sentence of Richard L. Cook, III, 58, a resident of Atlanta, for the crime of Grand Larceny in the Third Degree, for stealing over $204,000 in state pension benefits issued to his deceased mother.

State Comptroller Thomas P. DiNapoli announced his office completed audits of the following school districts and BOCESs

Brushton-Moira Central School District, Financial Condition

Clinton-Essex-Warren-Washington Board of Cooperative Educational Services - Payroll

Clyde-Savannah Central School District - Financial Condition

Oneida-Herkimer-Madison Board of Cooperative Educational Services - Claims Payments

Patchogue-Medford Union Free School District - 2016-2017 Proposed Budget

Ravena-Coeymans-Selkirk Central School District - Payroll

New York Stateschool aid trends

Over the past ten years, state aid to school districts has increased $6 billion to $23.3 billion in 2015-16, according to a report issued today by State Comptroller Thomas P. DiNapoli which examined school aid patterns and trends in New York.

“School aid is the largest single state-funded expenditure within the budget,” said DiNapoli. “As the start of a new fiscal year approaches, this report is intended to provide policymakers and the public additional information on education funding in New York.”

Over the past decade, school aid has averaged 23.6 percent of state-funded expenditures. The Division of the Budget projects this share to increase to 25.6 percent over the next three years.

The largest component of state school aid is Foundation Aid, a statutory formula enacted in 2007 as the result of a ruling by the State Court of Appeals in the Campaign for Fiscal Equity lawsuit. After the ruling, the state committed to spend an additional $5.5 billion, using a new, transparent funding formula phased in over four years, adjusting aid for differences in both capacity of districts to raise local taxes and costs to provide services.

Following increases of just over $1 billion in school years ending in 2008 and 2009, state budgets during and just after the recession froze Foundation Aid. Starting in the 2012-13 state budget, Foundation Aid distributions increased by between $112 million and $428 million per school year.

Current funding for Foundation Aid is $15.9 billion, compared to the original projection of $18.1 billion by the fourth year of the program.

DiNapoli’s report also shows that starting in 2010-11, the state reduced school aid from levels otherwise driven by statutory formulas by $1.4 billion. These reductions – known as the Gap Elimination Adjustment, or GEA – grew to $2.6 billion in SY 2011-12. The GEA helped New York to close a multi-billion dollar budget deficit by assigning a portion of the state’s funding shortfall to all school districts as reductions in state aid.

In each year since 2012-13, the state has reduced the impact of the GEA by including a separate formula for unrestricted “GEA Restoration Aid” in the budget. This formula has had different calculations in each year, but the net impact over the past four years has been to reduce the GEA’s effect on high-need districts more quickly than on average or low-need districts.

For the upcoming 2016-17 state fiscal year, the Executive Budget proposes a total school funding increase of $991 million, including $266 million in Foundation Aid and the elimination of the GEA entirely for 200 mostly high need districts and reducing it by at least 30 percent for the remaining districts.

Local revenues, predominantly property tax collections, are the largest source of school funding. The relative share of school funding by source has also fluctuated in recent years, with the state’s share peaking at 39.1 percent in 2008-09 and dropping to 33.7 percent by 2011-12. Last year, the state’s share was 35.9 percent, consistent with the average for the ten most recent years, while local revenues made up 59.7 percent of total funding last year.

DiNapoli’s report also highlighted:

• Total state aid funding for schools is projected to climb to nearly $28 billion by 2019-20;

• Expense-based aids – state funding for items such as textbooks, student transportation and the construction of school facilities – have not seen major formula changes during the last ten years;

• In 2015-16, lottery aid is expected to total $3.2 billion, approximately 13.8 percent of overall state expenditures for school aid; and

• Revenue generated from new casinos that will be dedicated to school aid is expected to reach $168 million in 2019-20.

For more information, read the full report: New York State School Aid: Two Perspectives:
http://www.osc.state.ny.us/localgov/pubs/research/schoolaid2016.pdf

Distinguishing between residence and domicile

Distinguishing between residence and domicile

Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885, Appellate Division, Third Department

An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term “domicile” means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location. 

Zhanna Rosseychuk, as an employee of the New York City Office of Child Support Enforcement [Office], was required to become a resident of the City within 90 days of being hired and to maintain such residency.* The Office discharged Rosseychuk after it learned that that she did not comply with this residency requirements.

Rosseychuk’s application for unemployment insurance benefits was denied by an Administrative Law Judge [ALJ] on the ground that she voluntarily left her employment without good cause inasmuch as she provoked her discharge by not complying with the employer's residency policy. The Unemployment Insurance Appeal Board, without resolving the issue of whether Rosseychuk was in full compliance with the Office's residency policy, reversed the ALJ’s decision on the ground that the voluntary transgression prong of the doctrine of provoked discharge had not been established so as to find that Rosseychuk had voluntarily left her employment without good cause. The Office appealed the Board’s decision.

The Appellate Division said that a "Provoked discharge . . . is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him [or her]." Whether an applicant for unemployment insurance benefits voluntary left his or her of employment without good cause by provoking his or her discharge is a factual determination for the Board to determine.

Rosseychuk testified that she began living with her cousin in an apartment in New York Cityin an attempt to comply with the Office's residency requirements, as well as to accommodate her school schedule. Rosseychuk testified that she gave her cousin money to live in the apartment and to help offset expenses, that she received mail at that address, including bank account and credit card statements, and that she paid pays New York City income taxes. She also testified that, because she did not fully understand the residency requirement, she asked both her supervisor and the employer's personnel department if she was considered to be in compliance with the necessary requirement; those inquiries, however, went unanswered.

Although Rosseychuk spent time with her husband in an apartment outside New York City, the Office acknowledged that "an individual could maintain more than one residence, even if one was outside New York City, and still be in compliance with its residency requirement."

The Appellate Division ruled that “Under these circumstances, substantial evidence supports the Board's finding that [Rosseychuk] did not voluntarily engage in conduct that transgressed the [Office’s] mandate so as to find that she provoked her discharge.

* NYC Administrative Code §12-119 Definitions, provides: “As used in sections 12-120 and 12-121 of this subchapter:

“a. The word "residence" means domicileand the word "resident" means domiciliary[emphasis supplied].

“b. The term "city service" means service as an employee of the city or of any agency thereof other than service in a position which is exempted from municipal residence requirements pursuant to the public officers law or any other state law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01885.htm

Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Lawson v. Hilderbrand et al, USCA, 2^nd Circuit, 15-653-cv [Summary Order*]

Timothy Hilderbrand and his co-defendants appealed a United States District Court’s denial of their motion for summary judgment on their theory that they were entitled to qualified immunity on “Lawson’s search and seizure claims” in the first count of his complaint.** 

The Second Circuit Court of Appeals, citing Harlow v Fitzgerald, 457 US 800, said that qualified immunity may be claimed by public officers and employees in civil suits seeking damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The court then explained that although an appeal of a denial of a motion for summary judgment typically is not permitted as that decision is not a “final judgment,” the collateral order doctrine permits an immediate appeal of a denial of a motion for summary judgment on the issue of qualified immunity “where the district court denied the motion as a matter of law.”*** However, such an appeal is available to defendants only the defendants “accept as true [the] plaintiff’s version of the facts for purposes of the appeal.”

According to the decision, police entered Duncan Lawson’s home with his consent. When that consent was revoked, the Second Circuit said that “it was objectively reasonable” for the police officers to believe that “exigent circumstances made their continued presence in the house, and their confinement of the residents to the living room, lawful.”

The Second Circuit said that “When a government official charged with violating federal constitutional rights seeks summary judgment on the ground of qualified immunity, the Court may first consider whether there was a “violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.”

In this instance the court concluded that “the lack of clearly established law” barring the actions the police officers involved entitles them to qualified immunity for their actions.

In contrast, certain public officials are entitled to “absolute immunity.” Absolute immunity is typically limited to judges, prosecutors, legislators, and the highest executive officials when acting within their authority. Absolute immunity also has been granted to lawyers in some situations.

* Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by federal rule of appellate procedure 32.1 and the 2^nd Circuit’s Local Rule 32.1.1. When citing a summary order in a document filed with the Second Circuit, a party must cite either the federal appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

** Lawson v. Hilderbrand, 88 F. Supp. 3d 84

*** The doctrine allows appeals from interlocutory rulings (i.e., rulings preceding a final judgment) so long as those rulings conclusively decide an issue separate from the merits of the case [See Cohen v Beneficial Industrial Loan Corp., 337 U.S. 541].

The 2^nd Circuit’s decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-1d5c59846bb/16/doc/15-653_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-81d5c59846bb/16/hilite/

New national study reports “Saving for College” 529 plan costs “state by state”

New national study reports “Saving for College” 529 plan costs “state by state”

Source: Study by Joseph Hurley, Savingforcollege.com

This 2016 study notes that New York's 529 College Savings Program “offers the lowest-cost 529 plan among plans that charge the same fee across the entire menu of investment options. Its total 10-year costs are $205, representing an annual fee of only 0.16%.” Also, New York does not charge 529 program participants an annual fee.

Highlights from the study are posted on the Internet at:

 http://www.savingforcollege.com/articles-professional/finding-the-lowest-cost-529-savings-plans?utm_source=SFC_ProUpdate&utm_medium=SFC_ProUpdate&utm_campaign=SFC_ProUpdate_March012016

The complete study is posted on the Internet at:

http://www.savingforcollege.com/529_fee_study/index.php

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Admin. For Children’s Services v Berrios, OATH Index #124/16

Giselle Berrios, a child protective specialist, employed by the Administration for Children’s Services [ACS], was served with disciplinary charges alleging that she failed to appear at family court hearing concerning a case under her supervision at the time scheduled and raising her voice at an agency attorney when questioned about the case.

Berrios admitted to having forgotten to appear at family court, but denied yelling at the agency attorney.

ALJ Astrid B. Gloade found that Berrios' testimony was not credible. The ALJ noted that the case had been on the court’s calendar almost every week because the judge was closely monitoring ACS’s response to numerous concerns that had been raised about the family’s well-being.

In contrast, the ALJ found that the attorney's testimony was corroborated by a contemporaneous telephone complaint and an e-mail to Berrios' supervisor after the incident.

In addition, Judge Gloade noted that “even were I to credit [Berrios’] explanation [that she forgot the court appearance], her forgetfulness does not excuse her failure to appear in court.”

Given the nature of the proven misconduct, as well as Berrios’ disciplinary history for rudeness and insubordination, the ALJ recommended that Berrios be suspended without pay for 55-days.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16-124.pdf

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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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