ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

June 15, 2017

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:

June 14, 2017

Educational malpractice


Educational malpractice
Helm v. Professional Children’s School, 103 Misc 2d 1053

In Helm the Supreme Court held that problems, including the practical impossibility of proving that the alleged malpractice of the teacher was the cause of the learning deficiency claimed by the parents of a child and the fact that student attitudes, motivation, home environment and temperament may all play an essential role, should, as a matter of public policy, bar consideration by the Court of Claims of educational malpractice against either public or private schools.

The opinion referred to the decision in Donahue v. Copiague Union Free School District, 47 NY2d 440, a case that involved a similar question.

The anatomy of a discrimination action


The anatomy of a discrimination action
Clarke v Metropolitan Transp. Auth., 2017 NY Slip Op 04421, Appellate Division, Second Department

In processing an employment discrimination claim "A plaintiff alleging discrimination in employment has the initial burden to establish . . . that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination"

If the individual makes such a prima facie showing, the burden of going forward shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision."

The burden of going forward then shifts back to the plaintiff "to establish every element of intentional discrimination, and if the employer had advanced a "legitimate, nondiscriminatory reasons for the challenged actions," to show that the employer's explanation or explanations were pretextual.

In this action seeking to recover damages for alleged employment discrimination Supreme Court, granted the Metropolitan Transportation Authority's [MTA] motion for summary judgment dismissing Edmond Clarke's causes of action alleging employment discrimination on the basis of age and sex, and hostile work environment.
The Appellate Division, in response to Clark's appeal challenging the Supreme Court's ruling, affirmed the lower court's determination.

The Appellate Division explained that in this instance MTA was, prima facie, entitled to judgment as a matter of law dismissing the cause of action alleging employment discrimination on the basis of age and sex by offering legitimate, nondiscriminatory reasons for the challenged actions and demonstrating the absence of material issues of fact as to whether their explanations were pretextual.

A hostile work environment exists where the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." However, said the court, "Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a "mere offensive utterance," and whether the alleged actions "unreasonably interfere[ ] with an employee's work" are to be considered in determining whether a hostile work environment exists."

Further, noted the Appellate Division, "The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an "objectively hostile or abusive environment—one that a reasonable person would find to be so."

MTA, said the court, "established [its] prima facieentitlement to judgment as a matter of law dismissing the cause of action alleging the existence of a hostile work environment by demonstrating that the conduct and remarks about which Clark complained were not sufficiently severe or pervasive as to permeate the workplace and alter the conditions of his employment at MTA.

The decision is posted on the Internet at:

Circumstantial evidence relied upon to sustain a finding that an employee used his or her employers resources for private purposed in violation of law, rule or regulation


Circumstantial evidence relied upon to sustain a finding that an employee used his or her employers resources for private purposed in violation of law, rule or regulation 
Oberman v New York City Conflicts of Interest Bd., 2017 NY Slip Op 02366, Appellate Division, First Department

The New York City Conflicts of Interest Board, based on "strong circumstantial evidence" including records of numerous calls involving Igor Oberman's work telephone and donations to his political campaign, concluded that Oberman had used his public employer's resources for private purposes in violation of New York City Charter §2604(b)(2) and 53 RCNY § 1-13(a) and (b) and imposed a civil penalty of $7,500.

The Appellate Division dismissed Oberman's appeal, finding that the Board's determination was "based on substantial evidence" and there was no basis to disturb the credibility determinations of the Administrative Law Judge.

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

The decision is posted on the Internet at:

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination


Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination
Enlarged City Sch. Dist. of Middletown N.Y. v Civil Serv. Empls. Assn., Inc., 2017 NY Slip Op 02421, Appellate Division, Second Department

Thomas Turco, a member of the Civil Serv. Empls. Assn., Inc. [Union], sustained an on-duty injury to his left shoulder. After Turco was out of work for more than one year on Workers' Compensation leave, the district terminated his employment pursuant to Civil Service Law §71. Turco filed a grievance, alleging that such termination violated the CBA. After Turco's grievance was denied, the Union filed a demand for arbitration. Ultimately the Appellate Division granted the district's motion for a temporary stay of the arbitration proceedings.

Conceding the general policy favoring the resolution of disputes by arbitration, the Appellate Division held that some matters, because of competing considerations of public policy, cannot be heard by an arbitrator, explaining "If there is some statute, decisional law or public policy that prohibits arbitration of the subject matter of dispute, . . . the claim is not arbitrable'."

In this instance the district contended that arbitration of the subject matter of the dispute was prohibited by public policy, and in effect, decisional law. The Appellate Division agreed citing Matter of Economico v Village of Pelham (50 NY2d 120, overruled on other grounds Matter of Prue v Hunt, 78 NY2d 364). In Economico the Court of Appeals held that "public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination."

The district terminated Turco's employment pursuant to Civil Service Law §71 which provides that a public employer may terminate an employee who is absent due to an occupational disability for a cumulative period of one year if the employee remains physically or mentally unable to return to work.*

The Appellate Division noted that Civil Service Law §71 establish "the point at which injured civil servants may be replaced," as it "strike a balance between the recognized substantial State interest in an efficient civil service and the interest of the civil servant in continued employment in the event of a disability." The same is true, said the court, with respect to the termination of an individual absent on §72 leave for “ordinary disability” -- a disability unrelated to work -- pursuant to §73 of the Civil Service Law.**

Thus, concluded the court, the abrogation of the authority granted to a public employer by the statute to terminate the employee absent on §71 leave is implicated in Turco’s situation. As an arbitrator would not be able to fashion a remedy that would not violate public policy in this matter, the Appellate Division ruled that “a preemptive stay of the instant matter is not improper” and Supreme Court should have granted the school district’s petition to permanently stay arbitration.

The decision is posted on the Internet at:


* N.B. Where an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

** Although the phrase used in the decision is "be discharged from his position," such termination is not a pejorative dismissal as both §71 and §73, in pertinent part, specifically provide that an individual terminated from a §71 or a §72 leave, as the case may be, “may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.”

Hiring policy prohibiting the appointment of teachers "above Step 5" found unlawful discrimination because of age


Hiring policy prohibiting the appointment of teachers "above Step 5" found unlawful discrimination because of age
Geller v. Markham, 635 F.2d 1027.

In Geller a School Board policy of not initially employing teachers above “Step 5” (i.e. teachers having more than 5 years of teaching experience) was held to constitute unlawful discrimination because of age by the 2nd Circuit Court of Appeals.

The rejected teachers were able to show that 93% of teachers over age 40 had more than 5 years of teaching experience but only 60% of teachers under age 40 had more than 5 years of such experience.

Failure to testify concerning the event permits a disciplinary hearing officer to draw the strongest inference against the individual permitted by the record



Failure to testify concerning the event permits a disciplinary hearing officer to draw the strongest inference against the individual permitted by the record
Varriale v City of New York, 148 AD3d 650 

The New York City Board of Education terminated Suzanne Varriale's employment as a tenured school teacher.

The Appellate Division affirmed the Board of Education's determination noting that although Varriale "was a thirteen-year employee with no prior disciplinary history, and no charges had ever previously been preferred against her, the penalty of termination was not shocking to one's sense of fairness" in light of the seriousness of the charges filed against her and the fact that the record showed that Varriale "had strayed from her duties as a school teacher by deliberately escalating a confrontation with a student by yelling expletives and threatening him with violence."

Noting that Varriale "showed no remorse nor appreciation for the seriousness of her conduct to support a finding that she would not engage in similar conduct if faced with such circumstances in the future," the Appellate Division held that as she declined to take the stand to testify concerning the event, "the hearing officer was permitted to draw the
strongest inference against her permitted by the record."

The decision is posted on the Internet at:

June 12, 2017

The anatomy of a discrimination action


The anatomy of a discrimination action
Clarke v Metropolitan Transp. Auth., 2017 NY Slip Op 04421, Appellate Division, Second Department

In processing an employment discrimination claim "A plaintiff alleging discrimination in employment has the initial burden to establish . . . that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination"

If the individual makes such a prima facie showing, the burden of going forward shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision."

The burden of going forward then shifts back to the plaintiff "to establish every element of intentional discrimination, and if the employer had advanced a "legitimate, nondiscriminatory reasons for the challenged actions," to show that the employer's explanation or explanations were pretextual.

In this action seeking to recover damages for alleged employment discrimination Supreme Court, granted the Metropolitan Transportation Authority's [MTA] motion for summary judgment dismissing Edmond Clarke's causes of action alleging employment discrimination on the basis of age and sex, and hostile work environment.
The Appellate Division, in response to Clark's appeal challenging the Supreme Court's ruling, affirmed the lower court's determination.

The Appellate Division explained that in this instance MTA was, prima facie, entitled to judgment as a matter of law dismissing the cause of action alleging employment discrimination on the basis of age and sex by offering legitimate, nondiscriminatory reasons for the challenged actions and demonstrating the absence of material issues of fact as to whether their explanations were pretextual.

A hostile work environment exists where the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." However, said the court, "Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a "mere offensive utterance," and whether the alleged actions "unreasonably interfere[ ] with an employee's work" are to be considered in determining whether a hostile work environment exists."

Further, noted the Appellate Division, "The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an "objectively hostile or abusive environment—one that a reasonable person would find to be so."

MTA, said the court, "established [its] prima facieentitlement to judgment as a matter of law dismissing the cause of action alleging the existence of a hostile work environment by demonstrating that the conduct and remarks about which Clark complained were not sufficiently severe or pervasive as to permeate the workplace and alter the conditions of his employment at MTA.

The decision is posted on the Internet at:


June 11, 2017

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits

 
Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits
Matter of Telemaque (Commissioner of Labor), 2017 NY Slip Op 02109, Appellate Division, Third Department

Veronica Telemaque appealed the decision of the Unemployment Insurance Appeals Board that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Telemaque had been found guilty and dismissed from her position after a hearing on disciplinary charges filed against her pursuant to Education Law §3020-a for allegedly engaging in misconduct, conduct unbecoming and/or prejudicial, insubordination and violating the employer's rules.

The Appellate Division said that Telemaque's primary challenge concerns the disciplinary Hearing Officer's factual and credibility determinations and alleged evidentiary errors were made at the disciplinary hearing. The Board noted that it did not appear that Telemaqueappealed that disciplinary determination and "her challenges to the merits of that determination may not be raised in this unemployment insurance proceeding."

As Telemaque had "a full and fair opportunity to litigate the charges of misconduct at [her §3020-a disciplinary] hearing, the Appellate Division said that the Board had "properly gave collateral estoppel effect to the Hearing Officer's factual determinations" in that proceeding and sustained the Board's determination.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm 

As the Regulations of the Commissioner of Education's does not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination


As the Regulations of the Commissioner of Education's does not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination
Decisions of the Commissioner of Education, Decision No. 17,062

Susan Ford-Gambee Wilhelm filed a appeal with the Commissioner of Education challenging the action of the Board of Education of the Eden Central School District assigning her to teach five classes following a reduction in her position from a full-time position to a .83 full time equivalent [FTE] position. 

Wilhelm contended that she was a full-time teacher within the meaning of §00.2(i) of the Commissioner’s regulations "because she continued to teach five classes each day, which she contended is a 1.0 FTE." She claimed that Eden has improperly treated her position as a .83 FTE and compensated her on that basis, even though she contended that she was a full-time teacher.

The Commissioner said that the essence of Wilhelm's argument appeared to be that §100.2(i) defines a full-time teaching load as five classes and thus that she is entitled to compensation as a full-time teacher based on the classes she was assigned to teach by the school district.

§100.2(i), relating to teaching assignments, provides that, with respect to teaching staff in public schools, the number of daily periods of classroom instruction for a teacher should not exceed five. Further, said the Commissioner, pursuant to the regulation, "a school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy."

The Commissioner said that a petitioner, here Wilhelm, has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

Wilhelm, however, did not contend that her number of daily periods of classroom instruction exceeds five, admitted that she only taught five classes for the 2016-2017 school year and did not claim that she was assigned a daily teaching load in excess of 150 students. 

Rather she argued that §100.2(i) defines a full-time teaching load as five classes and thus she was entitled to compensation as a full-time teacher. 

The Commissioner disagreed, explaining that §100.2(i) "merely establishes a policy that teachers should not be assigned more than five classes or a teaching load of 150 pupils and requires that a board of education be able to justify any such assignment, for the purpose of maintaining quality instruction for students." Further, said the Commissioner, the regulation does not define full-time status for purposes of compensation, noting that in Wilhelm's case, was governed by the applicable collective bargaining agreement.

The decision is posted on the Internet at:

June 09, 2017

A collective bargaining agreement may expand an employer's obligation to provide information to an employee organization not specifically provided for by law


A collective bargaining agreement may expand an employer's obligation to provide information to an employee organization not specifically provided for by law
City of New York v New York State Nurses Assn., 2017 NY Slip Op 04492, Court of Appeals

New York State Nurses Association (Union) filed an improper practice petition with the Board of Collective Bargaining of the City of New York (the Board), alleging that it had a right to certain information pursuant to New York City's Collective Bargaining Law (NYCCBL) §12-306(c)(4), in connection with disciplinary proceedings brought against two nurses employed by the City's Human Resources Administration (HRA).

HRA refused to provide the information the Union sought in connection with its representing the two nurses in the disciplinary action, including the "relevant policies and the HRA Code of Conduct, information on time-keeping, patient treatment records for the relevant dates, witness statements, and a written statement detailing how the nurses violated the HRA Code of Conduct." HRA also refused to permit the Union to question "the witnesses who gave statements and the nurses' supervisors."

The Board, with two members dissenting, ruled that it was an improper practice for the City to refuse to comply with certain of the information requests, finding that §12-306(c)(4) extends to information "relevant to and reasonably necessary to the administration of the parties' agreements, such as processing grievances." The Board, however, found that the Union was not entitled to witness statements or a written explanation regarding the violation or the opportunity to question the identified witnesses or supervisors, concluding that §12-306(c)(4) is limited to information "normally maintained in the regular course of business."

The City filed an Article 78 petition challenging the Board's determination.

Supreme Court granted the City's petition and annulled the Board's determination, concluding that the Board improperly extended the Union's right to obtain information for grievances pursuant to contract administration to disciplinary proceedings, noting that "the agreement does not explicitly require the City to provide information in disciplinary proceedings."

The Appellate Division unanimously reversed, holding that "the Board's decision, which was entitled to 'substantial deference,' had a rational basis" but granted the City leave to appeal on a certified question of whether its order was properly made.

The Court of Appeals affirmed the Appellate Division's ruling, Judge Garcia dissenting, explaining:

1. NYCCBL provides that it is improper practice for a public employer "to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees" and requires both employers and unions "to furnish to the other party, upon request, data normally maintained in the regular course of business, reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining."

2. The Board held that NYCCBL §12-306(c)(4) extended to information "relevant to and reasonably necessary for the administration of the parties' agreements, such as processing grievances, and/or for collective negotiations on mandatory subjects of bargaining."

3. The Appellate Division noted, "... the City and HRA do not dispute the Board's precedent holding that the duty to furnish information already applied to 'contract administration' and 'grievances' (including potential grievances)."

4. Union had bargained for and obtained the right to obtain such information in the context of a disciplinary proceedings and not just "contract" grievances by defining "grievance" to include disciplinary action in the relevant collective bargaining agreement.

The decision is posted on the Internet at:

June 07, 2017

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.

June 06, 2017

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:

June 05, 2017

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:

June 02, 2017

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:

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.

May 31, 2017

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.


May 25, 2017

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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May 24, 2017

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

May 22, 2017

Governor Cuomo announces judicial appointmeants to the Appellate Divisions of Supreme Court


Governor Cuomo announces judicial appointmeants to the Appellate Divisions of Supreme Court
Source: Office of the Governor

Governor Andrew M. Cuomo today appointed the Honorable Rolando Acosta as Presiding Justice of the Appellate Division for the First Judicial Department and elevated nine elected Supreme Court Justices from across New York to the four Appellate Departments of New York State.

In the Appellate Division-First Department Governor Cuomo designated Associate Justice Rolando Acosta to Presiding Justice of the First Department-Appellate Division, and appointed Supreme Court Justices Cynthia Kern, Peter Moulton, Jeffrey Oing and Anil Singh to fill four Associate Justice vacancies. The First Department includes New York and Bronx counties.

For Appellate Division-Second Department the Governor designated Supreme Court Justices Linda Christopher and Angela Iannacci to fill two Associate Justice vacancies on the Appellate Division-Second Department.  The Second Department comprises a ten-county downstate region that includes Kings, Queens, Richmond counties, Long Island and the lower Hudson Valley.  

Appoints to the bench in the Appellate Division-Third Department are as follows: Supreme Court Justices Stanley Pritzker and Philip Rumsey will fill two Associate Justice vacancies on the Appellate Division-Third Department.  The Third Department covers twenty-eight counties in the Eastern and Northern portions of Upstate New York, ranging from the mid-Hudson Valley to the Canadian Border and as far west as Schuyler and Chemung counties in the Southern Tier.  

In the Appellate Division-Fourth Department Governor Cuomo designated Supreme Court Justice Joanne Winslow to fill an Associate Justice vacancy on the Appellate Division-Fourth Department.  The Fourth Department encompasses twenty-two Upstate Counties in the Western and Central portions of the State, stretching as far north as Jefferson County.

Each of the designated Justices were chosen among candidates reviewed and advanced for consideration by Judicial Screening Committees from one of the four Appellate Departments across New York.  These Committee’s undertook a thorough review of all applications and written material, including conversations with numerous practitioners familiar with the candidate’s career and job performance.  In addition, the Committee conducted in-person interviews of dozens of elected Supreme Court justice candidates from across the State, with only those applicants deemed “highly qualified” by the Committees submitted to the Governor for consideration for appointment to Appellate Division.

Under the New York State Constitution and Judiciary Law, the Governor has the authority to appoint Presiding Justices to each Appellate Division from among those who have been elected as Justices of the Supreme Court. These appointments are not subject to Senate confirmation.

Brief biographies of these appointees are set out below:


Appellate Division-First Department

Honorable Rolando T. Acosta

Justice Acosta was elected New York State Supreme Court Justice in 2002 in the 1st Judicial District, and was appointed to the Appellate Division in 2008.  His judicial career began in 1997 as a New York City Civil Court Judge, where he spearheaded the creation of the Harlem Community Justice Center.    Prior to his judicial service, he held various posts with the Legal Aid Society, including Attorney-in-Charge of the largest civil trial office and Director of Government.  Justice Acosta has also served as Deputy Commissioner for Law Enforcement for the New York City Commission on Human Rights. In addition to his judicial responsibilities, Justice Acosta has been an active community servant and worked tirelessly to enhance the legal profession for all participants.  He has served as the President of the Latino Judges Association, during which time he was a mentor and teacher with the Latino Community, and as the Vice President of the New York City Bar Association.  He was selected as the 2004 Judge of the Year by the National Hispanic Bar Association, and is currently a member of the New York State Commission on Judicial Conduct, the Chief Judge’s Task Force to Expand Access to Civil Legal Services in New York, and the City Bar’s Council on the Profession. Justice Acosta was raised in the South Bronx and Washington Heights, after having emigrated from the Dominican Republic at age 14.  He is a graduate of Columbia College and Columbia University School of Law.  He currently serves as a Trustee of Columbia University and as a member of The Dean’s Council of Columbia Law School.

Honorable Cynthia S. Kern

Justice Kern has been a jurist since 2000 when she was first elected to the New York City Civil Court.  In 2008, she was designated an Acting Supreme Court Justice for the Civil Branch in New York County and was re-elected to City Civil Court in 2010.  The next year she successfully ran to fill a vacancy for New York Supreme Court Justice in the First Judicial District and has continued in that capacity since her election.  Prior to taking the Bench, Justice Kern was a practicing attorney for 15 years.  She began as a litigation associate with the law firm of Rosenman, Colin, Freund, Lewis & Cohen, before taking a similar position with Moses & Singer.  As a civil litigator, she focused on commercial and real estate litigation.  In 1992, she became the Principal Court Attorney for the Honorable Joan B. Lobis, New York Supreme Court.  Justice Kern graduated from the State University of New York at Stony Brook in 1982 and received her law degree from New York University School of Law in 1985.

Honorable Peter H. Moulton

Justice Moulton first became a jurist when elected as a Civil Court Judge in New York County on 2003.  In April 2010, Justice Moulton was appointed to be an Acting Supreme Court Justice of the Supreme Court, New York County.  He subsequently was elected to the Supreme Court in 2013.  As a judge, he has also held several leadership positions, including the Supervising Judge of the Civil Court, New York County from November 2010 through January 2014, and since March 2015 has served as both the Administrative Judge for Civil Matters, First Judicial District, and the Coordinating Judge of the New York City Asbestos Litigation.  Prior to sitting on the bench, Justice Moulton was the Principal Law Clerk to the Honorable Leland DeGrasse, Supreme Court Justice from 1995 to 2003.  He began his legal career as a law clerk to Judge Charles E. Stewart, Jr. in the Southern District of New York from 1986 to 1988, before joining the New York City Law Department’s Affirmative Litigation Division as a Staff Attorney.  Justice Moulton graduated from Stanford University in 1983 with a B.A. in International Relations and received his J.D. from Columbia Law School in 1986.

Honorable Jeffrey K. Oing

Justice Oing was elected to serve as a New York City Civil Court Judge in January 2004.  In 2011, he was elected to the Supreme Court of the State of New York in the 1st Judicial District and assigned to the Commercial Division.  Prior to taking the bench, he served as Deputy General Counsel to the New York City Council in 2002 and 2003, and also served as Deputy Director of the New York City Districting Commission.  From 1993 to 2002, Justice Oing worked in the New York Supreme Court in a variety of capacities, including as Law Secretary to Justice Walter B. Tolub (2000-02), Principal Appellate Court Attorney for the First Department (1998-2000), Law Secretary to Justice Marilyn G. Diamond (1995-98), and a Principal Court Attorney (1993-95).  In 1992, Justice Oing served as an Assistant Counsel to New Jersey Governor James J. Florio.  Prior to his public sector legal career, he was an associate at the New Jersey firm of Herold & Haines and began his career with the law firm of Donovan Leisure Newton & Irvine in 1990.  Justice Oing graduated from Columbia College in 1986 with a B.A. in English and received his J.D. from New York University School of Law in 1989.

Honorable Anil C. Singh

Justice Singh has been a jurist since 2003, after being elected as a New York City Civil Court Judge in 2002.  He was designated an Acting Supreme Court Justice in 2010 and was elected to his current role as a New York State Supreme Court Justice in the 1st Judicial District in November 2013.  In April 2015, Justice Singh was appointed to the Commercial Division.  Prior to taking the bench, Justice Singh clerked for the Honorable Alice Schlesinger from 1987 to 2002.  Justice Singh was born in Gazipar, India in 1958 and immigrated to the United States in 1976 and upon this designation, he becomes the first Indian-American elevated to the Appellate Court in New York.  He graduated from Lawrence University in 1980 with a B.A. in Political Science and History and received his J.D. from the Antioch School of Law in 1986. 


Appellate Division-Second Department

Honorable Linda J. Christopher

Justice Christopher has been a jurist since 2002 when she began serving as Acting Justice for the Villages of Upper Nyack and Grandview.  In 2005, Justice Christopher was elected to the Rockland County Family Court where she presided through 2010.  While serving as a Family Court Judge, she also served as Acting Supreme Court Justice for the Integrated Domestic Violence Court from 2006 through 2010.  Since 2011, Justice Christopher has been a Supreme Court Justice and currently serves as the Supervising Judge for Matrimonial Matters for the Ninth Judicial District.  She began her legal career in 1980 as a law clerk for the Honorable Orelle Weeks in Denver Juvenile Court, followed by taking an Associate position with the law offices of Jerome Trachtenberg.  She also served briefly as a Hearing Examiner for Rockland County Family Court before starting her own practice in 1986.  Justice Christopher was in private practice with the Law Offices of Linda Christopher from 1986 to 1992, partnered in the firm of Christopher and Draine from 1992 to 1996, before returning to her private practice until her election to Family Court in 2004.  Justice Christopher graduated from the University of Colorado in 1976 majoring in Political Science before earning her J.D. from Antioch School of Law in 1980.

Honorable Angela G. Iannacci

Justice Iannacci has served as a member of the bench since 2004, when she was elected to Family Court in Nassau County.  Two years later, she was elected a Supreme Court Justice in Nassau County, and currently serves as Associate Justice for the Appellate Term in the 9th and 10th Judicial Districts, a position to which she was appointed in 2009, as well as continuing her Supreme Court docket in the 10th Judicial District.  Prior to taking the bench, Justice Iannacci held several legal positions including Principal Court Attorney to the Honorable Allan L. Winick, as Hearing Officer in Small Claims Assessment Review Proceedings, and fifteen years of extensive private practice with AIG, Rossano, Mose, Hirschhorn & Corleto, P.C., in Garden City, NY, and Gordon & Silber, P.C., in Manhattan concentrating in personal injury, medical malpractice and general liability matters.  She also maintained a solo general practice, Angela G. Iannacci, P.C., of Great Neck, NY while serving as a Hearing Officer from 1996-2001.  Additionally, she has served on the Judicial Committee on Women in the Courts, the NYS Anti-Discrimination Panel, NYS Office of Court Administration’s Best Practices Committee for Matrimonial Judges, the NYS Domestic Violence Task Force, and the NYS Special Commission on Fiduciary Appointments.  Justice Iannacci received her B.A. from George Washington University in 1983 majoring in Political Science and Economics, and her J.D. from Pace University School of Law in 1986. 


Appellate Division-Third Department

Honorable Stanley L. Pritzker

Justice Pritzker has been a jurist since 2005, taking the bench as a multi-court judge for the County, Family, Surrogate, and Drug Treatment Courts in Washington County.  In 2007, he was also designated an Acting Supreme Court Justice presiding over civil actions in Washington County.  In 2013, Justice Pritzker was elected as a Justice of the Supreme Court for the 4th Judicial District.  Prior to his judicial career, Justice Pritzker was in private practice for nearly two decades handling civil, municipal and criminal litigation matters.  He also has extensive experience as a children’s attorney as an advocate in juvenile delinquency, PINS, divorce, custody neglect, and abuse proceedings.  Justice Pritzker began his professional career as a social worker in New York City while attending law school during the evenings.  He graduated from the State University of New York at Buffalo in 1978 with a B.A. in Philosophy and Psychology and earned a Masters degree in Social Work from the same institution in 1980.  He received his law degree from St. John’s University Law School in 1986.

Honorable Philip R. Rumsey

Justice Rumsey was first elected as a Justice of the Supreme Court for the Sixth Judicial District in 1994 and was re-elected to the bench in 2007.  Prior to becoming a jurist, Justice Rumsey practiced law for nearly two decades in both the private and public sectors, beginning as an Assistant District Attorney in Cortland County in 1976.  Other public service roles that he has served include, Assistant County Attorney for Cortland County, Attorney with the Cortland Housing Authority, Staff Counsel for the New York State Senate Standing Committee on Agriculture, Legislative Counsel for New York State Senator James L. Seward, and Town Attorney for the Town of Cortlandville.  He was also a Partner in the law firm of Ryan & Rumsey until taking the bench in 1994.  Justice Rumsey has been a member of the New York Pattern Jury Instructions Committee since 2008, and served in the New York State Army National Guard from 1971 to 1977.  He graduated from Hamilton College in 1971 with a B.A. in Geology and received his J.D. from Syracuse University School of Law in 1975. 


Appellate Division-Fourth Department

Hon. Joanne M. Winslow

Justice Winslow was elected as a Justice of the Supreme Court for the Seventh Judicial District in 2008.  She was assigned to the Matrimonial Part until 2011, before assuming her current assignment in Criminal Part, where she presides over felony indictments from arraignment through sentencing, as well as handling other legal matters.  Prior to her election to the bench, Justice Winslow spent over two decades as an Assistant District Attorney with Monroe County, finishing her tenure at the DA’s office as Bureau Chief for Major Felonies.  Justice Winslow has been recognized for both her professional and civic service activities, receiving accolades for distinguished and dedicated service from Rochester Police Department, Monroe County District Attorney’s Office, Monroe County Sheriff’s Office, and Boy Scouts of America.  This past December, Chief Judge Janet DiFiore named Justice Winslow to serve on the Richard C. Failla LGBTQ Commission.  She graduated from Springfield College in 1981 with a B.S. in Social Studies & Secondary Education, before receiving her J.D. from Albany Law School in 1986.
  

An employee may be subjected to disciplinary action for misusing his or her sick leave accruals


An employee may be subjected to disciplinary action for misusing his or her sick leave accruals
1. Decisions of the Commissioner of Education, Decision 11,111
2. NYC Office of Administrative Trials and Hearings [OATH], OATH Index No. 1468/17

Typically "attendance rules" for public employees permit the employee use his or her sick leave accruals to absent himself or herself from work in the event of personal illness, to care for a family member, including an opposite sex or a same-sex partner or a same-sex spouse, who is ill, for medical appointments, obtaining and training a medical service animal, in connection with pregnancy and other medical situations.

Some jurisdictions permit an employee to absent himself or herself from work without charge to leave credits in the event he or she is subjected to a "medical quarantine" while the availability and use of paid sick leave, sick leave at one-half pay and sick leave without pay by employees in a "collective bargaining unit" pursuant to an employer's "attendance rules" may be subject to provisions set out in a collective bargaining agreement. 

In any event, disciplinary action may be taken being taken against the employee who misuses his or her sick leave benefits.

For example, in Decisions of the Commissioner of Education #11,111, a teacher appealed a disciplinary hearing panel's finding her found guilty of "falsifying records" based on her misusing "family sick leave" benefits and suspending her without pay for nine and one half months.

The panel had found that the teacher had absented herself from work, charging her absence to her sick leave credits for an alleged “family illness” for three days immediately preceding the school district’s spring recess. The teacher, however, chanced to meet her principal at an "out of state" vacation site that they both were visiting on one of the days she had charged to her “family sick leave” leave credits. 

In OATH Index No. 1468/17 OATH Administrative Law Judge John B. Spooner found that a special officer violated his employer's rules when he absented himself from work for seven days using his sick leave accruals in order to remain on the payroll while attending "paid training sessions" being given by a private security company.

Judge Spooner rejected the officer’s claim that he was not working for the private company when he attended its training sessions, explaining that the officer’s signature on a letter accepting a position with the private company and his attending its required pre-employment training program constituted the commencement of an employment relationship with the company.

The judge also sustained charges alleging that the officer disobeyed instructions not to engage in  "outside work" without the prior approval of the Agency.

The ALJ recommended that the officer be terminated from his position with the Agency.

The decision is posted on the Internet at:

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