Circumstantial evidence "raised a reasonable inference" that the employee had violated of New York City Charter §2604(b)2)

Circumstantial evidence "raised a reasonable inference" that the employee had violated of New York City Charter §2604(b)(2)
Oberman v New York City Conflicts of Interest Board, 2017 NY Slip Op 02366, Appellate Division, First Department

The New York City Conflicts of Interest Board, adopting the findings and recommendation as to the penalty to be imposed of an Office of Administrative Trials and Hearings' [OATH] Administrative Law Judge, held that Igor Oberman was guilty of having violated New York City Charter §2604(b)(2)* and 53 RCNY §1-13(a) and (b)**when he "used his public employer's resources for private purposes." The penalty imposed: a civil fine in the amount of $7,500.

Oberman initiated an Article 78 action challenging the Board's determination on the grounds that it was not supported by substantial evidence.  The Appellate Division, unanimously confirmed the Board's action.

The court said that there was no basis to disturb the credibility determinations of the OATH Administrative Law Judge*** as the "strong circumstantial evidence" of records of numerous calls involving Oberman's work telephone and donations to Oberman's political campaign, raised a reasonable inference that had used his public employer's resources for private purposes in violation of Charter §2604(b)2).

The Appellate Division then opined that "penalty is not shockingly disproportionate to the offense, in light of the extent of [Oberman's] misconduct, the warnings he had received against such misconduct, his failure to accept responsibility, and the high ethical standards to which he was held as an attorney." 

* §2604(b)(2) provides that "No public servant shall engage in any business, transaction or private employment, or have any financial or other private interest, direct or indirect, which is in conflict with the proper discharge of his or her official duties. 

** 53 RCNY §1-13(a) and (b) provide that:

            (a) Except as provided in subdivision 3 of this section, it shall be a violation of  City Charter §2604(b)(2) for any public servant to pursue personal and private activities during times when the public servant is required to perform services for   the City.

            (b) Except as provided in subdivision 3 of this section, it shall be a violation of City Charter §2604(b)(2) for any public servant to use City letterhead, personnel, equipment, resources, or supplies for any non-City purpose. 

*** See Office of Administrative Trials and Hearing Index #1657/14:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1657.pdf

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_02366.htm

Election of administrative remedies

Election of administrative remedies

Decisions of the Commissioner of Education, Decision #17,062

The Board of Education assigned a teacher to teach five classes following a reduction in her position from a full-time position to a .83 full time equivalent (“FTE”). 

The teacher filed a grievance challenging the Board's action contending that because she continues to teach five classes each day she is "a 1.0 FTE teacher." The teacher's employee organization advised her that it would not be advancing her grievance to arbitration as the information provided did not constitute a violation of any specific provision of the Collective Bargaining Agreement [CBA] between the organizations and the school district.

The teacher then filed an appeal with the Commissioner of Education seeking the same relief she sought in the grievance. The school district object, contending that the prior commencement of an action or proceeding by filing a grievance for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner.

After stating that "It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum" and the teacher admits that the relief sought in both the grievance and this appeal is the same, the Commissioner said that the record before her shows that teacher alleged that the district was obligated under the CBA to compensate her at a salary commensurate with 1.0 FTE status in her Level I grievance, to the extent that the teacher elected to pursue her claims through the grievance process, such claims must be dismissed. 

However, noted the Commissioner, in her grievance, the teacher included a claim that the district’s actions are in violation of 8 NYCRR §100.2(i) of the Commissioner’s regulations. In its letter to the teacher declining to advance her grievance to arbitration, the Association stated that a claimed violation of statute is not a grievable matter under the CBA as such a claim does not allege a violation of a specific provision of the CBA.

In view of this, the Commissioner declined to dismiss the teacher’s claim that the school district acted in violation of §100.2(i) of the Commissioner’s regulations.

Turning to the merits of this claim advanced by the teacher, the Commissioner noted that  §100.2(i), relating to teaching assignments, provides that "The number of daily periods of classroom instruction for a teacher should not exceed five.  A school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy."

Observing that 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, the Commissioner noted that the teacher did not argue that her number of daily periods of classroom instruction exceeds five nor that . she is assigned a daily teaching load in excess of 150 students.  Rather teacher contends that as §100.2(i) defines a full-time teaching load as five classes, she is entitled to compensation as a full-time teacher. 

The Commissioner explained that §100.2(i) merely establishes a policy that teachers should not be assigned more than five classes or a teaching load of 150 pupils and requires that a board of education be able to justify any such assignment, for the purpose of maintaining quality instruction for students -- it does not define full-time status for purposes of compensation, which as in this case, is a matter governed by the applicable CBA.

The Commissioner then held that the teacher "has not established that [the school district's] actions are in violation of §100.2(i) of the Commissioner’s regulations and dismissed the appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17062

Employee organization's authority to expel a member cannot be used to suppress free expression and free political opposition

Employee organization's authority to expel a member cannot be used to suppress free expression and free political opposition

Montero v Police Assn. of the City of Yonkers, Inc., 2017 NY Slip Op 02040, Appellate Division, Second Department

The Police Association of the City of Yonkers, Inc., also known as Yonkers Police Benevolent Association, [PBA], had charged one of its members, Raymond Montero, with providing information to the author of articles published online, providing that author with an email from [the PBA's] president to the member of the PBA, publishing that email online himself, with comments, and "being involved in an altercation with another member." Montero was given notice of these charges and of the date and time of the hearing scheduled to consider these allegations. He elected to not to appear at the hearing and subsequently the PBA expelled Monterofrom its membership.

Montero file an Article 78 petition challenging the PBA's action but Supreme Court  denied the petition and dismissed the proceeding. Montero appealed and the Appellate Division annulled the Supreme Court's ruling and granted Montero's petition.

In Polin v Kaplan, 257 N.Y. 277, the Court of Appeals said "It is well established that where the constitution and by-laws of a voluntary association reasonably set forth grounds for expulsion and provide for a hearing upon notice to the member, judicial review of such proceedings is unavailable, unless the reason for expulsion is not a violation of the constitution or by-laws or is so trivial as to suggest that the action of the association was capricious or corrupt, or unless the association failed to administer its own rules fairly."

The Appellate Division found that in this instance the PBA's determination that Montero was guilty of conduct that was "prejudicial to the welfare of the Association," in violation of its bylaws, was arbitrary and capricious.

The court explained that with respect to the charges filed against Montero concerning the e-mail, there was only one "identified email" in the record. Accordingly, said the court,  there is no basis in the record on which to determine what, if any, other information was provided to the author of the articles by Montero, and whether such unidentified information was detrimental to the PBA.

As to the email in the record, that e-mail was characterized as confidential by the PBA. The Appellate Division, however, observed that there is no reason to conclude that the email, which was sent to all of the PBA's members, was confidential and, in fact, it contained a statement indicating that sharing the email was merely "discouraged."

In any event, said the court, the record provides no support for a determination that Montero's sharing the widely distributed email or making certain online comments about the email, was detrimental to the welfare of the PBA.

Again quoting from the decision in Polin v Kaplan noted above, the Appellate Division said "If there be any public policy touching the government of labor unions, and there can be no doubt that there is, it is that traditionally democratic means of improving their union may be freely availed of by members without fear of harm or penalty. And this necessarily includes the right to criticize current union leadership. . . . The price of free expression and of political opposition within a union cannot be the risk of expulsion or other disciplinary action. In the final analysis, a labor union profits, as does any democratic body, more by permitting free expression and free political opposition than it may ever lose from any disunity that it may thus evidence."

The Appellate Division's decision also ruled that "there is no rational basis for the conclusion that a brief physical altercation between [Montero] and another member "prejudice[d] the welfare" of the [PBA].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02040.htm