Name clearing hearings

Name clearing hearings

Chang v Department of Educ. of the City of New York, 2016 NY Slip Op 02018, Appellate Division, First Department

The New York City Department of Education [Department] terminated Tzefang Frances Chang’s contract as a bilingual speech pathologist. Chang brought an Article 78 action challenging the Department’s action.

Supreme Court dismissed Chang’s petition after finding that the agreement between the Department and Chang gave the Department “the unconditional right to terminate the contract without cause and that such contract termination clauses are enforceable.”*In addition, the court said that the Department was not required to accept Chang's claims concerning the events that triggered the Department’s action. The Appellate Division sustained the lower court’s ruling.

Another element in this action concerned Chang’s demand for a “name-clearing hearing.” The Appellate Division held that Chang was not entitled to a name-clearing hearing as she presented no evidence to refute the statements of the Department’s Director of Employee Relations that “the code” placed on Chang's personnel file was for internal use only, and therefore she failed to show a likelihood of public dissemination of the material she alleged was “stigmatizing.”

In Swinton v Safir, 93 NY2d 758, the Court of Appeals held that with respect to an employer providing a former employee with a “name clearing hearing,” the material in the individual’s personnel records objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” Further, the individual seeking such a hearing carries the burden of proof and must show the “stigmatizing nature” of the information and its publication to the public.

Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.

In any event, a name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Prevailing at a name-clearing hearing does not entitle the individual to reinstatement to his or her former position.

* Presumably an employer’s “unconditional right” to terminate a contract employee would not extend to insulating the employer from liability if it terminated the individual for a constitutionally impermissible reason or purpose.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02018.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 

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Selected reports issued by the Office of the State Comptroller during the week ending March 26, 2016

Selected reports issued by the Office of the State Comptroller during the week ending March 26, 2016

Click on text highlighted in color to access the entire report 

Municipal Audits released:

Town of Hempstead Sanitary District No. 1 - Selected Financial Activities 

Niagara Falls Water Board – Financial Management 

City of Olean – Procedures Related to Obligations to Fund Operating Deficits 

School Audits released: 

Burnt Hills-Ballston Lake Central School District – Leave accruals and separation payments 

Ellenville Central School District – Financal Condition 

Lake Pleasant Central School District - Payroll 

Mount Pleasant-Blythedale Union Free School District – Short-Term Borrowing and Purchasing 

Pelham Union Free School District – Reserve Funds 

Mobil must include Climate Change Resolution in Shareholder Vote
Comptroller Thomas P. DiNapoli, as Trustee of New York State Common Retirement Fund, and the Church of England co-filed a shareholder proposal at ExxonMobil in December, asking the company to assess how the worldwide effort to rein in global warming would impact its business. In response, ExxonMobil sought clearance from the Securities and Exchange Commission (SEC) to block DiNapoli’s proposal from a shareholders’ vote at its annual meeting. Wednesday, the SEC rejected that request.

http://www.osc.state.ny.us/press/releases/mar16/032316c.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160327&utm_campaign=pension+fund 

Agreements reached on Corporate Political Spending
New York State Comptroller Thomas P. DiNapoli announced that five Fortune 500 companies – Coca-Cola Enterprises, Raytheon, Waste Management, Union Pacific and Centerpoint Energy – have agreed to the New York State Common Retirement Fund’s request that they publicly report all direct and indirect corporate political spending.

http://www.osc.state.ny.us/press/releases/mar16/032316c.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160327&utm_campaign=pension+fund

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