Residence in a municipality may not be a requirement for appointment as a sanitation worker

Residence in a municipality may not be a requirement for appointment as a sanitation worker

Opinions of the State Comptroller

The State Comptroller has issued an opinion (Op St Comp 80-11) indicating that an employee of a municipal Department of Sanitation may not be required to reside in the municipality. The Comptroller noted a section of the Public Officers Law which excepted sanitation workers from automatic removal from their position if they cease to be a resident of the municipality. Left unanswered is the effect of a local law which mandates such residence.

Town may provide for legal defense of councilman

Town may provide for legal defense of councilman

Opinions of the Attorney General

The Attorney General indicated that if a town councilman is sued for libel for remarks he made at a Town Board meeting, he may request that the Board provide for his defense. If the Board refuses, and he wins, he may recover the reasonable costs of his defense by an action against the Board.

N.B.  See the Corning v. Laurel Hollow, 48 NY2d 348, in which the Court held that without a statute providing for such reimbursement such payment would constitute an unlawful gift of public monies.

Determining if an individual is an employee of an employer

Determining if an individual is an employee of an employer

Griffin v. Sirva Inc., USCA, 2nd Circuit, Docket No. 15-1307

The New York Court of Appeals answered a certified question from the Second Circuit, holding that liability under §296(6) and under §296(15) of the New York State Human Rights Law [NYSHRL] is limited to an aggrieved party's employer.

The New York Court of Appeals then answered a second certified question by identifying the four factors to use in determining whether an entity is an aggrieved party's employer. On the basis of New York case law, the court identified the four factors as follows:

1. The selection and engagement of the employee by the entity;

2. The payment of salary or wages by the entity;

3. The power of dismissal of the individual by the entity; and

4. The entity's power of control over the employee's conduct.

In this case, two individuals had filed suit alleging that Sirva, Inc., as Allied's parent, can be held liable under the NYSHRL for employment discrimination on the basis of the individuals' respective criminal convictions.

Based on the answers to the certified questions by the Court of Appeals, the Second Circuit vacated the district court's grant of summary judgment and remanded the matter for further proceedings.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/doc/15-1307_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/hilite/

Applying the Doctrine of Abatement in a criminal action

Applying the Doctrine of Abatement in a criminal action

United States v Libous, USCA, 2nd Circuit, Docket#15-3979

Under the doctrine of abatement, the government has no right to retain fines imposed pursuant to a conviction that is subsequently vacated.

In this case, the Executrix of the estate of Thomas W. Libous, a former New York State Senator, moved to withdraw his then pending appeal, vacate the underlying judgment of conviction of making false statements to the FBI, and for remand to the district court for dismissal of the indictment and refund the fine and special assessment imposed upon Libous' conviction to his estate.

A federal jury had convicted former New York State Senator Thomas W. Libous of making false statements to the FBI in violation of 18 U.S.C. §1001. At sentencing, the district court imposed a tw-year term of probation on Libous, who doctors determined had less than a year to live, along with a $50,000 fine and the mandatory $100 special assessment.

Although the government consented to the abatement of Libous’ conviction, it opposed the return of the fine and special assessment. Incorrect said the Circuit Court, ruling that the government had no right to retain fines imposed pursuant to a conviction that is subsequently vacated and granted the Executrix's  motion in its entirety.

The court explained that "Under the well-established doctrine of abatement ab initio, when a convicted defendant dies pending an appeal as of right, his conviction abates, the underlying indictment is dismissed. Further, his or her estate is relieved of any obligation to pay a criminal fine imposed at sentence. In effect, all proceedings in the prosecution from its inception are abated.

To comply with this common law rule, said the court, “[T]he appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he [or she] had never been indicted or convicted.” In other words, “Under the doctrine of abatement ab initio . . . the defendant stands as if he [or she] never had been indicted or convicted.”

This is so because, in the interests of justice, a defendant not stand convicted without resolution of the merits of an appeal and to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served.”

As the Supreme Court held in Nelson v. Colorado, 137 S. Ct. 124, “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,” the state is required under the Fourteenth Amendment’s due process guarantee “to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.”

Once a defendant’s conviction is “erased, the presumption of [his or her] innocence [is] restored,” and the state “has no interest in withholding from [a defendant] money to which the [s]tate currently has zero claim of right.”

The Supreme Court, however, said "We express no view on how abatement operates, if at all, in the event the defendant commits suicide pending an appeal as of right.

The Circuit Court then granted the Executrix's motion and vacated Libous' judgment of conviction. It also remanded the matter to the federal district court "for the dismissal of the indictment and the return of the fine and special assessment imposed on Libous pursuant to his now-vacated conviction"

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/480bdaba-f569-4afc-a463-3b392b0da1be/5/doc/15-3979_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/480bdaba-f569-4afc-a463-3b392b0da1be/5/hilite/

National Guard personnel are state employees

 

National Guard personnel are state employees

Formal opinion of the Attorney General

The Attorney General has issued an opinion that National Guard personnel in training status are state employees for the purposes of §17 of the Public Officers Law. §17 provides for the State to defend its employees who are defendants in litigation resulting from the performance of their official duties.

An employee may not be terminated for a constitutionally impermissible reason, in violation of a statutory proscription or in bad faith

An employee may not be terminated for a constitutionally impermissible reason, in violation of a statutory proscription or in bad faith

Appeal of Aminah Lucio, Decisions of the Commissioner of Education, Decision No. 17,090

After addressing the issue of the timeliness of this appeal, which the Commissioner found to be timely, the Commissioner addressed the merits of Aminah Lucio's appeal.

Lucio contended that her U-rating should be annulled because "her due process rights were violated and she was never provided with a copy of the paperwork upon which her employer, the New York City Department of Education [DOE], relied for its determination in advance of the hearing and [it] failed to follow certain rules and regulations contained in Section IV of the Appeal Process in the Rating Manual."*

Lucio also argued that DOE's decision to rate her unsatisfactory and discontinue her probationary services "was arbitrary and capricious, an abuse of discretion, made in bad faith and discriminatory ... [and she was] discontinued due to retaliation and racial discrimination."

The Commissioner explained that standard of proof required to overturn a teacher rating is very high and in the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his or her judgment for that of the appointing authority and that in such situations the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which her or she seeks relief.

In this instance the Commissioner found that Lucio had demonstrated that DOE's determination to give her an unsatisfactory rating "was made in gross error." DOE, said the Commissioner  failed to provide Lucio with any supporting documentation regarding her rating before the hearing, thus preventing Lucio from having any way of knowing what documentation was used as the basis for the performance rating here being challenged.

The Commissioner also noted that the hearing officer found that "there were several other flaws in [DOE's] appeal procedures, commenting that  In Matter of Blaize v. Klein, 68 AD3d 759, the Appellate Division ruled that "a teacher’s failure to receive, before the hearing, the complete set of documents on which the rating was based deprived the teacher of a substantial right, thus rendering the rating made in violation of a lawful procedure and subject to reversal."  

Based on the deficiencies in the review process which undermined the integrity and fairness of the process and the lack of hearing testimony to substantiate DOE's rationale for Lucio's termination, the Commissioner found that its decision to terminate Lucio was made in bad faith. 

Although a board of education has the unfettered right to terminate a probationary teacher’s employment for any reason, such a decision will not be sustained where the petitioner establishes that he or she was terminated "or a constitutionally impermissible reason, in violation of a statutory proscription or in bad faith, and granted Lucio's appeal.

The Commissioner directed DOE to reinstate Lucio to the position "to which she is entitled in accordance with this decision, and provide her with back pay and benefits and seniority credit from August 20, 2010, less any compensation she may have earned in the interim." 

* Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

N.B. Lucio served in a position in the Unclassified Service of the Civil Service. Providing for the payment of "back pay and benefits" is different in situations involving the reinstatement of an individual in the Classified Service of the Civil Service terminated from his or her position. In 1985 §77 of the Civil Service Law was amended eliminating the deduction for “compensation derived from other employment” upon reinstatement by court order. The same is true with respect to such a reinstatement directed by a civil service commission pursuant to §76 of the Civil Service Law.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17090

Town may discontinue health insurance coverage under certain circumstances

Town may discontinue health insurance coverage under certain circumstances

Source: Informal Opinions of the State Comptroller, Op St Comp 80-105

The State Comptroller has issued an opinion indicating that a town may terminate the health insurance coverage of a retired town employee when the retiree becomes qualified for Medicare coverage benefits.

It appears that the views of the Comptroller would be limited to local governments which are not participating in the New State Employees’ Health Insurance Program as §167-a of the Civil Service Law controls with respect NYSHIP participating employers ins such situations.

Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"

Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"

Fernandez v Zoni Language Center, USCA, 2nd Circuit, Docket #16-1689-cv

Zhara Fernandez and certain others [Plaintiffs] were employed as English teachers by the Zoni Language Center. Acting on their own behalf and others similarly situated, Plaintiffs alleged that Zoni was in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., and the New York Labor Law because it failed to pay them the statutory minimum wage for hours worked out of the classroom and the statutory overtime required when Plaintiffs' classroom and out-of-classroom work exceeded 40 hours per week. 

The Second Circuit affirmed the district court's dismissal of the Plaintiffs' FLSA claims, holding that Zoni was exempt from the FLSA's mandatory minimum wage and overtime requirements as they were not applicable to teachers working as bona fide professionals. Zoni, said the court, was an "educational establishment" within the meaning of 29 C.F.R. 541.204(b).

Professional employees employed at elementary and secondary schools, institutions of higher education, or other educational institutions are deemed employees excluded from claiming compensation consistent with the mandatory provisions of the FLSA. In addition, for purposes of this exclusion, no distinction is drawn between public and private schools, or between those operated for profit and those that are not for profit.

The professional exclusion applies to employees who have as a primary duty, teaching, tutoring, instructing, or lecturing in the activity of "imparting knowledge and [who] do so in an educational establishment." Accordingly, employers of such personnel are not mandated to pay such employees minimum wages, overtime or similar compensation related rates otherwise required by Federal or New York State law with respect to its non-professional personnel.

An employee on leave from work due to a reasonable fear of domestic violence is not "unavailable" or unwilling to work for the purposes of eligibility for unemployment insurance benefits

An employee on leave from work due to a reasonable fear of domestic violence is not "unavailable" or unwilling to work for the purposes of eligibility for unemployment insurance benefits

Matter of Derfert (Commissioner of Labor), 2017 NY Slip Op 04016, Appellate Division, Third Department

To be eligible for unemployment insurance benefits, claimant must be "ready, willing and able to work." Further, whether a claimant is available for work ordinarily presents a question of fact for the Unemployment Insurance Appeal Board [Board] to determine and its decision will be sustained provided it is supported by substantial evidence in the record.

The uncontroverted evidence in this appeal from the Board's denial of claimant's application for unemployment insurance benefits for the period May 2, 2015 through June 7, 2015, was that claimant did not report to work, with the employer's approval, because a former boyfriend was physically and verbally abusing her. Such abuse included calling claimant on a daily basis and leaving threatening and disparaging voicemail messages and regularly sat in a car outside or near her home waiting for her to emerge.*

Although the Board ruled that claimant was ineligible to receive unemployment insurance benefits because she was not available for employment, the Appellate Division said that it disagreed with the Board ruling that claimant's leave of absence "necessitated by the actions of a perpetrator of domestic abuse rendered her legally unavailable for work."

The court, citing Labor Law §593(1)(b)(i), explained that the Legislature had provided that an employee may not be disqualified from receiving unemployment insurance benefits for separating from employment "due to any compelling family reason," which includes "domestic violence . . . which causes the individual reasonably to believe that such individual's continued employment would jeopardize his or her safety or the safety of any member of his or her immediate family."

The genesis of §593(1)(b)(i) was a ruling by a New Jersey appeals court that a woman who was forced to quit her job due to domestic violence was not entitled to collect unemployment benefits. The Appellate Division said that §593(1)(b)(i) indicated "the legislative intent remained to ensure that 'individuals who are voluntarily separated from employment due to compelling family reasons are eligible for [unemployment insurance] benefits.'"

The Board had, in this instance, rejected the claimant's application for benefits notwithstanding the claimant's uncontroverted testimony that she was the victim of domestic violence, stalking and harassment, as well as her testimony that she was willing and able to work during the period in issue but was prevented from leaving her home to get to work due to her justifiable fear of further violence by her former boyfriend.  

The Appellate Division disagreed with the Board's holding that an employee who takes a leave from work due to a reasonable fear of domestic violence, a "compelling family reason" under Labor Law §593(1)(b), is "unavailable" for or unwilling to work and is, therefore, ineligible for unemployment insurance benefits under Labor Law §591(2). The court said such a ruling "contradicts the intent underlying the protection afforded to domestic violence victims from disqualification for unemployment insurance benefits."

Accordingly, the court ruled the Board should not have found claimant to be ineligible for unemployment insurance benefits due to unavailability. It then reversed the Board's determination and remanded that matter to the Board "for further proceedings not inconsistent with this Court's decision."

* The decision notes that such abuse commenced after a "stay-away order of protection" expired and claimant had been unsuccessful in obtaining a new order.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04016.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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Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss

Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss

England v New York City Dept. of Envtl. Protection, 2017 NY Slip Op 03948, Appellate Division, Second Department

The petitioner [Petitioner] in this Article 78 action had completed and passed a civil service exam for appointment to the position of Watershed Maintainer with the New York City Department of Environmental Protection [Department]. The Petitioner's name was placed  on an eligible list of candidates by the New York City Department of Citywide Administrative Services. Petitioner was subsequently considered, but not selected, for three separate vacancies for the position of Watershed Maintainer. Petitioner was then declared ineligible for further certification or appointment from the list established for the Department.

Petitioner then filed an Article 78 petition seeking a review a determination of the Department's decisions declining to select Petitioner for appointment to the position. Supreme Court granted the Department's motion to dismiss the Article 78 petition "for failure to state a cause of action and, in effect, dismissed the proceeding. Petitioner appealed.

Pointing out that although in an Article 78 motion to dismiss "only the petition is considered," the Appellate Division noted that all of allegations set out in the petition "are deemed true, and the petitioner is accorded the benefit of every possible favorable inference."

In contrast, said the court, "bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference."

Applying these principles, the Appellate Division ruled that Supreme Court properly granted the Department's motion to dismiss the petition filed by Appellate Division, Second Department because it failed to state a discrimination claim and offered no more than "speculation and bare legal conclusions without any factual support."

Further, said the court, Petitioner's allegations that the Department refused to hire him because of a prior arrest history was unsupported by any factual contentions and constituted "mere legal conclusions, and are insufficient to state a claim."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03948.htm