Some exceptions to the Doctrine of Exhaustion of Administrative Remedies

Some exceptions to the Doctrine of Exhaustion of Administrative Remedies

Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2017 NY Slip Op 03588, Appellate Division, Third Department

Civil Service Law §64 bars temporary appointments to positions in the competitive class excess of three months, subject to certain exceptions, including, but not limited to, when an employee is on leave of absence from the position.

The Police Benevolent Association of New York State, Inc. [PBA], the bargaining representative for individuals employed as university police officers [UPO] at the State University of New York [SUNY] brought an Article 78 action seeking an order, among other things, annulling the temporary part-time appointment of an individual [Employee] as a UPO by SUNY's College of Environmental Science and Forestry. PBA contended that SUNY's appointment of Employee as a temporary part-time employee violated Civil Service Law §64.

Supreme Court granted SUNY's pre-trial motion to dismiss PBA's petition on the ground that PBA did not exhaust its administrative remedies. SUNY cited  an appeal of a grievance filed by PBA pursuant to the relevant collective bargaining agreement [CBA] then pending before the Governor's Office of Employee Relations [GOER] in support of its "failure to exhaust administrative remedies" in support of its motion to dismiss PBA's Article 78 petition.

PBA appealed and the Appellate Division reversed the Supreme Court's decision, finding that the exhaustion of remedies principle was inapplicable here because the matter was "ripe for judicial review."

Although the court observed that  "[A] determination made by an administrative agency must first be challenged through every available administrative remedy before it can be raised in a court of law," it said that this rule does not apply where [1] "an administrative challenge would be futile" or [2] where "the issue to be determined is purely a question of law."

The Appellate Division noted that PBA's Article 78 petition did not challenge the grievance determinations by SUNY processed pursuant to the grievance procedure set out in the CBA and that an appeal concerning those decisions were then pending a determination by the Governor's Office of Employee Relations.*

Rather PBA's Article 78 action challenged the appointment of Employee on the ground that it violated Civil Service Law §64. As PBA does not allege that SUNY violated the CBA, but instead alleges a statutory violation, it was not required to use the CBA's grievance procedure.

Indeed, said the court, "Article 7 of the CBA limits the grievance process to three types of disputes: first, concerning the application and/or interpretation of the CBA; second, concerning a term or condition of employment; and third, concerning a claim of improper or unjust discipline. However, none of these provisions "can be reasonably viewed as applicable to an (alleged) unlawful appointment by SUNY" in violation of §64 of the Civil Service Law.

As the cited provisions in the CBA are inapplicable with respect to adjudicating the alleges violation of Civil Service Law §64, use of the grievance process to challenge the appointment on statutory grounds would have been futile. As Employee's appointment was final, resulting in an alleged injury to PBA and, or, collective bargaining unit members, and because the question presented is "purely legal," the Appellate Division ruled that the matter "is ripe for judicial review" and Supreme Court erred in granting SUNY' pre-answer motion to dismiss.

* The Appellate Division noted that GOER denied the grievance and PBA made no demand for arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03588.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 13, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 13, 2017 

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Bombay Clerk Sentenced for Pocketing Justice Court Fees

A North Country court clerk was sentenced for stealing more than $5,680 from Bombay Justice Court while the other court clerk—his mother—was on sick leave, according to State Comptroller Thomas P. DiNapoli.

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the:     

                    

City of Long Beach, – Budget Review;

Town of Minisink, – Payroll and Fire Protection and Ambulance Contracts;

Village of Tannersville – Water Department Operations; and the

Town of Wales – Financial Management

A guide to cybersecurity

A guide to cybersecurity

Source: InvestmentNews

InvestmentNews reports that "With more data aggregated and housed in the cloud," the threat of a cyber-crime compromising an organization firm is greater than ever. Its "white paper sources 'new data from the 2017 InvestmentNews Adviser Technology Study' that assesses the state of cybersecurity," while also offering practical tips for protecting an organization's operations  and its data.

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Applying the Pell Doctrine in a disciplinary action

Applying the Pell Doctrine in a disciplinary action

Sullivan v County of Rockland, 2017 NY Slip Op 03519, Appellate Division, Second Department

Disciplinary penalties imposed on public employees in New York State must meet the test set out in Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

The genesis of this litigation was a disciplinary action involving an individual [Employee] who had served with the Rockland County Department of Social Services [DSS] since 1990. The appointing authority initiated disciplinary action against Employee alleging of gross misconduct — "falsification of business records." The Charge served on Employee set out two specifications alleging Employee had made false entries in DSS's computer system.

Following a disciplinary hearing, a hearing officer found that DSS had submitted substantial evidence in support of both specifications set out in the Charge and recommended that Employee be terminated from his position.

The appointing authority adopted the hearing officer's findings and recommendation as to the penalty to be imposed and terminated Employee.

Employee challenged his dismissal and the Appellate Division subsequently determined that  "specification number 2 was not supported by substantial evidence." The court granted Employee's Article 78 petition to the extent of annulling the appointing officer's determination that found Employee guilty of specification number 2, vacated the penalty imposed, dismissal, but otherwise confirmed the determination. The court then remitted the matter to the appointing authority for a determination of the appropriate penalty to be imposed in view of the finding that Employee was guilty of specification number 1.*

The appointing authority issued a new determination based solely on Employee's having been found guilty of specification number 1 and, again, imposing the penalty of termination of employment. Employee again filed an Article 78 petition seeking judicial review the penalty imposed after the appointing authority reconsideration of the matter.

The Supreme Court granted Employee's petition and remitted the matter to the appointing authority for the imposition of a lesser penalty. The appointing authority appealed the Supreme Court's ruling.

Applying the Pell Doctrine, the Appellate Division said that "[a]n administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." The court explained that "[a] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals."

In this instance the Appellate Division found that the penalty imposed was so grave in its impact on the Employee that it was disproportionate to the misconduct, or the risk of harm to DSS or the public.

Thus, under the circumstances of this case, the Appellate Division ruled that the penalty of termination of employment for "this single incident of misconduct" was so disproportionate to the offense as to be shocking to one's sense of fairness, and constituted an abuse of discretion as a matter of law.

As Employee's actions "were not so egregious or of such moral turpitude as to justify termination of his employment in light of his previously unblemished record," the Appellate Division concluded that Supreme Court properly granted Employee's Article 78 petition and remitted the matter to the appointing authority for the imposition of a lesser penalty.

* See Matter of Sullivan v County of Rockland, 121 AD3d 700

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03519.htm

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Challenging Adverse Personnel Decisions - A 765 page electronic book [e-book] focusing on penalties imposed on public employees of New York State and its political subdivisions found guilty of misconduct or incompetence by hearing officers and arbitrators and the judicial review of such penalties. More information is available on the Internet at http://nypplarchives.blogspot.com.

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Data Privacy and Cybersecurity Forum to be held in New York City May 23-24, 2017

Data Privacy and Cybersecurity Forum to be held in New York City May 23-24, 2017

Source: Today's General Counsel Institute

Today's General Counsel Institute reports that the need for privacy and cybersecurity compliance continues to increase as organizations become more and more digitally driven, data breaches become more publicized and regulations continue to increase. C-suite executives, boards of directors, employees and third party providers all have data security obligations. Always knowing how to proceed can be complicated and confusing.

The Institute's Data Privacy and Cybersecurity Forum is designed to help cut through the maze of issues involved in protecting an organization from cyber attack. The program offers an interactive format and roundtable sessions addressing "data privacy and cybersecurity issues and will also provide actual solutions to real world issues."  

This Forum will be held at the New York City Bar Association, 42 West 44th Street, New York, New York, 10036, May 23-24, 2017.

N.B. Today's General Counsel Institute is offering a Complimentary Registration to the first 25 NYPPL readers registering to attend the Forum and who enter the "promo code" NYPPL100 in the appropriate box on the registration form posted on the Internet at: 
http://www.todaysgeneralcounsel.com/institute/cyber-new-york/register/

Data Privacy and Cybersecurity Forums will be held at other locations throughout the United States in the future. Additional information is posted on the Internet at:
http://www.todaysgeneralcounsel.com/institute/cyber-new-york/

CPLR Article 86, the Equal Access to Justice Act, applies in cases brought against the State for alleged unlawful discrimination within the meaning of the Human Rights Law

CPLR Article 86, the Equal Access to Justice Act, applies in cases brought against the State for alleged unlawful discrimination within the meaning of the Human Rights Law

Kimmel v State of New York, 2017 NY Slip Op 03689, Court of Appeals

Under the Equal Access to Justice Act [EAJA; CPLR Article 86] under certain circumstances a court may award reasonable attorneys' fees and costs to a prevailing plaintiff in a suit against the State.

Does the EAJA permits the award of attorneys' fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. The Court of Appeals concluded that it does.

A New York State Trooper [Plaintiff], sued the State of New York and the New York State Division of State Police [State] alleging that she was subjected to discrimination, sexual harassment, and retaliation based on her sex at work and thus suffered a hostile work environment. She sought back pay, front pay, benefits, compensatory damages, reasonable attorneys' fees, and an injunction restraining the State from continuing its discriminatory practices.

According to her complaint, and supporting exhibits, her coworkers posted lewd cartoons portraying Plaintiff naked and engaged in various sexual acts, suggested that she perform sexual acts on them and other coworkers and engaged in other harassing and hostile conduct, including a physical assault that required Plaintiff to seek emergency room treatment and doctor-ordered work leave. The Court of Appeals' decision states that "she made repeated complaints but the harassment continued. Neither her supervisors nor her Troop Commanders put a stop to her coworkers' offensive behavior. Plaintiff repeatedly sought legal assistance, but had difficulty finding an attorney to take her case."

The State, in its defense, denied "that the agency had engaged in any wrongdoing whatsoever," and asserted as a defense that "[a]ll actions taken by the State were official acts taken in the exercise of their discretion." Eventually, based on its continued defiance of court orders, the Appellate Division struck the State's answers.*

Ultimately the case went to trial. Plaintiff prevailed and received a jury award of over $700,000. The jury award included past earnings of $160,000; past lost retirement earnings of $60,000; future lost retirement earnings of $491,000; and past pain and suffering of $87,000.

When Plaintiff's current and former counsel sought attorneys' fees and costs pursuant to the EAJA, Supreme Court held that attorneys' fees and costs could not be awarded because the EAJA did not apply "where a plaintiff has recovered compensatory damages for tortious acts of the State and its employees."** The Appellate Division,  in a split decision, reversed the lower court's ruling, holding that a plain reading of the EAJA and its definition of the term "action" compelled the conclusion that the "EAJA applies to this case."

Supreme Court subsequently entered a final judgment awarding Plaintiff and intervenor attorneys' fees and expenses and the State appealed.

After an extensive exploration of the legislative history and applying the plain language, and remedial nature of the EAJA, the Court of Appeals concluded that "this civil action is eligible for an award of attorneys' fees," holding that "for cases commenced before the effective date of the 2015 amendment to the Human Rights Law, the EAJA permits the award of attorneys' fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency."

In the words of the court: "The plain language of the statute, which is supported by the legislative history, compels the conclusion that "any civil action" encompasses cases brought under the Human Rights Law, and noted that "[i]t is not for this Court to engraft limitations onto the plain language of the statute."

Citing Orens v Novello, 99 NY2d 180, the Court of Appeals stated that "[t]his Court should be very cautious in interpreting statutes based on what it views as a better choice of words when confronted with an explicit choice made by the Legislature," noting its agreement with the Appellate Division that "we may 'not legislate under the guise of interpretation and, if application of the EAJA to this action is an unintended result of the plain language of the statute, then that is a consequence best left to the Legislature to evaluate and, if necessary, resolve.'"

Accordingly, the Court of Appeals ruled that the order of the Appellate Division insofar as brought up for review, should be affirmed, with costs.

* See286 AD2d 881

** A footnote in the opinion, Footnote 5 , states, in pertinent part, "claims brought under the Human Rights Law are not tort claims," citing Margerum v City of Buffalo, 24 NY3d 721, in which the court opined: "no notice of claim requirement applies because "(h)uman rights 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."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03689.htm

Defamatory statements

Defamatory statements

Camaj v Plassmann, 2017 NY Slip Op 03473, Appellate Division, Second Department

Supreme Court granted the plaintiff's motion for summary judgment for alleged liable after determining that the defendant had defamed the plaintiff by publishing false statements about him.

The court, after a nonjury trial on the issue of damages, determined that the plaintiff was entitled to compensatory damages in the principal sum of $25,000 and punitive damages in the sum of $10,000.

The Appellate Division affirmed the lower court's ruling, holding that "[i]n light of the nature of the defamatory statements, the fact that they were published to employees of the school district in which the plaintiff was employed and were repeated by students, and the evidence of the emotional distress caused to the plaintiff, the awards for compensatory and punitive damages were proper."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03473.htm

Retired judges may not simultaneously drew both a full judicial salary and a full pension upon certification for further service as a Justice of the Supreme Court

Retired judges may not simultaneously drew both a full judicial salary and a full pension upon certification for further service as a Justice of the Supreme Court

Loehr v Administrative Bd. of the Cts. of the State of New York, 2017 NY Slip Op 03558, Court of Appeals

The Chief Administrative Judge signed an administrative notice declaring that the policy of the Administrative Board of the Courts of the State of New York [Board] henceforth would be that "no judge . . . certificated for service as a Justice of the Supreme Court pursuant to Judiciary Law §115* may receive, concurrent with receipt of a salary for such service, a retirement allowance for prior judicial service within the Unified Court System."

The policy was grounded on the Board's belief that judges who simultaneously drew both a full judicial salary and a full pension, typically referred to as "double-dipping," adversely affected both the public's impression of the court system and the court system's negotiations with the other branches over crucial budgetary and personnel matters.

While three retired Supreme Court Justices' [Plaintiffs] applications were pending "certification," the Board released an administrative order reflecting this policy and gave notice that it would no longer certify applicants who would, on reappointment, choose to receive both a retirement allowance for prior judicial service and their salary as a certified justice. Subsequently a memorandum from the Office of the Chief Administrative Judge clarified the situation, indicating that retired Justices otherwise approved for certification would be certified only if they deferred receipt of their New York State pensions until their judicial service ended.

Plaintiffs filed an Article 78 petition seeking an order annulling the policy. Supreme Court dismissed their petition for failure to state a claim and declared the Board's policy to be neither illegal nor unconstitutional. Plaintiffs appealed to the Appellate Division, which reversed the lower court and granted the petition. The Appellate Division held that  the Board's administrative order "violated the New York Constitution, the Judiciary Law, and the Retirement and Social Security Law."

The Board appealed the Appellate Division's ruling and the Court of Appeals reversed the Appellate Division's decision "Because the Board enjoys nearly unfettered discretion in determining whether to certify a retired Justice, and because its decision here was not contrary to any law or constitutional mandate raised by Plaintiffs."**

The Court of Appeals decision notes that "New York's public policy strongly disfavors the receipt of state pensions by persons also receiving state salaries, citing §150 of the Civil Service Law as establishing New York State's general public policy against the simultaneous receipt of a state pension and a state salary.

§150 provides that "Except as otherwise provided by sections one hundred one, two hundred eleven, and two hundred twelve of the retirement and social security law*** . . . if any person subsequent to his or her retirement from the civil service of the state . . . shall accept any office, position or employment in the civil service of the state . . . to which any salary or emolument is attached . . . any pension or annuity awarded or allotted to him or her upon retirement, and payable by the state . . . or out of any fund established by or pursuant to law, shall be suspended during such service or employment and while such person is receiving any salary or emolument therefor [sic] except reimbursement for traveling expenses."

Further, said the court, §101(c) of the Retirement and Social Security Law provides that  "In the event that a judge or justice shall ... [h]ave retired and is receiving a retirement allowance from this retirement system, or another retirement system of which he [or she] was a member, and . . . [b]e certified for service as a justice of the supreme court pursuant to section one hundred fourteen or one hundred fifteen of the judiciary law, his [or her] retirement allowance shall cease" (emphasis supplied in the opinion).

In this action, said the Court, the issue presented is whether the Board's policy is rationally related to whether certification is "necessary to expedite the business of the court." The Court of Appeals, per curiam, concluded that this prospective rule was necessary, reversing the order of the Appellate Division and reinstating the judgment of Supreme Court.

* §115 of the Judiciary Law provides that a retired Court of Appeals Judge or Supreme Court Justice, if otherwise eligible for such certification, may perform the duties of a Supreme Court Justice if the services "of such . . . justice are necessary to expedite the business of the court and that he or she is mentally and physically able and competent to perform the full duties of such office."

** Citing Marro v Bartlett, 46 NY2d 674, the Court of Appeals noted that "[p]rovided it complies with the two criteria set forth in the Constitution, and absent proof that its determination violates statutory prescriptions or promotes a constitutionally impermissible purpose, the Board's authority is not subject to judicial review."

*** §212.1 of the Retirement and Social Security Law provides, in pertinent part, "there shall be no earning limitations under the provisions of this section on or after the calendar year in which any retired person attains age sixty-five."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03558.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 6, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 6, 2017 

Source: Office of the State Comptroller 

Audit Questions Payments Made to Supportive Housing Provider

An audit issued today by New York State Comptroller Thomas P. DiNapoli has identified $32,271 in unallowable expenses and $489,616 in questionable costs that were paid by the state Office of Mental Health to an Altamont, N.Y. company that serves as a supportive housing provider for New Yorkers with mental illness.

 
Municipal Audits released:

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of: 

Franklin Square and Munson Fire District– Non-Firefighting Vehicles; 

Greater Syracuse Property Development Corporation – Enforcement Mortgages; 

Village of Mayfield – Water and Sewer Operations; 

Village of Newport – Financial Management; and the 

Wassaic Fire District – Purchasing and Claims Processing 

Failure of the individual to timely execute his or her oath of office upon election to a public office results in the position becoming vacant by operation of law

Failure of the individual to timely execute his or her oath of office upon election to his or her  public office results in the position becoming vacant by operation of law

Appeal of Oscar Cohen, Decisions of the Commissioner of Education, Decision No. 17,075

§30(1)(h) of the Public Officers Law provides that an incumbent’s office “shall be vacant upon ... [an incumbent’s] refusal or neglect to file his [or her] official oath ... before or within thirty days after the commencement of the term of office for which he [or she] is chosen, if an elective office ....”1

§2108 of the Education Law provides that a district clerk is obligated to inform a successful electoral candidate of his or her election in writing and further provides that  “[t]he presence of any such person at the meeting which elects him [or her] to office, shall be deemed a sufficient notice to him [or her] of his [or her] election.”

Sabrina Charles-Pierre ran for, as was elected to, membership on the Board of Education of the East Ramapo Central School District [Board]. She was present at a Board meeting on May 17, 2016 at which the unofficial "election results" revealed that she had won election to the Board.

Ms. Charles-Pierre subsequently attended a June 7, 2016 Board meeting at which the final election results were certified and accepted by the Board. At the Board's reorganization meeting on July 14, 2016, the district clerk administered the oath of office to Ms. Charles-Pierre.  Shortly thereafter the Board determined that at the result of  "an administrative timing error,” Ms. Charles-Pierre’s oath of office had been administered to her more than 30 days after she had been elected to her position and, consequently, by operation of law her seat was deemed vacant.2

On July 26, 2016, the Board held a special meeting and appointed Ms. Charles-Pierre to the seat it had earlier declared vacant until the Board’s next annual meeting and election in May 2017.

Oscar Cohen appealed the Board's action contending that its determination that Ms. Charles-Pierre’s position became vacant was arbitrary and capricious. Mr. Cohen claimed that the 30-day time period for taking and filing the oath of office imposed by Public Officers Law §30(1)(h) did not commence “until Ms. Charles-Pierre receive[d] formal notice of the election results.”3 Mr. Cohen, "upon information and belief," argued that Ms. Charles-Pierre never received such written notice.  The remedy sought by Mr. Cohen: an order by the Commissioner "restoring" Ms. Charles-Pierre to her two-year elected term, which would run through June 30, 2018.

While the Board admitted that it failed to provide Ms. Charles-Pierre with written notice of her election, it pointed out that she was present at the May 17, 2016 and June 7, 2016 Board meetings “where the election results were announced and confirmed, respectively.”  Notwithstanding this defense, the Board had “joined” Mr. Cohen in his request to reinstate Ms. Charles-Pierre to her elected term.

However, the Commissioner dismissed Mr. Cohen's appeal as moot, taking "judicial notice"4 that Chapter 5 of the Laws of 2017, effective February 1, 2017, excused Ms. Charles-Pierre’s failure to file her official oath within the statutorily prescribed period, provided that she filed her oath of office within 30 calendar days of the effective date of that act. Ms. Charles-Pierre had, in fact, timely filed her oath of office on February 7, 2017, which is within the 30-day period specified in Chapter 5.

1 Section 30 excuses the failure to file the oath within the 30-day period if the individual “was on active duty in the armed forces of the United States and absent from the county of his [or her] residence at the time of his [or her] election or appointment....”

2 The failure to file a timely oath cannot be cured by subsequently filing the required oath, Informal Opinion of the Attorney General, 86-41.

3 "Where ... the individual was present at the board meeting at which he was appointed and thus had actual notice of his appointment, written notice thereof was not required to commence the 30-day period," McDonough v Murphy, 92 AD2d 1022, affirmed 59 NY2d 941.

4 Judicial notice is the recognition by a judicial body or an individual acting in a judicial capacity of a fact that is not reasonably disputable and without the introduction of supporting evidence.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17075