Summarily terminating a federal officer holding a term appointment from his or her position

NYPPL earlier summarized the decision in PHH Corporation v Consumer Financial Protection Bureau, a decision in which the United States Circuit Court of Appeals,  District of Columbia Circuit  considered the issue of summarily removing a public officer holding a term appointment from his or her position.*

In PHH the Circuit Court concluded that a federal administrator appointed for a fixed term of office may only be removed for cause after notice and hearing. In particular the court ruled that the structure of the Consumer Financial Protection Bureau [CFPB] is constitutional and that its director can be terminated by the President only for cause.

In the words of the majority of the Circuit Court, sitting en banc: "Applying binding Supreme Court precedent, we see no constitutional defect in the statute preventing the President from firing the CFPB Director without cause."

Is the PHH decision relevant with respect to an effort by the President to summarily remove Special Counsel Robert Mueller from his position?

In this reviewer's opinion, PHH probably would not control as the Special Counsel currently so serving has not been appointed for a fixed term of office. 

However, 28 CFR 600.7(d) provides as follows:

"(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General [or under the present circumstances, Deputy Attorney General Rod J. Rosenstein]. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal."

Deputy Attorney General Rosenstein's letter to Mr. Mueller** setting out the terms and conditions of his appointment as Special Counsel states that §§600.4 through 600.10 of the Code of Federal Regulations are applicable to the Special Counsel.

Further, 28 CFR 600.9 Notification and Reports by the Attorney General, in pertinent part, provides:

"(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

"(2) Upon removing any Special Counsel."

Although not specifically so stated in 28 CFR 600.7(d), "due process of law" may require that the removal of a Special Counsel be effected only upon his or her  being found guilty of "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies" after notice and hearing.

*The PPH decision is posted on the Internet at:

https://www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/$file/15-1177.pdf

** The appointment letter is posted on the Internet at:

https://www.documentcloud.org/documents/3726408-Rosenstein-letter-appointing-Mueller-special.html

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

Castro v Safir, 291 A.D.2d 212

An employee may elect to retire from his or her position when charges of incompetency or misconduct have been, or are about to be, filed against the individual.

4 NYCRR 5.3(b), which applies to officers and employees of the State as the employer in the Classified Service and employees of certain other public entities, provides, in pertinent part, that "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local civil service commission and county personnel officers have promulgated a local law, rule or regulation similar to 4 NYCRR 5.3(b).

In certain situations an individual who seeks to retire after he or she is terminated from his or her position as the result of being found guilty of disciplinary charges may find that he or she has forfeited the pension portion of his or her retirement allowance to which he or she may have otherwise been entitled.*

In Castro, the basic issue involved the result of his disciplinary termination from his position prior to the effective date of his retirement. If he had been lawfully so dismissed from the position, any pension benefits to which he would have otherwise been entitled would be forfeited pursuant to §13-173.1 of the New York City Administrative Code.**

Castro sued the Department contending that it had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had earlier found Castro eligible for ordinary disability retirement.***

The Appellate Division ruled that Castro had forfeited his pension benefits as he had been dismissed from his position for cause before he effective date of his retirement on ordinary disability and thus he was not in service on the effective date of his retirement, a ruling  consistent with the Court of Appeals' holding in its Waldeck and Barbaro rulings.

In Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System, the Court of Appeals said that §13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits.

Sometimes a disappointed retiree, as did Castro, alleges his or her termination constituted the employer acting in bad faith.

In Cipolla v Kelly 26 A.D.3d 171, the Appellate Division held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [that the individual’s] termination [from his or her position was made] in bad faith.”

* The decision in Blair v Horn, 2008 NY Slip Op 32581(U), not selected for publication in the Official Reports, suggests that a court could deem a retirement to be the equivalent of a resignation within the meaning of 4 NYCRR 5.3(b) [See  http://www.nycourts.gov/reporter/pdfs/2008/2008_32581.pdf].

** §13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her pension benefits.

*** According to the decision, Castro was terminated from his position after he had applied for ordinary disability retirement but before he was actually retired for disability.

The Castro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_00697.htm

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

OATH Index No. 1767/17

A New York City Division of Housing housing inspector, whose duties included inspecting private and multiple dwellings for safety and "illegal conversions in cellars" was served with disciplinary charges alleging that he had [1] unlawfully converting the cellar of his two-family residence into single rooming units; [2] unlawfully installing kitchen and plumbing fixtures in the cellar space and [3] his failure to advise his employer of his ownership of his residence constituted a conflict of interest.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls found that the inspector had, indeed, unlawfully converted his cellar into rooming units, which he rented to tenants. Further, the ALJ noted that the rooms were unsafe because "they lacked the required means of egress."

Finding that the inspector's conduct showed disregard for the housing and safety standards he was charged with enforcing and was in violation of the public trust, Judge McGeachy-Kuls recommended that the inspector be terminated from his employment with the Division of Housing.

Also noted was a procedural element that the ALJ had to address. The inspector's employer called [the inspector as a witness] and asked him if "he had been arrested for violations at the subject premises." The inspector declined to answer the question invoking his Fifth Amendment right not to provide information that might be incriminating.*

The Division of Housing asked Judge McGeachy-Kuls that she "draw an adverse inference from the [inspector's] refusal to answer questions. The inspector then "stipulated to the admission of the criminal complaint filed against [him] citing violations at the subject premises."

Under the circumstances the ALJ said that she found it "unnecessary to draw an adverse inference."

* At the time of this disciplinary hearing was held criminal charges filed against the inspector were still pending.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1767.pdf

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law

Empire Ctr. for Pub. Policy, Inc. v N.Y.C. Off. of Payroll Admin., 2018 NY Slip Op 01143, Appellate Division, First Department

Supreme Court granted the Empire Center for Public Policy's CPLR Article 78 petition seeking to compel the New York City Office of Payroll Administration [Administration] to disclose certain information it had requested pursuant to the Freedom of Information Law [FOIL]. The court also referred the matter to a special referee to hear and report on the appropriate amount of attorney's fees to be awarded to the Center.

The Appellate Division unanimously reversed Supreme Court's ruling "on the law" without costs and dismissed the Center's Article 78 petition.

The Appellate Division noted that the Center and Administration had corresponded regarding Administration's attempt to comply with the Center's request. Administration indicated it would not be able to compile the date requested until October 2015. On November 5, responding to the Center's inquiry concerning Administration's failure to yet provide all the data it had requested, Administration ask Center for an additional 20 days to provide the requested data.

Acknowledging that in South Shore Press v Havemeyer, 136 AD3d 929, it was held that a failure to provide an approximate date when a petitioner's FOIL request would be granted constituted a constructive denial, the Appellate Division ruled that here the Center's appeal was premature as Administration had not constructively denied the Center's FOIL request in that Administration had provided "most of the information" by November 18."

The Appellate Division, conceding that a custodian of a public record's failure to provide an approximate date when a FOIL request would be granted constituted a constructive denial, found that the Center "did not file an administrative appeal from [the Administration's November 18 response] and thus the Center failed to exhaust its administrative remedies before commencing its Article 78 action.

The decision notes that in Taylor v NYC Police Department, FOIL Unit, 25 AD3d 347, [leave to appeal denied 7 NY3d 714], despite the FOIL Unit's untimely response to Taylor's FOIL request, Taylor improperly institute an Article 78 action "without first taking an administrative appeal" challenging the untimely response to his FOIL request.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01143.htm

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Cooper v City of New York, 2018 NY Slip Op 01240, Appellate Division, First Department

Supreme Court annulled the New York City Department of Education's determination terminating probationary employee John Cooper's from his position. The Appellate Division reversed the lower court's ruling "on the law."

The Appellate Division held that Cooper failed to establish that he was terminated in bad faith in view of the record demonstrating that his performance during his probationary period was unsatisfactory.

On the contrary, said the court, "the record demonstrates that [the New York City Department of Education] had a good faith reason for its determination" in that there were issues with Cooper's leadership, communication, and project management skills, which not resolved despite Cooper's supervisor's repeated advice that he needed to improve and her efforts to assist him.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01240.htm

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday February 23, 2018

Click on text highlighted in color to access the full report.

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