The basis for challenging a decision by a civil service commission are limited

The basis for challenging a decision by a civil service commission are limited

Agbai v New York City Civ. Serv. Commn., 2017 NY Slip Op 03699, Appellate Division, First Department

Supreme Court granted the NYC Civil Service Commission's motion dismissing a CPLR Article 78 petition seeking to vacate a determination by the Commission the terminated the petitioner's [Petitioner] employment as a New York City correction officer.

The Appellate Division explained that the New York City Civil Service Commission is subject to judicial review only if "the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction," citing New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318.

Supreme Court, said the Appellate Division, "properly rejected Petitioner's argument that the Administrative Law Judge did not have the authority and jurisdiction to conduct the challenged disciplinary hearing."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03699.htm

Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Broad v New York City Bd./Dept. of Educ., 2017 NY Slip Op 03691, Appellate Division, First Department

Supreme Court granted a New York City tenured teacher's [Teacher] CPLR Article 75 petition to set aside a determination of an arbitrator that sustained numerous disciplinary charges and specifications filed against her and terminating her employment as a tenured teacher.

The New York City Board/Department of Education appealed and the Appellate Division   unanimously reversed the lower court's ruling "on the law" and reinstated the arbitrator's decision.

The Appellate Division ruled that the arbitrator's decision had a rational basis and was supported by adequate evidence. The court said that he arbitrator reasonably determined that Teacher's performance had been deficient for two years based on the observations and ratings of the school principal and two assistant principals.

Although some of the charges and specifications were not significant, the Appellate Division noted that "the record reflects that petitioner was provided with substantial assistance over a two-year time period to improve her pedagogical skills, but she was unwilling to improve her performance."

As to the penalty imposed by the arbitrator, termination from employment, the court said that the penalty "does not shock our sense of fairness," citing Russo v NYC Dept of Education, 25 NY3d 946.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03691.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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Governor Cuomo announces refund checks have been issued to retirees deceived by Future Income Payments LLC

Governor Cuomo announces refund checks have been issued to retirees deceived by Future Income Payments LLC

Office of the Governor

As part of consent order with New York State's Department of Financial Services [DFS], Future Income Payments, LLC [FIP] is repaying more than $500,000 to New York pensioners

On May 15, 2017 New York State's Governor Andrew M. Cuomo announced that refund checks totaling $541,835, as well as loan forgiveness information, were issued to 115 retirees deceived by pension advance company FIP as required by FIP and its owner Scott Kohn.

FIP was not licensed to make loans in New York, nor was it licensed as a money transmitter. An investigation by DFS found that the company solicited and made loans to retired consumers at high interest rates in exchange for retirees assigning away several years of their pension benefits to pay for the unlawful loans.

The consent order resolved the investigation by DFS, which found that FIP made loans in New York State without a lending license, charged a usurious rate of interest on loans to New York pensioners, transmitted money to and from New York State without a money transmitter license, misrepresented to New York pensioners the legal status of the transactions by characterizing the loans as sales of an asset, and omitted the annual percentage rate of the loans. The refunds were mailed Friday, May 12, 2017 to 108 New York residents and seven former residents.

In addition to mandating the refunds, the consent order requires FIP to pay a $500,000 fine and stop engaging in all consumer-related transactions within New York State and with any New York resident. FIP was also required to reduce the total amount owed by pensioners to the actual value of the lump sum that was advanced and forgive amounts due above that amount, resulting in forgiveness of more than $6.3 million across 292 transactions.

New York pensioners who entered into agreements with FIP will receive a letter from the third-party administrator, Rust Consulting, Inc. Consumers who entered into an agreement with FIP and do not receive a letter or need more information should visit www.nyfipsettlement.com or contact Rust Consulting, Inc. at (866) 317-8866 or info@nyfipsettlement.com.

DFS urges anyone who suspects that they have been the victim of a pension advance scheme to contact the DFS Consumer Help Line at (800) 342-3736 or log onto www.dfs.ny.gov for assistance.

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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

_____________________

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

Determining when "actual notice," in contrast to "constructive notice," of an administrative action is required to trigger the running of the Statute of Limitations for filing an Article 78 action

Determining when "actual notice," in contrast to "constructive notice," of an administrative actionis required to trigger the running of the Statute of Limitations for filing an Article 78 action

Knave v West Seneca Cent. Such. Dist., 2017 NY Slip Op 03416, Appellate Division, Fourth Department

The collective bargaining agreement between the West Seneca Central School District [District] and the employee organization representing certain employees provided that upon retirement employees in the collective bargaining unit "could enroll in the same Blue Cross/Blue Shield health insurance and Guardian dental insurance plans available to the District's then current employees, at their own expense."

When the District sent an undated letter to its retired employees of under the age of 65 [Petitioners] advising them that it would discontinue its practice of offering "Under Age 65 retirees" the opportunity to enroll in the same plans that were available to its active employees, Petitioners challenged the District's action and sought a court order annulling the District's discontinuation of its "Under Age 65 retirees" practice.

The District moved to dismiss Petitioners' Article 78 action contending it was untimely. The District advanced the theory that the statute of limitations had began to run when it issued the undated letter addressed to the Petitioners, which action constituted "constructive notice" of the discontinuance of their participation in the District's health insurance plan.

The Appellate Division said that applying the date of mailing of the undated letter in a constructive notice test argument, as the District contended, requires a judicial determination, as a threshold matter, that the administrative determination at issue was "quasi-legislative" in nature.

A quasi-legislative-type administrative determination is one having an impact "far beyond the immediate parties at the administrative stage." The court explained that where a quasi-legislative determination is challenged, "actual notice of the challenged determination is not required in order to start the statute of limitations clock" ticking as the policy underlying the rule is that actual notice to the general public is not practicable. Thus, said the Appellate Division, the statute of limitations begins to run once the administrative agency's quasi-legislative determination concerning the matter at issue became "readily ascertainable" to the complaining party.

In contrast, where the public at large is not impacted by an administrative determination, actual notice, commonly in the form of the receipt of a letter or other writing containing the final and binding administrative determination is required to be delivered to the parties affected to commence the running of the statute of limitations.

The Appellate Division found that the only evidence in the record with respect to the determination to discontinue the practice affecting "Under Age 65 retirees" was the undated letter that was signed by the District's "Assistant Superintendent, Human Resources." The letter, however, made no mention of any meeting of, or resolution by, the West Seneca Central School District Board of Education at which the participation of "Under Age 65 retirees" in active employees' the health insurance plan was discussed or voted upon nor did the letter set out the authority, if any, upon which Assistant Superintendent relied upon in issuing the letter.

In the words of the Court, the District "wholly failed to submit any evidence establishing the process that resulted in the issuance of the undated letter, and the record is otherwise devoid of any evidence of the nature of the process giving rise to the determination. In our view, all of those facts and factual shortcomings are critical to the analysis."

Noting that the determination clearly had no impact upon the public at large, the court said that the District failed to establish that actual notice to the affected persons would be impracticable or unduly burdensome.

Thus, the Appellate Division concluded that the District [1]2 failed to meet its burden of establishing that  the challenged determination affecting the "Under Age 65 retirees" was "quasi-legislative" in nature and [2] failed to meet its burden of showing that the "readily ascertainable" constructive notice test should be applied here.

Concluding that Petitioners had filed a timely Article 78 action, the Appellate Division provided the District with 20 days "from service of the order of this Court with notice of entry" to serve and file an answer to the Article 78 petition and remanded the matter to Supreme Court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03416.htm

An unexcused procedural omission means the Commissioner of Education will not address the merits of an appeal

An unexcused procedural omission means the Commissioner of Education will not address the merits of an appeal

Appeal of Susan Sudano, Decisions of the Commissioner of Education, Decision #Decision 17,078

This decision demonstrates the importance complying with all of the necessary procedural steps when filing an appeal with the Commissioner of Education.

Susan Sudano was a tenured teacher employed in the district in the tenure area of remedial reading. As the result of a position in her tenure area being abolished, Sudano  was "excessed" and her name was placed on a preferred list. Sudano, contending that less senior teachers in her tenure area were retained or appointed from the preferred list, filed an appeal with the Commissioner of Education  seeking reinstatement to her former position. However, the Commissioner never addressed the merits of her complaint as the result of her failing to satisfy a number of procedural requirements.

The first issue addressed by the Commissioner was  Sudano's satisfying the requirement that her appeal must be timely by filing it within 30 days of the date of the decision or the performance of the act complained of unless any delay in meeting this 30-day deadline is excused by the Commissioner "for good cause shown."

In response to the School District's argument that Sudano's appeal was untimely, the Commissioner said that although an appeal must be commenced within the 30-day deadline, earlier Commissioner decisions indicated that "where the alleged wrong is that another teacher has been appointed to a position in violation of the petitioner’s preferred eligibility rights, the petitioner does not become aggrieved until the date that another person commences service in the position at issue." Here the Commissioner said that to the extent that Sudano contends that the School District violated Education Law §3013(3) "by failing to recall her from the preferred eligibility list to vacant positions that were filled by other teachers, her appeal was timely,"  the Commissioner explained that although she agreed with the School District that Sudano was required file her appeal within 30 days of the effective date the position was abolished, there was a "conflict in past Commissioner's decisions" that was resolved in Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582. 

In Gordon the Commissioner excused a delay in commencing an appeal within 30 days after the effective date of the abolition of the position and indicated that delays in commencing similar appeals pending on the date of that decision also would be excused where service was made within 30 days of the date on which another teacher commenced service in a position to which the petitioner claimed an entitlement. As Sudano's appeal was pending on the date the Gordon was decided, the Commissioner excuse Sudano's delay in bringing her claim that she was not the least senior teacher in the tenure area of the position abolished, "for the reasons stated in Appeal of Gordon."

However, there were other procedural requirements that had to be satisfied such as personal service of the petition upon each named respondent and, if a school district is named as a respondent, "service upon the school district" was required to be made "personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

Further, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such as a "necessary party." In addition, the Commissioner said that "Joinder requires that an individual be clearly named as a respondent in the caption [of the petition] and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense."

Sudano, however, had "initially failed to properly serve two respondents, Hanwright and Paniccia," said the Commissioner. She then attempted to effect service upon Hanwright and Paniccia, by serving papers upon a “person of suitable age and discretion.”  The affidavits of service, however, did not demonstrate that Sudano made "any diligent attempt" to serve Hanwright and Paniccia personally before resorting to "substitute service."

Although Sudano did effect personal service upon both individuals later, such service was effected more than 30 days after Hanwright and Paniccia began to serve in the positions which Sudano claimed she was entitled by reason of her seniority.  As Sudano "offered no excuse for the delay in effecting personal service and in the absence of evidence of diligent efforts to effect timely personal service," on Hanwright and Panicca, the Commissioner said that she declined to excuse the delay. As a result, neither Hanwright and Panicca had been properly joined as parties in Sudano's appeal.

As to another respondent, D’Esposito, the Commissioner said that Sudano "attempted to effect service by affixing a copy of the petition to the door at a residence presumed to be that of ... D’Esposito." The Commissioner then noted that "The record indicates that there was one prior attempt to serve respondent D’Esposito several hours earlier on that same day" but said that she could not conclude "that two attempts at service, both within hours of each other on the same day, constitute a diligent effort."

Sudano also attempted to serve D'Esposito by mail. However the Commissioner said that "absent evidence of diligent efforts to effect service upon respondent D’Esposito, service by posting or by mail is ineffectual." The Commissioner explained that while the regulation permits service of a petition on a person "of suitable age and discretion" at the respondent’s residence where the respondent cannot be found, "there is no authority for alternative service by mail or by posting, absent express authorization from the Commissioner."

As the Commissioner did not authorize alternative service by mail, and no personal service was made upon D’Esposito, the Commissioner ruled that Sudano's appeal must be dismissed with respect to D’Esposito for improper service.

Turning to another issue, joining necessary parties, the Commissioner said that were she to accept Sudano's argument that four other teachers less senior than she were serving in positions is her tenure area, the employment rights of these four other teachers would be adversely affected were Sudano to prevail in her appeal.  Under these circumstances, theses other teachers were necessary parties and should have been joined and served as such.

Dismissing Sudano's appeal "for failure to join necessary parties,"  and for failing to properly serve other respondents, the Commissioner never reached the merits of her appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17078

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Layoff, Preferred Lists and Reinstatement - A 658 page electronic publication [e-book] focusing on the laws, rules and regulations, and selected court and administrative decisions, concerning the rights of public employees in New York State in the event of a layoff. More information is available on the Internet at: http://nylayoff.blogspot.com/.

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Hearsay testimony may be admitted in evidence in an administrative hearing

Hearsay testimony may be admitted in evidence in an administrative hearing

Demas v City of New York, 2017 NY Slip Op 03267, Appellate Division, First Department

A coach [Coach] of a school basketball team filed an Article 78 petition challenging the unsatisfactory performance rating (U-Rating) he received for the 2012-2013 school year. Supreme Court dismissed Coach's petition and Coach appealed. 

The Appellate Division unanimously affirmed the lower court's ruling, explaining that the determination that Coach's performance was unsatisfactory has a rational basis in the record.

The court said that the record indicated that while under his coaching and supervision, Coach's players "engaged in a pattern of profane and uncontrollable conduct, on and off the court, which included yelling profanities, making offensive hand gestures and aggressively interacting with the crowd during basketball games."

The Appellate Division also noted that on at least one occasion, "security agents had to escort the opposing team from the premises."

One of the issues raised by Coach in his petition was that the hearing officer had relied on "hearsay testimony" in sustaining the U-Rating he was given.

Hearsay testimony is testimony given by an individual who testifies under oath about what he or she has heard from others rather than testifying about that which he or she had personally witnessed. Although typically barred in a criminal trial, hearsay testimony is permitted in an administrative hearing and, if sufficiently relevant and probative, may constitute substantial evidence.*

Citing Paul v NYC Department of Education, 146 AD3d 705, the Appellate Division, rejecting Coach's contention that hearsay testimony should not have been admitted at the hearing, holding that the hearing officer "was entitled to rely on hearsay" in sustaining the U-Rating give Coach.

* In Gray v Adduci, 73 NY2d 741, the Court of Appeals said that it was well established that "hearsay evidence can be the basis of an administrative determination."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03267.htm

A Tweet may constitutes an assault and other electronic triggers resulting in litigation

A Tweet may constitutes an assault and other electronic triggers resulting in litigation

Source: Sui Generis--a New York law blog by Nicole Black  

In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy decision  [Tracy v Comm. of Labor, App. Div., 256 AD2d 800] indicates,* leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence. Tracy was denied unemployment insurance benefits following her termination after threatening her supervisor.

Nicole Black, Esq., writing in her LawBlog Sui Generis, reports a "tweeting event" that resulted in an individual being arrested and charged with committing a hate crime as the result of the tweeting. Ms. Black reports:

"Sometimes a tweet is just a tweet in the online world, and other times it can amount to an assault in the 'real' world. At least, that’s the difficult lesson learned by John Rayne Rivello, a Maryland man who was indicted in Texas and charged with the hate crime, Aggravated Assault with a Deadly Weapon, in violation of PC 22.02(a)(2)."** The Grand Jury’s indictment alleged that on December 16, 2016, Rivello “intentionally, knowingly, and recklessly caused bodily injury to Kurt Eichenwald, a disabled person…by inducing a seizure with an animated strobe image, knowing that the complainant was susceptible to seizures and that such animations are capable of causing seizures, and said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF), and an Electronic Device and Hands, during the commission of the assault…And further that the Defendant did intentionally select said Kurt Eichnewald primarily because of the said Defendant’s prejudice or bias against a group identified by race, ancestry, or religion, namely: persons of Jewish faith or descent.”

Employers have been sued for alleged defamation of an employee founded on postings made on the employer's web site as the decision in Firth v State of New York, 98 NY2d 365, demonstrates.***

The Office of the State Inspector General distributed a report entitled The Best Bang for Their Buck, in which Firth's management style was criticized at a press conference.  On the same day, the State Education Department posted an executive summary of the report with links to the full text of the report on its Government Locator Internet site.

As characterized by the Court of Appeals, the central issue in Firth's appeal concerned how "defamation jurisprudence, developed in New York courts in connection with traditional, i.e., printed, mass media communications, applies to communications in a new medium -- cyberspace -- in the modern Information Age" insofar as the statute of limitations for bringing such a law suit is concerned.

Other examples of such types of litigation include Murphy v Herfort, 140 A.D.2d 415, litigation resulting from communications between administrators, while Missek-Falkoff v Keller, 153 A.D.2d 841, is an example of a case in which one employee sued another employee claiming that the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker constituted libel. 

Allegations of defamation may also arise following an employee's former employer supplying information to a prospective employer concerning the individual in response to a request for "references." Buxton v Plant City, 57 LW 2649, provides an example of this type of complaint.

* See https://publicpersonnellaw.blogspot.com/2010/11/employee-denied-unemployment-insurance.html

** Ms. Black's article is posted on the Internet at:

http://nylawblog.typepad.com/suigeneris/2017/04/when-worlds-collide-a-tweet-constitutes-an-assault.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

*** See https://publicpersonnellaw.blogspot.com/2012/04/allegations-of-defamation-of-employee.html

New York State Comptroller Thomas P. DiNapoli recognizes administrative professionals serving in the Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli recognizes administrative professionals serving in the Office of the State Comptroller

Source: Office of the State Comptroller

Links to the Internet highlighted in COLOR

Honoring OSC's Administrative Professionals

This past week, Comptroller DiNapoli, on behalf of the entire staff, honored and thanked the administrative professionals who work at the Office of the State Comptroller for their hard work and dedication that help this office run effectively and efficiently. Six of these administrative professionals were highlighted on the Comptroller's Facebook page. Pictured, clockwise from top left: Shannon Cirilli, Tori Jones, Donna Reed, Angela Houle, Glory Ciuro and Leah Boggs.

The Department's Facebook page includes updates, photos, event listings and more items readers may find of interest. OSC encourages engagement and feedback, and invites comment and sharing the page with associates, family and friends.

Far Rockaway Pre-School Provider "Investor" Pleads Guilty in Theft of Education Funds Intended for Special Needs Students

New York State Comptroller Thomas P. DiNapoli and Queens District Attorney Richard A. Brown announced that a self-described investor in Island Child Development Center, once one of New York City’s largest providers of special education services to preschoolers with disabilities, has pleaded guilty for his participation in a scheme that stole millions of dollars in city and state funding between 2005 and 2012—money that was intended for special needs students between ages three and five.

Determining an appropriate disciplinary penalty under the circumstances

Determining an appropriate disciplinary penalty "under the circumstances"

King v New York State Off. of Alcoholism and Substance Abuse Servs., 2017 NY Slip Op 03098, Appellate Division, Third Department

Figueroa v New York State Off. of Alcoholism and Substance Abuse Servs., 2017 NY Slip Op 03104, Appellate Division, Third Department

As the Court of Appeals explained in Pell v Board of Education of Union Free School District No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, commonly referred to as the "Pell Doctrine," a court may "set aside a determination by an administrative agency only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." A result is shocking to one's sense of fairness, said the court, when the "sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to 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."

Both the King and Figueroa decisions address the application of the Pell Doctrine in the context of the loss of a license or certification required to lawfully perform the duties of the position, thereby resulting in the automatic termination of the individual's employment.*

The King Case

King, an Addictions Counselor 2 employed by the Office of Alcoholism and Substance Abuse Services [OASAS), was required to maintain a valid Credentialed Alcoholism and Substance Abuse Counselor [CASAC] certification, which credential is issued by OASAS.

In response to an "official complaint" alleging that King had violated certain ethical provisions prohibiting a counselor from engaging in a sexual relationship or activity with an OASAS client, OASAS notified King of the complaint and his right to an administrative hearing. King elected to exercise his right to the hearing.

The Hearing Officer found that King and the client had a relationship that "far exceeded an appropriate and professional one" and that "it comprised potential, and actual, harm" to the client. The Hearing Officer also found that, while the relationship between King and the client had "sexual overtones," it was "debatable" whether they engaged in an actual sexual encounter. As a penalty, the Hearing Officer recommended a one-year suspension of King's CASAC credential.

The Commissioner of Alcoholism and Substance Abuse Services adopted the Hearing Officer's recommendation and subsequently notified King that his employment was being terminated due to the suspension of his CASAC credential. King initiated a CPLR Article 78 proceeding challenging the suspension of his CASAC credential and the termination of his employment.

The Appellate Division said that judicial review of an agency's administrative determination made following a hearing is limited to determining whether the decision is supported by substantial evidence. The court indicated that "[S]ubstantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably ... probatively and logically."

The court ruled that there was substantial evidence to support the suspension of King's CASAC credential, including the client's testimony that King bought her gifts such as "a glass rose and earrings, and they exchanged personal messages and pictures via text messaging." Further, King admitted that he had regular contact with the client that was unrelated to his professional relationship with her. The Appellate Division concluded that in view of this relationship, the administrative decision that King engaged in inappropriate behavior with the client was supported by substantial evidence.

As to the penalty imposed, the suspension of King's CASAC credential and the automatic termination of his employment, the Appellate Division ruled that "[e]ven though there was insufficient evidence to establish that an actual sexual encounter between the client and [King] occurred, in light of [King's] inappropriate behavior ... the penalty of suspending [King's] CASAC credential does not shock one's sense of fairness."

The court also rejected King's argument that he was denied due process because OASAS did not proceed under the disciplinary procedures set forth in the relevant collective bargaining agreement, explaining that in this instance King's termination from OASAS "stemmed from his failure to maintain a qualification critical to his employment and, therefore, the provisions of the collective bargaining agreement did not apply."

The Figueroa Case

Figueroa was also an employee of OASAS, serving in the position of Addictions Counselor I. In accordance with a procedure set out in the relevant Collective Bargaining Agreement, OASAS interrogated Figueroa about her decision to go jogging alone with a patient on five separate occasions. Although Figueroa was not formally disciplined for this conduct, her supervisor issued a counseling memorandum concerning the event.

As an Addictions Counselor I, Figueroa was required to be a CASAC. In the course of a subsequent, unrelated investigation at the facility, Figueroa jogging incident and another incident involving her record keeping activities were raised. As a result OASAS filed two complaints alleging that Figueroa had violated certain CASAC canons of conduct.

After an investigation, OASAS advised Figueroa that it was recommending that her CASAC credential be suspended for three years -- one year for the jogging complaint and two years for the record-keeping complaint. Figueroa requested a hearing on both complaints, which were consolidated and an administrative hearing was held.

The Hearing Officer issued a report finding that Figueroa did engage in the conduct set forth in the two complaints, but recommended lesser penalties — a six-month suspension of Figueroa's CASAC credential for the jogging incident and a reprimand for her record-keeping discrepancies. OASAS issued a final order accepting the Hearing Officer's findings and recommendation with regard to the jogging complaint. As to the record-keeping complaint, OASAS suspended Figueroa's credential for six months — to run concurrently with the six-month suspension for the jogging complaint.

OASAS then advised Figueroa that she was terminated "as a result of [her] failure to maintain a valid, statutorily required qualification for [employment in her] position." Figueroa commenced a CPLR Article 78 proceeding challenging both the suspension of her credential and the determination to terminate her employment based on the suspension.

The Appellate Division said that given Figueroa's concession during the hearing that she went jogging with a patient and postdated certain records, it found that substantial evidence supported the Hearing Officer's determination with respect to the alleged acts of misconduct. Notwithstanding this holding, the court then considered the question of whether OASAS abused its discretion by imposing the concurrent suspensions that effectively compelled Figueroa termination for failing to have a "valid credential" in place.

Applying the Pell Doctrine, the Appellate Division concluded that "[u]nder the circumstances presented, [it found] that OASAS's determination to impose a six-month suspension of [Figueroa's] credential for each of the complaints was disproportionate to the offenses charged."

Due to the unique circumstance that Figueroa was employed by OASAS in a classified position in the Civil Service of the State, the Appellate Division said that OASAS knew that the practical effect of the suspension was that she would be rendered temporarily unqualified to hold her civil service position and, indeed, OASAS summarily dismissed her for failing to maintain her credential. The court concluded that this result makes little sense as:

1. Figueroa had been employed by OASAS as a CASAC for more than six years with no apparent disciplinary record and consistently satisfactory performance reviews;

2. Considering the jogging complaint, there was neither an allegation nor any evidence that Figueroa was engaged in an inappropriate relationship with the patient or that the patient was harmed in any way;

3. OASAS, with full knowledge of the regulations governing CASAC credentials, initially decided to simply counsel Figueroa about the jogging events and Figueroa testified that she did not engage in the same or similar conduct after being counseled;

4. With respect to the record-keeping complaint, when OASAS explained its determination to reject the Hearing Officer's penalty recommendation, it erroneously claimed that the Hearing Officer did not have the authority to recommend the penalty of reprimand;

5. The Hearing Officer noted the uncontroverted evidence was that, in accord with the then prevailing practice, Figueroa's supervisor directed her to postdate the records in question knowing that she was going to be out of the office and it was only after the complaint was lodged was this practice changed; and

6. There was no showing that the agency or the public was harmed or that Figueroa was personally enriched by her conduct.

The Appellate Division said that, in its view, OASAS should not disregard its role as employer where it is exercising its credentialing oversight, but that is essentially what occurred here. As an employer, OASAS chose only to counsel Figueroa, but, as the credentialing authority, it imposed an administrative penalty that mandated her termination, the ultimate disciplinary penalty.

Considering the nature of the misconduct, Figueroa's otherwise satisfactory employment record and the known impact of the penalty imposed, the Appellate Division found that the effective penalty of suspension of Figueroa's credential, which resulted in her termination from her employment, too severe and annulled the imposed the penalty of suspending Figueroa's credential and the resulting termination of her employment.

* With respect to the loss or failure to obtain or renew a required license or permit or certification, courts have viewed such individuals as “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Common examples include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make a reasonable inquiry to determine if the employee, in fact, possess the required document and thus may lawfully perform the duties of the position. An employee charged with failing to possess such a document required to perform the duties of his or position is only entitled to notice of the allegation and a reasonable opportunity to produce the required document. Relevant court rulings include Fowler v City of Saratoga Springs, 215 A.D.2d 819 (City Engineer lawfully dismissed for failure to obtain his Professional Engineer’s license by a specified date); Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspensions of teachers was lawful upon their teaching licenses expiring); and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator did not suffer unlawfully discrimination when a private sector employer terminated him after his driver’s license was suspended).

The King decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03098.htm

The Figueroa decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03104.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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