Federal and State laws, rules and regulations control affecting public sector officers and employees engage in partisan political activities

Federal and State laws, rules and regulations affecting public sector officers and employees engage in partisan political activities

Sources: Internal Revenue Service publication, Hatch Act, New York State’s Ethics Commission, case law

Updated information published by the Federal, State and Local Government office of the Federal Internal Revenue Service explaining the reporting and withholding requirements for election workers is posted on the Internet at: https://www.irs.gov/Government-Entities/Federal,-State-&-Local-Governments/Election-Workers-Reporting-and-Withholding. The Internal Revenue Service also reminds public entities employing individuals to work in primary and general elections that specific statutes  apply to them, including whether they are covered by a "Section 218 Agreement".* 

In addition, certainpolitical activities of State and municipal employees whose employment is fully federally financed may be restricted by the Hatch Act [53 Stat. 1147].

Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election,** using official authority or influence to interfere with or affect the results of an election or nomination and directly or indirectly coerce contributions from subordinates in support of a political party or candidate.

Although a public officer or employee subject to the provisions of the Hatch Act may lawfully seek the nomination for partisan public office, he or she must resign from his or her public employment upon accepting the nomination.

Further, New York State’s Ethics Commission has issued an Advisory Opinion, Advisory Opinion No. 98-12, addressing the application of Public Officers Law §74 to State employees who work on political campaigns, including fundraising. It is posted on the Internet at http://www.jcope.ny.gov/advice/ethc/98-12.htm

Examples of case law include Pagan v Commissioner of Labor, 53 AD3d 964, in which the Appellate Division addressed the disqualification of an applicant for unemployment insurance benefits following his termination for accepting a designation to run as a candidate for the State Assembly, ruling that his employment was terminated due to misconduct.

The individual, employed by the New York City Housing Authority, had violated the Authority's  written policy prohibiting its staff members running for political office in a partisan election.

Noting that “It is well settled that "[v]iolation of an employer's reasonable policies may constitute disqualifying misconduct," the Appellate Division said that the Authority’s guidelines were established “to assure compliance with the Hatch Act (5 USC §1501 et seq.) and the City of New York’s Conflicts of Interest Board Rules.”

Another relevant decision, Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], holds that an individual otherwise entitled to a “due process disciplinary hearing” such as one provided by a Taylor Law Collective Bargaining Agreement or by a State Law such as Civil Service Law Section 75 or Section 3020-a of the Education Law, may be summarily removed from his or her position on the authority of a federal Merit Systems Protection Board determination. 

The Blackburne decision, which addressed the right of an individual to file a Taylor Law contract disciplinary grievance after the Merit Systems Protection Board directed his removal from his position for violating the Hatch Act, held that arbitration would offend public policy as it "would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

*If the election workers are covered by a Section 218 Agreement with the Social Security Administration (SSA), the terms of the Agreement will determine whether the payments are subject to FICA.

** A candidate seeking election to a school board is typically deemed to be seeking office in a “non-partisan” election.

Title VII, a “precise, complex, and exhaustive” statute, does not prohibit employment practices that are not specifically prohibited by the act

Title VII, a “precise, complex, and exhaustive” statute, does not prohibit employment practices that are not specifically prohibited by the act

Cooper v N.Y. State Dep’t of Labor, U S Circuit Court of Appeals, 2d Circuit, Docket #2015-3392

Winifred Cooper¸ a former New York State Department of Labor’s Director of Equal Employment Opportunity, filed suit against the Department alleging that the Department had unlawfully retaliated against her for opposing an employment practice prohibited by Title VII of the Civil Rights Act of 1964 and New York State’s Human Rights Law, Executive Law §§290 et seq.

In December 2012, Cooper learned that the Governor’s Office of Employee Relations [GOER] had developed a plan to “alter the means by which internal Equal Employment Opportunity [EEO] complaints were to be processed by state departments and agencies." 

In the words of the Circuit Court of Appeals, Cooper, “believing that the proposed changes materially conflicted with federal regulations because they would ‘subject the EEO complaint response process to political pressure,’ increasing the likelihood that workplace discrimination would go unredressed,” initiated a series of communications with her supervisors bring her concerns to their attention. Cooper’s position proved persuasive and GOER’s plan was altered in consideration of her views. 

Subsequently Cooper was terminated from her position. Alleging that her termination was “in retaliation for having lobbied against GOER’s proposal,”  Cooper sued. The federal district court dismissed her petition and the Circuit Court affirmed the lower court’s ruling.

The Circuit Court explained that Title VII’s anti-retaliation provision prohibits employers from “discriminat[ing] against any individual … because he [or she] has opposed any practice made an unlawful employment practice” within the meaning of 42 USC §2000e.* Further, said the court, “A plaintiff seeking to demonstrate that he [or she] engaged in protected activity need not show that the behavior he [or she] opposed in fact violated Title VII; he [or she] must, however, show that he [or she] “possessed a good faith, reasonable belief,” that the employer’s conduct qualified as an “unlawful employment practice” under the statute.”

However, said the court, the conduct Cooper opposed – the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims – is not a “practice made an unlawful employment practice” by Title VII nor could Cooper reasonably have believed otherwise. For these reasons Cooper was not entitled to the relief she sought.Accordingly, Circuit Court affirmed the district court's dismissal of her claims.

* As an example, the Circuit Court of Appeals noted, objecting to the employer’s failure to adhere to its own affirmative action program is not protected activity because such a failure is not an “unlawful employment practice” within the meaning of Title VII.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/87702623-71b7-4f51-8987-43915c823f47/6/doc/15-3392_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/87702623-71b7-4f51-8987-43915c823f47/6/hilite/

Challenging a decision to terminate a probationary teacher's employment

Challenging a decision to terminate a probationary teacher's employment

Decisions of the Commissioner of Education, Decision No. 16,894

William Floyd Union Free School District employed Matthew Nadolecki as a special education math teacher subject to his satisfactory completion of a three-year probationary period which was to run through September 28, 2013.  In April 2012 the superintendent advised Nadolecki that he would recommend that the board terminate Nadolecki’s services as a probationary teacher. 

Nadolecki requested a written statement of the reasons for the superintendent’s recommendation. The superintendent responded stated that his recommendation was based on Nadolecki’s failure to meet district expectations in the following areas: [1] ineffective and inadequate classroom teaching techniques; [2] ineffective implementation of lesson plans; [3] ineffective communication with parents; and [4] ineffective and sometimes inappropriate guidance for students. 

Via an April 18, 2012 email, Nadolecki initiated a Level 1 grievance pursuant to his collective bargaining agreement in which he stated that he was “grieving the efforts by the district to terminate [his] probationary appointment through dismissal.”  On April 23, 2012, the superintendent responded, repeating the reasons he had enumerated earlier and denied Nadolecki’s Level 1 grievance. Nadolecki then filed a Level 2 grievance, which grievance was denied on May 3, 2012.

At its May 22, 2012 meeting, the School Board considered the superintendent’s recommendation and voted to terminate Nadolecki’s probationary appointment, effective June 30, 2012. Nadolecki was advised of the board’s decision by letter dated May 24, 2012.

Nadolecki appealed the Board’s decision to the Commissioner of Education, contending that his termination was “in violation of the procedures set forth in the collective bargaining agreement, district policies and was otherwise retaliatory because of his alleged whistle-blowing activities.”  Nadolecki also argued that the Superintendent’s letter dated April 23, 2012 “did not comply with Education Law §3031.”

The School District maintained that it had complied with all applicable laws, including Education Law §3031, when it terminated Nadolecki and that Nadolecki’s petition failed to state a claim upon which relief may be granted.  In addition, the District said that [1] the Commissioner lacks jurisdiction over this appeal, [2] that petitioner lacks standing to bring this appeal and [3] that the appeal is untimely. In addition the District alleged that the April 23, 2012 notice complied with Education Law §3031.

Addressing a number of procedural issues, the Commissioner said that “It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Nadolecki had brought earlier filed a grievance at Level 1 in which he alleged that the district’s efforts to terminate him violated the collective bargaining agreement [CBA] between the School District and Nadolecki's employee organization; asserted that certain CBA provisions regarding evaluations and observations were not adhered to; asserted that he believes he was being terminated for not “staying under the radar;” and because of his participating in a “protected union activity”.

Unsuccessful at Level 1, Nadolecki next filed a Level 2 grievance and a final determination denying his Level 2 grievance was issued on May 3, 2012.* 

Succinctly, the Commissioner said the Nadolecki “claims that [the School District]  violated the provisions of the collective bargaining agreement, which were the subject of a prior grievance, must therefore be dismissed for lack of jurisdiction, citing Bd. of Educ., Commack UFSD v Ambach, 70 NY2d 501.

Nadolecki, in effort to persuade the Commissioner to assume jurisdiction in this appeal notwithstanding his initial election to seek a remedy as provided by the CBA, argued that because he commenced his grievance prior to his actual termination by the School District, the Commissioner should retain jurisdiction over this appeal.  However, said the Commissioner, Nadolecki was attempting to raise the same collective bargaining issues in this appeal as he raised in the grievance and the Commissioner rejected Nadolecki’s argument that because he only grieved School District’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues from his actual termination.

The Commissioner also observed that, in any event, Nadolecki claims would be dismissed under the doctrine of election of remedies.  The Commissioner explained that the commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of a subsequent appeal to the Commissioner involving the same issues.

Turning to the merits of Nadolecki appeal, the Commissioner pointed out that “ A board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.”

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. Nadolecki, said the Commissioner, failed to establish that he was terminated for a constitutionally impermissible reason, or in violation of a statutory proscription. 

While Nadolecki contended that he was terminated in retaliation for alleged "whistle-blowing", the Commissioner found that, on the record before her, he has not met his burden of establishing that his dismissal was in retaliation for whistle blowing. 

Although Nadolecki disagreed with the School District’s decision to terminate his services, the Commissioner ruled that he did not establish that the School District terminated his employment for a constitutionally impermissible reason or in violation of a statutory proscription, thus failing to meet his burden of proof.

Noting that Nadolecki alleged that the School District violated Education Law §3031 by failing to give him more than a general statement as to the reasons for his dismissal, the Commissioner rejected this claim, explaining that Nadolecki “has not established that [the School District] failed to comply with the requirements of Education Law §3031."

Further, said the Commissioner, “even if noncompliance were established, the remedy for a violation is not automatic reinstatement of a teacher to his former position, and equity does not require a board to provide a windfall to petitioner in the form of salary because he performed no services for the district after the termination date.”

The Commissioner then dismissed Nadolecki’s appeal in its entirety.

* Significantly, Nadolecki did not allege in this appeal that the union breached its duty of fair representation with respect to processing his grievance. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16894