Members of the public are deemed to have knowledge of an agency’s administrative action that has been posted on the Internet

Members of the public are deemed to have knowledge of an agency’s administrative action that has been posted on the Internet 
Eskridge v Nassau County BOCES, Decisions of the Commissioner Education, Decision No. 16,932

Meredith Eskridge appealed the decision of the Board of Cooperative Educational Services of Nassau County [BOCES] denial of her request to be placed on the preferred eligibility list for a position as a teacher of deaf and hard of hearing. 

Earlier BOCES had advised Eskridge that the Bethpage Union Free School District was “taking back” the program of hearing impaired services and that “her seniority, tenure and sick days would move with her.” Bethpage appointed Eskridge with tenure in the special subject tenure area of Education of Deaf Children effective October 12, 2011.  On August 25, 2011, Bethpageappointed Eskridge as a teacher in the general special education tenure area, subject to the satisfactory completion of a two year probationary period.

On January 3, 2012, BOCES appointed Amanda Pirolo to the position of Teacher-Deaf and Hard of Hearing - Hearing and Vision Services-Special Education Program.

Bethpage terminated Eskridge’s .4 probationary appointment in the special education tenure area effective February 28, 2012, thereby reducing her employment with the district to a .6 tenured part time position in the special subject tenure area of education of deaf children. 

Eskridge challenged BOCES decision not to placing her name the preferred list by initiating an Article 78 proceeding in Nassau County Supreme Court. She contended that BOCES had violated Education Law §3014-b by failing to place her on the preferred eligibility list and failing recall her to a position as teacher of the deaf in its “Deaf  and Hard of Hearing-Hearing and Vision Services-Special Education” Program.  The court dismissed her petition on jurisdictional grounds and referred the matter petition to the Commissioner of Education for determination. The Commissioner assumed jurisdiction.

In response to Eskridge’s allegations Bethpageargued that:

1. Eskridge failed to properly serve Amanda Pirolo with a copy of her petition; 
2. Pirolo’s name should be removed from the petition because she has not been employed by BOCES as a teacher of the deaf since 2012;
3. Eskridge failed to name the current holder of the position, Paula Hastings, in the caption of her appeal and therefore she has failed to join necessary parties;
4. Eskridge’s appeal was untimely; and
5. Eskridge “failed to state a claim.”

Addressing the issue to timeliness, the Commissioner ruled Eskridge’s petition was timely, explaining that “[a]n unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within 30 days of receipt of the [court’s] determination.”

Ultimately many of the technical defects in Eskridge's appeal were cured consistent with the advisory given to Eskridge by the Commissioner’s Office of Counsel that “if the corrected version was served and filed within two weeks of July 3, 2012, the appeal would be deemed to have been initiated on the day a copy of the returned petition was personally served upon respondents.” Eskridge complied and as the original petition was served on the BOCE respondents within 30 days of the Supreme Court’s decision, the Commissioner deemed the appeal timely.

Pirolo’s answer stated that she has not been employed by BOCES as a teacher of the deaf since June 2012 and that Paula Hastings was appointed by BOCES to such a position on or about October 23, 2012. Accordingly, the Commissioner ruled that with respect to Pirolo was moot.

However, said the Commissioner, Eskridge’s appeal with respect to BOCES’s refusal to add her name to the preferred list was not moot but Eskridge’s appeal was dismissed “for failure to join a necessary party.”*

In response to a request from the Commissioner’s Office of Counsel, BOCES had provided a copy of the minutes from the BOCES October 23, 2012board meeting. The minutes reported that Hastingswas appointed to the position effective October 15, 2012. The Commissioner said that Eskridge’s contention that she was not aware of Hastings’ appointment was unpersuasive as the relevant information was reflected in the Board’s minutes and “publicly available on BOCES’s website.”** 

Dismissing Eskridge’s appeal regarding BOCES appointment of Hastings as untimely, the Commissioner explained that “this appeal was commenced in July 2013, more than eight months after Hastingswas appointed and Pirolo was no longer serving in the position at that time. As Hastingswould be adversely affected by a determination in favor of Eskridge, the Commissioner held that the appeal must be dismissed for failure to join Hastingsas a necessary party. 

Observation: Assuming, but not deciding, that Eskridge accepted a full-time position with the Bethpage Union Free School District, the precedent followed in such situations is that upon acceptance of a full-time position with a School District in compliance with Education Law §3014-b, the individual does not have a right to remain on a preferred eligible list at BOCES. In earlier Decisions of the Commissioner it was held that Education Law §§2510 and 3013 are designed to protect the rights of teachers whose positions are abolished generally. In contrast, Education Law §3014-b is intended to protect the rights of BOCES teachers whose positions are eliminated specifically because of program takebacks. When a teacher is excessed because of a BOCES program takeback, §3014-b(1) provides that " . . . each teacher employed in such a program by such a board of cooperative educational services at the time of such takeover by the school district shall be considered an employee of such school district, with the same tenure status he [or she] maintained in such board of cooperative educational services." 

* A necessary party is a party whose rights would be adversely affected by a determination of an appeal in the petitioner's favor, here Paula Hastings.

**A footnote in the Commissioner’s decision provides a link to the BOCES “Agenda for the Regular Meeting of Tuesday, October 23, 2012” which sets out on page 69 of a “BOCES packet” a reference to a personnel action involving Hastings. See

http://nassaubocesny.iqm2.com/Citizens/FileOpen.aspx?Type=1&ID=1149&Inli... (link is external) 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d16932

___________________

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

___________________  

Seeking documents that the custodian of the records contends may be denied pursuant to one or more Freedom of Information Law “exemptions from disclosure”

Seeking documents that the custodian of the records contends may be denied pursuant to one or more Freedom of Information Law “exemptions from disclosure”

Rose v Albany County Dist. Attorney's Off., 2016 NY Slip Op 05536, Appellate Division, Third Department

Nakia Rose was convicted of numerous crimes* People v Rose, 72 AD3d 1341 [2010], lv dismissed 16 NY3d 745 [2011]). He thereafter submitted a Freedom of Information Law (Public Officers Law Article 6 [FOIL]) request to Albany County District Attorney's Office [ODA] seeking the disclosure of "29 categories of documents relating to the criminal investigation that led to his conviction."**

The Office of the District Attorney [ODA] denied the request for the documents, and Rose  initiated this CPLR Article 78 proceeding. Although Rose subsequently received some of the requested documents, Supreme Court sustained OAD's denial of other documents. Rose appealed and the Appellate Division remitted the matter to Supreme Court for an in camera*** inspection of the documents with regard to two groups of documents that Rose had requested consisting of:

[1] "[a]ll notes, memos, teletypes, letters, records, and other communications to/from the State police, Albany police, Albany Dept. of Public Safety, or federal authorities regarding [petitioner] and/or the investigation underlying the charges against him;" and

[2] "[a]ll letters or communications written by any employee of [the ODA], or on its behalf, to any governmental agency or private entity concerning any prosecution witness, including but not limited to letters and communications to the Division of Parole, Probation Department, Human Resources Administration, NYC Housing Authority, Department of Homeland Security, and Immigration."

Supreme Court then conducted an in camerainspection of all 257 documents in the two groups provided by the ODA. Providing a detailed description of each document and the basis for the disclosure or nondisclosure of each of the 257 documents, the court concluded that 32 of the documents were subject to disclosure in redacted form and dismissed Rose’s petition with regard to the remaining documents. Supreme Court also denied Rose's request for attorney fees.

Responding to Rose’s appeal of this ruling by Supreme Court, the Appellate Division rejected Rose’s contention that he was entitled to disclosure of all of the documents as the result of “an alleged failure by Supreme Court to provide sufficient factual explanation for its determination as to each document.” The court explained that it was well established that Rose’s entitlement to the documents depends upon whether ODA did or did not meet its burden of establishing that the documents fall within an exemption to a FOIL disclosure and Rose’s “entitlement” to any of the documents was not dependent on the specificity of a “trial court's written findings.”

The Appellate Division also held that Supreme Court had properly limited its scope of review in accordance with its earlier “unambiguous directive that the scope of remittal was limited to addressing whether or not documents responsive to [Rose’s] request … were exempt from disclosure.”

In addition, the Public Officers Law §87(2)(g) exempts inter-agency or intra-agency materials from FOIL disclosure to the extent that such materials do not contain "(i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; [or] (iii) final agency policy or determinations." This exemption for inter-agency or intra-agency materials, said the Appellate Division, "applies to 'opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making,’" agreeing with Supreme Court that the ODA met its burden of establishing that documents at issue were exempted inter-agency or intra-agency materials.

However, said the Appellate Division, Supreme Court should have directed the disclosure of documents which were not sought to be exempted by the ODA and it should not have relied on a justification for withholding documents that was not advanced by the ODA.

As to the "safety exemption" set out in Public Officers Law §87[2][f] the Appellate Division indicated rather than withholding certain of the documents entirely, they could be disclosed subject to appropriate redactions.

As NYPPL has noted in earlier summaries of court and administrative decisions involving FOIL requests, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute. 

Submitting a formal FOIL request is necessary only in the event the custodian of the public record[s] sought declines to simply provide the information or record requested. In such cases the individual or organization must file a formal FOIL request in order to obtain the information. 

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. Further, in some instances, however, a statutory exception may have “sublimated” as the Appellate Division observed in DeFreitas v New York State Police Crime Lab., 2016 NY Slip Op 05676, quoting Matter of Lesher v Hynes, 19 NY3d 57, “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies because petitioner's criminal proceedings and judicial review have concluded.”

* See People v Rose, 72 AD3d 1341

** The facts of that case are more fully discussed in a previous decision by the Appellate Division, Ross v Albany County Dist. Attorney’s Office, 111 AD3d 1123, Leave to appeal dismissed, 16 NY3d 745, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07796.htm .

*** A review of the document by the court “in private.”

The decision in Rose v Albany County Dist. Attorney's Off.,2016 NY Slip Op 05536, is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_05536.htm

Simplifying the task of locating, screening and vetting an expert as well as an individual noting his or her availability to serve as a qualified expert

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Are you looking for an expert to assist with litigation, business, or operations? Are you looking for an opportunity to announce your availability to serve as an expert?

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Searching for an expert using Expert Institute’s services is easy. The Expert Institute’s growing directory includes, but is not limited to, experts in business operations and services; education; finance and financial services; intellectual property; law, rules and regulations; medicine; retail operations; and technologies.

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Interested in serving as an expert co to https://www.theexpertinstitute.com/become-an-expert/for information about becoming a member of the Expert Institute's network. As to the cost involved, there are no charges or fees associated with applying for, or being listed on, the Institute’s directory of experts. Further, the Institute takes no part in the expert's financial arrangements with his or her client nor is it involved in invoicing the client for the services provided by the expert.

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Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law Judges

Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law Judges

Making false and misleading statements in an official report

OATH Index No. 1619/16

A correction officer [Officer] was charged with making false and misleading statements in a written report concerning force used by another correction officer against an inmate. Video showed that the other officer pulled the inmate’s arm through the food slot and hit the inmate at least once. The Officer’s report stated that there was an “altercation” and included the word “arm” to indicate where force was applied.

Administrative Law Judge John B. Spooner found that Officer’s report was deficient because it did not provide the detail required by the use-of-force directive  but that it was not intentionally false,. Judge Spooner dismissed the charge that Officer did not report that the other officer had struck the inmate because there was insufficient proof that Officer saw a blow.

The ALJ recommended Officer be suspended without pay for 5 days. 

The decision is posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1619.pdf

Improperly indicating availability for working overtime

OATH Index No. 2741/15

OATH Administrative Law Judge Kevin F. Casey found that a carpenter improperly documented his overtime availability, did not respond to his supervisors’ phone calls regarding availability for overtime, failed to keep his supervisor’s informed about his progress on assignments, disobeyed instructions for filling out timesheets, and refused to comply with orders to refrain from adding extraneous comments to work tracking forms.

Judge Casey recommended that the carpenter be suspended without pay for 20 days.

The decision is posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2741.pdf

__________________

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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Attempting to avoid disciplinary action

Attempting to avoid disciplinary action

2016 NY Slip Op 05608, Appellate Division, Third Department

A New York State Trooper [ST] was allegedly involved in "an incident" in the course of performing official duties. The Internal Affairs Bureau of the Division of State Police [IBA] investigated the incident and recommended that "appropriate administrative action" be taken against ST. Two days after the IAB issued its report, but before any formal disciplinary charges were served on ST, ST submitted a notice of his "intent to retire."

ST subsequently applied for an identification card indicating that he was a State Police Retired Member.* The Superintendent rejected ST’s application for such an identification card after concluding that  ST "had engaged in serious misconduct and retired in order to avoid disciplinary action.” Accordingly, the Superintendent explained, ST had not retired in good standing

ST commenced a CPLR Article 78 proceeding, claiming that the Superintendent’s determination was arbitrary and capricious and without a rational basis because ST “was not facing any charges of serious misconduct at the time that he retired.”

The Appellate Division affirmed the Supreme Court’s dismissal of ST’s the petition, explaining that the court’s review of an Article 78 challenge to an administrative determination such as the one brought by ST was limited to whether the administrative determination was arbitrary and capricious, lacked a rational basis or was affected by an error of law. Further, said the Appellate Division, a court would not substitute its judgment for that of the appointing authority if that conclusion was reasonably supported by the record.

The court's decision notes that in denying ST’s request for the identification card, the Superintendent considered the IAB's report and ST’s personnel records. These records  indicted that [1] ST had been "the subject of recent counseling and below standard performance ratings" and [2] ST had been the subject of “six founded personnel complaints” during his tenure as a trooper and was "the subject of a pending personnel complaint” at the time of his retirement.

The Appellate Division said that the record established that although disciplinary charges had not been served upon ST prior to his submitting a notice that he intended to retire, the formal submission of his notice of an intention to retire "effectively suspended any internal disciplinary proceedings against him."**

Although ST denied that he engaged in misconduct or retired to avoid disciplinary action, the Appellate Division concluded that the record supported the Superintendent's determination that ST was not eligible for the requested identification card because he engaged in serious misconduct shortly before his retirement and did not retire in good standing.

Finding that the Superintendent’s determination was not arbitrary and capricious nor lacking in a rational basis, the Appellate Division declined to disturb it.

* The significance of the possession of such identification is that 18 USC §926C provides that "an individual who is a qualified retired law enforcement officer and who is carrying the identification required . . . may carry a concealed firearm." Executive Law §231, amended  effective January 20, 2015, provides that Superintendent of State Police "shall develop and distribute uniform identification cards to all sworn members of New York [S]tate [P]olice, upon such members' retirement in good standing" and the phrase "retirement in good standing" means that the State Police member "retired from his or her employment for reasons other than the avoidance of disciplinary charges."

** 4 NYCRR 5.3 Resignation, provides, in pertinent part, that when charges of incompetency or misconduct have been or are about to be filed against an employee of the State as the employer, the appointing authority may elect to disregard the resignation filed by the employee and to prosecute such charges and, in the event that the employee is found guilty of such charges and the penalty imposed is dismissed from the service, his or her termination "shall be recorded as a dismissal rather than as a resignation." Many local civil service commissions have adopted a similar rule. The decision in Blair v Horn, 2008 NY Slip Op 32581(U) [Not selected for publication in the Official Reports] suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b). See, also, Elmira CSD v Newcomb, 266 AD2d 622, motion for leave to appeal dismissed, 94 NY2d 899.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05608.htm

From the LawBlogs – Week ending July 16, 2016

From the LawBlogs – Week ending July 16, 2016

[Internet links highlighted in color]

Posted by Justia

Unlawful discrimination - Race

Riley v. Elkhart Cmty. Schs.U.S. Court of Appeals for the Seventh Circuit Docket: 15-3166

Elkhart Community Schools (ECS), has employed Riley, an African‐American female, as a teacher since 1980. She has an administrator’s license and is pursuing her doctorate in education. In 2010, she was named the ECS Teacher of the Year. From 2005-2013, Riley unsuccessfully applied for 12 different administrative positions with ECS. Riley filed an Equal Employment Opportunity Commission charge, claiming that race, sex, and age discrimination were the reasons that ECS had not promoted her. The EEOC sent Riley a right to sue letter. Riley filed suit, alleging race, sex, and age discrimination. The district court granted summary judgment for ECS on all counts, dismissing some claims on procedural grounds, and dismissing the remaining claims because Riley had failed to produce sufficient evidence. The Seventh Circuit affirmed. Of the positions for which action was not time-barred, one was given to an African-American woman; Riley did not apply for two; and one position was a lateral move so that Riley did not suffer an adverse employment action. Riley did not produce evidence of pretext with respect to other positions. ECS produced the list of factors that the screening committee considered in recommending candidates.

Unlawful discrimination – sexual orientation

Hively v. Ivy Tech Cmty. Coll. U.S. Court of Appeals for the Seventh Circuit Docket: 15-1720

Hively began teaching as a part‐time adjunct professor at Ivy Tech in 2000. In 2013, she filed a charge with the Equal Employment Opportunity Commission (EEOC) claiming that she had been “discriminated against on the basis of sexual orientation” as she had been “blocked from fulltime [sic] employment without just cause.” After exhausting the procedural requirements in the EEOC, she filed suit, pro se, under the Civil Rights Act of 1964, 42 U.S.C. 2000e (Title VII). The district court dismissed. The Seventh Circuit affirmed. Title VII does not apply to claims of sexual orientation discrimination. The court relied on precedent, but acknowledged the EEOC’s criticism of its position and that “It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.”

Constitutional rights of students – expectations of privacy

Ziegler v. Martin Cnty. Sch. Bd.,  U.S. Court of Appeals for the Eleventh Circuit Docket: 15-11441

Plaintiffs filed suit alleging that defendants violated students' constitutional rights when they detained the students for breathalyzer tests prior to entering their Junior/Senior Prom. The district court granted summary judgment for defendants. The court concluded that plaintiffs have not established an actual or reasonable expectation of privacy in the party bus, which they had abandoned once they had exited for the Prom; the bus driver had apparent authority to consent to search the party bus; and therefore, the search of the party bus did not violate plaintiffs' Fourth Amendment rights. The court also concluded that the initial waiting period for the breathalyzer mouthpieces and a trained individual to administer the breathalyzer tests was reasonable, because it was necessary for the testing; detaining a student after he or she was found to be alcohol free was not “reasonably related” to the reason for the detention “in the first place” of determining if the student passengers on the party bus had been drinking; the individual school defendants are entitled to qualified immunity because there was no binding clearly established law at the time; and claims against the remaining defendants have been abandoned or have no merit. The court rejected plaintiffs' remaining claims. Because plaintiffs have not established that they should succeed on any of their allegations concerning their Fourth, First, and Fourteenth Amendment claims, the court affirmed the judgment.

Selected reports issued by the Office of the State Comptroller during the week ending July 30, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 30, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Audits of Local Governments and School Districts

Afton Central School District –Management of Fund Balance and Reserves (2016M-134)

[read complete report - pdf]

Chateaugay Central School District – Leave Accruals (2016M-149)

[read complete report - pdf]

Deer Park Union Free School District – Bank Reconciliations (2016M-166)

[read complete report - pdf]

East Syracuse Minoa Central School District – Financial Software Access Rights (2016M-41)

[read complete report - pdf]

Edwards-Knox Central School District – Transportation State Aid and Reserve Funds (2016M-151)

[read complete report - pdf]

Falconer Central School District – Financial Management (2016M-146)

[read complete report - pdf]

Fayetteville-Manlius Central School District – Claims Audit Process (2016M-196)

[read complete report - pdf 

Granville Central School District – Fund Balance (2016M-114)

[read complete report - pdf]

Herkimer-Fulton-Hamilton-Otsego Board of Cooperative Educational Services– Claims Audit Process (2016M-185)

[read complete report - pdf]

Lancaster Central School District – Financial Condition (2016M-101)

[read complete report - pdf]

Odessa-Montour Central School District – Financial Condition (2016M-71)

[read complete report - pdf]

Union-Endicott Central School District – Financial Management (2016M-100)

[read complete report - pdf]

Victor Central School District – Information Technology (2016M-117)

[read complete report - pdf]

Town of Webb Union Free School District – Fund Balance (2016M-140)

[read complete report - pdf]

William Floyd Union Free School District – Payroll (2016M-156)

[read complete report - pdf]

Wyoming Central School District – Financial Management (2016M-67)

[read complete report - pdf]

Determining the status and rights of an employee in the public service terminated from his or her employment

Determining the status and rights of an employee in the public service terminated from his or her employment

Hanson v Crandell, 2016 NY Slip Op 05604, Appellate Division, Third Department

The Supreme Court dismissed William A. Hanson’sCPLR Article 78 petition seeking a review a determination of Commissioner of the Schoharie County Department of Public Works [Appointing Authority] terminating Hanson’s employment with the Department. This case provides an opportunity to examine the combinations and permutations of appointment to and tenure status in positions in the public service in New York State.

Hanson was initially employed by the Appointing Authority as Lead Cleaner, a position in the noncompetitive class of the classified service, and served in that title until December 24, 2012 at which time the position became “unfunded” and his employment in that title was discontinued.

Analysis: This appears to be a “layoff situation.” However, employees of a political subdivision of the State are not within the ambit of §80-a of the Civil Service Law which applies only to the suspension or demotion of employees of the State as the employer upon the abolition or reduction of  State positions in the non-competitive class. Employees of a political subdivision of the State may have “layoff rights” as the result of collective bargaining pursuant to Article 14 of the Civil Service Law [the Taylor Law] or a local law, rule or regulation enacted by a political subdivision of the State adopted prior to the effective date of the Taylor Law.

Hanson was appointed Mechanical Equipment Operator I [MEO] by the Appointing Authority effective December 24, 2012. The MEO position was also a position in the noncompetitive class and Hanson's appointment was subject to his successfully completing a probationary period of not less than eight weeks nor more than 52 weeks in accordance with Schoharie County's Civil Service rules.

An interim probationary service report indicated that Hanson’s job performance was satisfactory and stated that his probationary period was set to expire on December 23, 2013. About December 19, 2013, Hanson was given a “final probationary report” that stated that his performance was unsatisfactory and included the recommendation that he be terminated from his MEO position. The next day Hanson was informed that his employment was terminated effective December 21, 2013.

The employee organization representing Hanson filed grievances upon his behalf alleging that that Hanson was improperly denied an exit interview and that his termination was without just cause. The County's Board of Supervisors, however, denied both grievances, and a subsequent demand to arbitrate those grievances was withdrawn by the employee organization.

Hanson initiated an Article 78 action alleging that his discharge was in bad faith, constituted an abuse of the Appointing Authority's discretion and was arbitrary and capricious. Ultimately, Supreme Court dismissed Hanson’s application, finding that he failed to demonstrate that the Appointing Authority acted arbitrarily or in bad faith. Hanson appealed the Supreme Court’s ruling.

The Appellate Division indicated that Hanson’s primary arguments on appeal were as follows:

1. He was transferred to the MEO position and, therefore, he acquired certain rights.

Analysis: The decision reports that an affidavit provided by the County's deputy personnel director “makes clear that the transfer provisions embodied in Schoharie  County's Civil Service Rules apply only to competitive class appointments,” i.e., Rule XVI, Transfers, provides, in pertinent part, “any individual serving in a competitive class position as a permanent appointee may be permanently appointed to another competitive class position subject to these rules without further competitive examination.,”

In any event, Hanson’s reliance on “transfer” as the personnel transaction involved was misplaced. The term “transfer” describes the movement of an employee from one agency to another agency under the jurisdiction of a different appointing authority and typically requires the approval of the employee and both appointing authorities.

In contrast, the term “reassignment” is used to describe the movement of an employee from one position to another position with the same or a similar title under the jurisdiction of the same appointing authority and does not require the consent of the individual.

Clearly Hanson was not “transferred” as he was appointed to a position under the jurisdiction of the same appointing authority, nor does it appear that he was “reassigned.” Although the positions of Lead Cleaner and Mechanical Equipment Operator I are both positions in the noncompetitive class, they involve significantly different duties. Accordingly Hanson's appointment to the MEO position was to a new title, with new duties, and thus subject to his satisfactory completion of a probationary period in the new title.

2. He was a tenured employee at the time of his discharge.

Analysis: Although Hanson had been permanently appointed to the position of MEO, he had not yet completed his maximum period of probation prior to the effective date of his termination and thus he had not attained tenure* in the position. Civil Service Law §80, for example, illustrates the significance of an employee’s effective date of permanent appointment as it provides that “[w]here, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made.”

A similar provision is set out in Civil Service Law §80-a, which Section addresses the suspension or demotion of an employee of the State as the employer upon the abolition or reduction of non-competitive class State position.

Neither §80 nor §80-a set the date on which the individual initially attained "tenure" as the relevant date in determining his or her seniority for the purposes of layoff.

3. His "MEO probationary period" was improperly extended after the initial eight-week period.

Analysis: Hanson, said the Appellate Division, “admitted that, upon accepting the MEO position, he was placed on probation for a period of 52 weeks — with said probationary period to expire on December 23, 2013.” As the Appointing Authority did not provide Hanson with any written notice following completion of his minimum period of probation that his probationary term was successfully completed prior to December 23, 2013, he was a probationary employee on the effective date of his termination.**

It should also be noted that in Mendez v Valenti, 101 AD2d 612, the Appellate Division ruled that where the probationer has been given timely notice that he or she will be terminated because he or she had not satisfactory completed the probationary period, so long as the termination of a probationary employee is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

Turning to Hanson’s termination itself, the Appellate Division said that "[a] probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason."

Analysis: The Appellate Division said that it was satisfied that the Appointing Authority had complied with the relevant Schoharie County Civil Service Rules governing the evaluation and termination of probationary employees with respect to Hanson and its  “further review of the record otherwise fails to disclose any evidence of bad faith or an improper or impermissible reason for [Hanson's] discharge.”

Finally, the Appellate Division observed that “inasmuch as [Hanson] had not attained more than one year of continuous, full-time service in the MEO position at the time of his discharge, he could not avail himself of the discipline-for-just-cause provisions of the collective bargaining agreement between the County and his bargaining representative.”

Analysis: In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows:“After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

In contrast, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement, As the Court of Appeals held in York v McGuire, supra, 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.
 
* Although Schoharie County Civil Service Rule XIII (1)(e) provides that "[a]n appointment shall become permanent upon the retention of the probationer after his/her completion of the maximum period of probation or upon earlier written notice following completion of the minimum period of probation that his/her probationary term is successfully completed," it would be more accurate were the rule to read “shall become tenured in the position upon the retention of the probationer after his/her completion of the maximum period of probation” [emphasis supplied]. An individual appointed to an unencumbered position in the competitive class from an eligible list holds a “permanent status” on the effective dates of his or her appointment, subject to attaining tenure in the position upon satisfactory completion of his or her probationary period. See, also, Snyder v Civil Service Commission, 75 NY2d 981, which addresses the tenure status of a person upon his or her "contingent permanent appointment" to a position in the competitive class.

** Except where a probationary employee attains tenure by estoppel or "acquisition," or a provision of law addressing the right of an individual to continue to hold tenure upon the jurisdictional reclassification of he or her position [See for example: Fornara v Schroeder, 261 NY 363, Education Law §365-a.10(a) and Civil Service Law §45], specific action by the appointing authority granting tenure to the probationary employee prior the competition of his or her maximum period of probation is required.  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05604.htm

The evolution of New York’s whistle blower laws protecting public officers and employees

The evolution of New York’s whistle blower laws protecting public officers and employees

Castro v City of New York, 2016 NY Slip Op 05615, Appellate Division, First Department

In his notice of claim dated November 17, 2012, Robert J. Castro alleged that, on August 22, 2012, he was improperly terminated as a Manager and Certified Fire Safety Director by the New York City Department of Homeless Services [City] because, he refused to make false certifications. By letter dated November 26, 2012, the City acknowledged receipt of the claim. In June 2013, Castro commenced this action, contending that he had been subjected to “an improper termination claim under Labor Law §740 (the Private Sector Whistleblower Law).” and sought reinstatement and monetary damages.

The City moved to dismiss the complaint on the grounds that:

[1] Labor Law §740 is inapplicable to public employees; and

[2] Even if Castro had asserted a claim under Civil Service Law §75-b (the Public Sector Whistleblower Law), it would fail because his allegations did not satisfy the statutory prerequisites.

Castro then amended his complaint, repeating his original factual allegations to assert an improper termination claim under Civil Service Law §75-b, for which he sought only monetary damages.

Supreme Court granted the City's motion to dismiss the amended complaint on the grounds that: (i) the notice of claim did not give the City adequate notice of plaintiff's Civil Service Law §75-b claim because the statute was not cited and "improper termination" could be premised on a myriad of state and federal statutes or common law, each of which would require different inquiries during the investigation; and (ii) Castro had waived his right to pursue the Civil Service Law §75-b claim because he elected to initially commence the action pursuant to Labor Law §740 but withdrew that claim.

In response to Castro’s appeal the Appellate Division quickly disposed of the issue that Castro had “waived” his Civil Service Law §75-b rights, holding that Supreme Court “erred in finding that, by commencing this action pursuant to Labor Law §740, [Castro] waived his right to pursue his claims under Civil Service Law §75-b.” Accordingly, said the Appellate Division, it must consider whether a notice of claim is required for a Civil Service Law §75-b claim that seeks monetary relief and, if so, whether Castro’s claim is barred because he did not cite §75-b in his notice of claim.

General Municipal Law §50-e(1)(a) requires service of a notice of claim within 90 days after the claim arises "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation." General Municipal Law §50-i(1) precludes commencement of an action against a city "for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city," unless a notice of claim has been served in compliance with §50-e.

In Mills v County of Monroe, 59 NY2d 307, cert denied 464 US 1018,  the Court of Appeals held that an employment discrimination claim brought against a county under the Human Rights Law is subject to County Law §52(1)'s notice-of-claim requirement. Subsequently, in Margerum v City of Buffalo (24 NY3d 721 , the Court of Appeals held that the notice of claim requirements of General Municipal Law §§50-e and 50-i did not apply to the firefighters' disparate treatment racial discrimination claim under the New York State Human Rights Law.

In reaching this determination, the court stated  that "[h]uman rights claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i. Nor, said the court,  "do we perceive any reason to [so] encumber the filing of discrimination claims" in which a municipality is alleged to have violated the State’s Human Rights Law."

Considering the Margerum decision, the Appellate Division ruled that a notice of claim is not required for a Civil Service Law §75-b claim, explaining that “[a]s with the Human Rights Law claims that were the subject of Margerum, Civil Service Law §75-b claims are not tort actions under General Municipal Law §50-e and are not personal injury, wrongful death, or damage to personal property claims under General Municipal Law §50-i.

Thus, said the court, “there is no reason to encumber the filing of a retaliatory termination claim” pursuant to Civil Service Law §75-b, indicating that Civil Service Law §75-b shares significant similarities with the Human Rights Law.

Further, in Tipaldo v Lynn 76 AD3d 477 , affd 26 NY3d 204, the Appellate Division, First Department, “observed that retaliatory termination claims are analogous to the Human Rights Law for purposes of compensation because §75-b, Labor Law §740 and the Human Rights Law all have "the goal of remediating adverse employment actions which, if allowed, would undermine an important public policy."

In any event, the Appellate Division held that even if a “Notice of Claim” was required, the notice of claim filed by Castro was sufficient to allow the City to investigate his Civil Service Law §75-b claim, notwithstanding its not citing the section. Further, the test of the notice's sufficiency is whether it includes information sufficient to provide a municipal authority with an opportunity to investigate the claim and a court must look to “the circumstances of the case, and is not limited to the four corners of the notice of claim.”

Civil Service Law §75-b forbids retaliatory or personnel action concerning compensation, promotion, transfer, or evaluation of performance, by public employers against their employees who disclose to a governmental body information regarding violations of regulations that would present a specific danger to public health or safety. In this instance although Castro “did not specifically reference the ‘whistleblower’ claim, the notice of claim included enough information for the City to investigate the §75-b claim.”

Noting that the City was certainly aware that Castro's job duties at the Department of Homeless Services (DHS) required him to inspect homeless shelters and to certify that they were safe, a further investigation would have uncovered that he “refused to certify false statements about the safety of homeless shelters he inspected, that he complained to his supervisors about it, and that he was terminated after doing so.” In addition, said the court, the City failed to establish what prejudice, if any, it suffered as a result of the alleged defect in the notice of claim, which clearly alerted it to Castro's contention that his termination was improper.

The Appellate Division also rejected the City argument that Castro’s amended complaint must be dismissed because he failed to state a cause of action under Civil Service Law §75-b notwithstanding the fact that Castro “allegedly advised his immediate supervisor and an Assistant Commissioner of the alleged violations” because these individuals were not the "appointing authority" at DHS, and Castro never contended that he reported the alleged government misconduct to a governmental body outside of DHS.

In the words of the court, “[t]hese arguments are unavailing” as the language used in the statute is “a governmental body," which includes "a public employer," rather than "another" government body or "another" public employer, suggesting that “an employee is protected if he reports internally and/or externally.”

The Appellate Division also noted that Civil Service Law §75-b(2)(b), which then provided* that "For purposes of this subdivision, an employee who acts pursuant to this paragraph [requiring a good faith effort to first inform an appointing authority] shall be deemed to have disclosed information to a governmental body under paragraph (a) of this subdivision." The court said that the text “also suggests that an employee need not also report to an external agency” and the legislative history states that "[t]he employee receives the same protection when giving this notice [to the appointing authority] as if he or she had disclosed information to a governmental body."

Also noted by the Appellate Division was the Court of Appeals’ instruction in Tipaldo v Lynn, 26 NY3d 204, that "courts should use their discretion in determining whether the overall actions of the plaintiff constitute a good faith effort to report the misconduct" and here the overall efforts of Castro constitute a good faith effort to report the alleged misconduct as he complained not only to his supervisor but also to the Assistant Commissioner about DHS' attempts to cover up unsafe conditions at homeless shelters.

Finally, the Appellate Division cited Medina v Department of Educ. of the City of N.Y., 35 Misc 3d 1201, in which the trial court held that "[I]nternal complaints to the plaintiff's supervisor will be held sufficient to satisfy Civil Service Law §75-b absent a showing by the agency defendant as to why the complaint to the supervisor was insufficient, or that the petitioner could have or should have notified someone else in order to obtain corrective action".

The bottom line: The Appellate Division unanimously reversed Supreme Court order which had granted the City’s motion to dismiss Castro’s amended complaint on the law.

* The requirement that an employee first make a good faith effort to inform the "appointing authority" is set forth in Civil Service Law §75-b(2)(b), which provision was repealed on December 28, 2015, which was after the order appealed by Castro was rendered. Castro conceded that §75-b(2)(b) is applicable because it was in effect at the time he commenced the action. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05615.htm