Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty
2016 NY Slip Op 06184, Appellate Division, First Department

The Appellate Division reversed, on the law, Supreme Court’s denial of an CPLR Article 75 petition filed by a teacher seeking an order vacating that part of an arbitration award that terminated his employment as a tenured teacher. The matter was then remanded to the appointing authority for the imposition of a lesser penalty.

The evidence presented at the disciplinary arbitration hearing established that the teacher, an eighth-grade physical education teacher, had initiated conversations with at least two of his female students asking them "if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them" and accepted the phone number of one student's 23 year-old sister.

One student had testified that the teacher’s conduct made her feel "uncomfortable," and another said that his conduct "aggravated" her.

Of the 12 specifications filed against the teacher, the Hearing Officer dismissed five. Finding the teacher guilty of the seven remaining specifications, including an allegation that he had engaged in similar behavior in a previous school year, the hearing officer said that he had found the teacher “to be insufficiently remorseful, that his actions revealed ‘moral failings,’ and that, although termination might be ‘too severe,’ it was the only penalty that could ‘jolt’ [the teacher] into an understanding of the seriousness of his misconduct.”

In view of “all the circumstances of the case, including the lack of any prior allegations of misconduct [filed] against the teacher during 13 years of service and the fact that the misconduct does not violate any specific rule or regulation,” the Appellate Division said that it found the penalty imposed, termination, sufficiently “disproportionate to the offenses to shock the conscience” of the court.

Further, said the court, the teacher had never been warned or reprimanded regarding the conduct at issue, and, contrary to the conclusion of the Hearing Officer, “there is no evidence that a warning or reprimand or other penalty short of termination would not have caused [the teacher] to cease the objectionable conduct immediately.”

The Appellate Division panel adjudicating this appeal, Justice Tom dissenting, said although it shared some of Justice Tom’s concern regarding the teacher’s behavior and his failure to express any deeper understanding of the inappropriate nature of his actions, it did not agree that the law supports imposing the penalty of termination “at this time.”

The court noted that the Hearing Officer found only that the teacher had made "inappropriate inquiries of his 8th grade female students regarding their female relatives, in furtherance of a personal agenda having nothing to do with school or his responsibilities as a teacher." Further, said the majority, the Hearing Officer did not find that the teacher actually intended to, or did, have any “romantic/sexual interactions” with anyone nor was there any evidence that the teacher “had made any sexual comments to his students.”

In the words of the majority, the teacher “showed very poor judgment, but he has not been shown to have violated any law, or even any rule or regulation of the Department of Education,” explaining that its decision does not excuse the teacher’s behavior but merely directs imposing “a less serious punishment.”

However, warned the majority, should such behavior continue, termination of the teacher “may well be in order in the future.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06184.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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Determining the appropriate procedure to be followed when filing disciplinary charges against a police officer of a town

Determining the appropriate procedure go be followed when filing disciplinary charges against a police officer of a town

Town of Goshen v Town of Goshen Police Benevolent Assn., 2016 NY Slip Op 06090, Appellate Division, Second Department

§155 of the Town Law provides that charges brought against members of a police department that are subject to procedures prescribed by a town board "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

Subject to certain exceptions not here relevant, §75.4 of the Civil Service Law provides that disciplinary charges brought against an employee must be brought within 18-month of the occurrence of the alleged act or acts of incompetence or misconduct.

A Town of Goshen police officer was served with disciplinary charges pursuant to Local Law No. 1 of 2013 of the Town of Goshen. Local Law No. 1 had been enacted by the Town Board pursuant to the authority granted to it by Town Law §155.  

Significantly, the record established "that the disciplinary proceeding was untimely commenced more than 60 days after the Town Board learned the facts upon which the disciplinary charges were based."

Town of Goshen Police Benevolent Association [PBA] brought a hybrid proceeding pursuant to CPLR Article 75 seeking a court order declaring that the disciplinary charges against the police officer were time-barred as they were brought pursuant to Town Law §155 more than 60 after the alleged acts of misconduct were know to the Board.

The Town, on the other hand, contended that the disciplinary action had timely served within the  longer 18-month statute of limitations prescribed by Civil Service Law §75.4 “incorporated in the collective bargaining agreement” between the Town and the PBA.* The Town argued that the contract procedure controlled and the disciplinary charges had been timely served on the police officer as authorized by §75.4 of the Civil Service Law.

Supreme Court** agreed with the PBA that the disciplinary charges filed against the police officer were untimely as the statute of limitations set out in the Town Law rather than the Civil Service Law controlled and granted the PBA’s petition.

The Appellate Division affirmed the lower court's ruling, explaining that contrary to the Town’s claim that the statute of limitations set by §75.4 controlled, by enacting Local Law No. 1 the Town Board "affirmed that the subject of police discipline resides with it" and as a result "discipline" was a prohibited subject of collective bargaining between the Town and the PBA. In other words, the provisions dealing with disciplinary action set out in the collective bargaining agreement negotiated pursuant to the Taylor Law were a nullity.

In Town of Wallkill v CSEA, Town of Wallkill Police Department, 19 NY3d 1066, the Court of Appeals said that the discipline of police officers "may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." Accordingly, the Town of Wallkill's local law made police discipline subject to the Board's procedures and the mandates of Town Law §155 rather than the disciplinary procedures set out in a collective bargaining with respect to initiating and prosecuting a disciplinary action against a Town of Wallkill police officer.

* §76 of the Civil Service Law provides that §§75 and 76 of such law “may be supplemented,  modified or replaced by agreements negotiated between the state  and  an   employee  organization  pursuant  to  Article  14 of this chapter.”

** A summary of the Supreme Court’s decision is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/11/town-adopts-local-law-replacing.html

The Appellate Division’s decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06090.htm

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In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true

In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true

Kaplan v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06063, Appellate Division, Second Department

Constance Kaplan was serving with the New York City Department of Health and Mental Hygiene [HMH] as a temporary worker. She alleged that after notifying HMH that she had been sexually harassed by her supervisor during a training session and intended to sue under the relevant human rights laws she was terminated from her position. She also alleged that her dismissal constituted reprisal for taking action to seek redress for the supervisor’s alleged sexual harassment.

Supreme Court granted HMH’s motion to dismiss Kaplan's petition alleging sexual harassment pursuant to New York City’s Human Rights Law “for failing to state a cause of action." The court granted HLMH's motion after determining that Kaplan's failed to show that the behavior of her supervisor "constituted more than a petty slight or trivial inconvenience"

The Appellate Division disagreed with Supreme Court’s ruling and said that the lower court should have given Kaplan’s complaint a liberal construction and accepted all facts alleged in the complaint to be true. Further, said the court, a contention that the behavior being complained of “was a petty slight or trivial inconvenience” constituted an affirmative defense, which should be raised in HMH’s answer, and did not lend itself to a pre-answer motion to dismiss. 

A motion to dismiss, said the Appellate Division, “merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action.”

The Appellate Division also found that Supreme Court erred in dismissing Kaplan’s cause of action alleging retaliation within the meaning of both the State’s and the City’s human rights laws. 

Kaplan had alleged in her complaint that her employment was terminated approximately two weeks after she informed HMH of her claims of sexual harassment and advised it of her intent to sue. Viewed in the light most favorable to Kaplan, the Appellate Division concluded that these allegations stated a cause of action alleging retaliation within the meaning of the State’s Human Rights Law and New York City’s Human Rights Law, the latter being "more liberal that its state counterpart.”

HMH had also submitted several emails in support of its motion to dismiss which it contended established that Kaplan was not discharged from her employment. 

The Appellate Division said that the emails submitted by HMH did not establish that Kaplan’s allegation that she was discharged from her employment “is not a fact.” Again the Appellate Division found that “Supreme Court erred in determining that emails from [Kaplan] and her temporary employment agency constituted party admissions and were admissible under an exception to the hearsay rule,” as the emails HMH relied upon were not inconsistent with Kaplan’s position that she was terminated from her employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06063.htm

LawBlogs with a New York State focus

LawBlogs with a New York State focus

Source: Justia Practice Areas

Justia reports on 6,536 Blawgs in 74 subcategories of which there are 303 New York State LawBlogs listed.

The most popular NYS LawBlog "for all time" was “Real Estate Law Blog,” rank number 11 the 6.536 LawBlogs Justia follows.. It’s current postings are listed at: http://www.nyrealestatelawblog.com/

You may check out all the current NYS LawBlog listings on Justia “for all time” at

http://blawgsearch.justia.com/blogs/countries/united-states/new-york?page=1&sortby=popularity&dispmode=expanded&popmode=all

and quickly sign-up to “subscribe” to any LawBlogs of interest via a daily “feed” to receive postings on a continuing basis using the link provided for each LawBlog.

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Human Resources Admin. v Charleman, OATH Index No. 1653/16

In disciplinary proceeding conducted in accordance with §75 of the Civil Service Law,  New York City Office Of Administrative Trials And Hearings Administrative Law Judge Susan J. Pogoda recommended the termination of the employment of Desiree Charleman, an eligibility specialist with the New York City Human Resources Administration [HRA], after finding her guilty of failing to report her arrest for shoplifting, her fraudulently accepted food stamps, and her failing to report acceptance of public assistance rent checks from her sister. Judge Pogoda explained that Charleman’s dishonesty did not comport with the duties of her job.

The ALJ noted that the penalty of termination was recommended in a number of other similar disciplinary action such as in OATH Index No. 1381/03 in which the employee was terminated for failing to report purchase of rental income property as required by agency rules and OATH Index Nos. 542/99, in which three employees who failed to report income and received from $3,000 to $11,000 in public assistance to which they were not entitled.

Although Charleman had expressed remorse over her actions, Judge Pogoda found that while she was specifically informed when she was hired that, as a public assistance client she had an obligation to immediately inform her caseworker of her employment, she failed to do so. Also, said the ALJ, Charleman’s defense that she made mistakes because she was preoccupied with family issues during the relevant time period was inconsistent with her statement to an investigator that “she didn’t know why she kept redeeming the benefits”. In addition, Judge Pogoda found that although Charleman was subsequently notified by a mailed notice of a $600 recoupment claim for benefits, she continued to access her benefits without informing her caseworker of her current income.

The ALJ concluded that Charleman’s acceptance and redemption of benefits for up to nine months after she was employed by HRA, “when she must have known that she was not entitled to them, suggests a high level of dishonesty that is incompatible with continuing to be employed to manage public assistance benefits.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1653.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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Boston police officer union denied injunction to temporarily block body-worn camera test

Boston police officer union denied injunction to temporarily block body-worn camera test

By Dave Strausfeld, J.D.

Posted in Wolters Kluwer's WorkDayhttp://www.employmentlawdaily.com/

A union of Boston police officers was not entitled to an injunction to temporarily block implementation of a pilot program to test body-worn cameras, held a Massachusetts Superior Court judge. While the union sought the injunction to maintain the status quo during arbitration of the union’s grievance over the manner in which the body camera pilot program was implemented, the union did not show a likelihood of success on the merits of the case, especially because a Massachusetts statute grants police commissioners significant non-delegable control over officers’ uniforms and equipment. And the union did not make a showing of irreparable harm: While a recent Rand Corporation study indicated that body cameras are associated with increased assaults against police, other studies have reached different conclusions (Boston Police Patrolmen’s Association, Inc. v. City of Boston.

Mr. Straisfeld’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/boston-police-union-cant-get-body-camera-program-temporarily-enjoined/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

© 2016 CCH Incorporated. All rights reserved. The foregoing summary is reprinted with permission. This article was published in Wolters Kluwer Daily Reporting Suite on September 14, 2016. For more information, please click here [http://www.dailyreportingsuite.com/files/DailiesReprintPermissionsAfter7Days.pdf]