Refusal to be an "informant" protected by the First Amendment

Refusal to be an  "informant" protected by the First Amendment

Burns v Martuscello, USCA Second Circuit, Docket No. 15-1631

This decision appears to be one of "first impression" concerning "speech and speech-related activity as protected by the First Amendment" by the United States Court of Appeals, Second Circuit, and while the parties involved were, respectively, a prisoner and prison administrators, it may signal that public employees may not suffer retaliation if the individual refuses to "become an informer" or give "false information" when asked to do so by his or her employer.

Mark Burns was placed in restricted custody after he refused (i) to serve as a prison informant, or (ii) to provide false information regarding an incident within the correction facility. 

Burns filed an action with a United States District Court contending that his being placed in restricted custody constituted retaliation in violation of his rights under the First Amendment, the Eighth Amendment and the Fourteenth Amendment. The District Court granted the defendant's motion for summary judgment and Burns appealed.

The Court of Appeals held the First Amendment protects a prisoner's right not to serve as a prison informant or provide false information to prison officials. However, said the court, because it had not previously recognized this speech and speech-related activity as protected by the First Amendment, it affirmed the judgment of the district court on qualified immunity grounds.

This ruling, however, raises a question: Is a public employee's refusal to serve as an informant and, or, his or her refusal to provide false information if asked to do so in the course of his or her employment protected "non-speech" by the First Amendment precluding the individual being served with disciplinary charges because of his or her so refusing to do so or otherwise suffering retaliation?

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/14a47a7f-a2ed-4eec-abb6-a3eb8ea3bf62/2/doc/15-1631_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/14a47a7f-a2ed-4eec-abb6-a3eb8ea3bf62/2/hilite/ 

Addendum: 

In response to an inquiry concerning false testimony given at a disciplinary hearing, NYPPL files indicate that in Alarcon v Board of Education of South Orangetown Central School District, 85 AD3d 780, the Appellate Division directed the reopening of the disciplinary hearing after the recantation of testimony given at the hearing by a witness against Alarcon.

The witness, Ramon Reyes, after testifying, but prior to the issuance of the hearing officer's report and recommendation, recanted his testimony stating that the testimony he had given at the disciplinary hearing was false and that "he gave such false testimony because his supervisor directed him to lie."

The Alarcon decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05055.htm

 

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

OATH Index No. 1355/17

A civil engineer failed to report for a mandatory overtime shift and a medical assessment of her fitness for duty, and refused to submit documentation concerning these matters when directed to do so.

One of the issues considered by the ALJ was the employee claim that she was entitled to be paid for certain absence without pay in excess of the statutory 30-days suspension without pay authorized by Section 75 of the Civil Service Law notwithstanding the fact that she was place on such leave without pay in excess of 30 days when her disciplinary hearing was adjourned at her request because her attorney was not available.

The Civil Service Law provides that an employee may be suspended without pay for a period not exceeding thirty days pending the determination of charges of incompetency or misconduct and the employee may recover back pay for any such suspension exceeding 30 days, provided that the delay is not the employee’s fault. In this instance the appointing authority argued that the employee should not be paid for delays resulting from its agreeing to an adjournment of the hearing at the employee's request.

The appointing authority contended that it did not object to the employee's hearing adjournment request "provided that there was no pay liability" against the employer attributable to the employee's  request for the adjournment. Thus, argued the appointing authority, the employee is not entitled to back pay for any period of suspension without pay attributable the adjournment of the hearing.

Judge Gloade, explained that "This tribunal may recommend restoration of pay for any period of pre-trial suspension that exceeds 30 days," citing Teachers’ Retirement System v. Barrett, , OATH Index No. 1210/99," and, citing Dep’t of Environmental Protection v. D’Amore, OATH Index No. 1307/17, said that an Administrative Law Judge may recommend payment of back pay if employee was placed on an involuntary disability leave prior to a hearing without justification. Further, said the ALJ, "Where an employee is suspended for more than 30 days, he or she may recover back pay for the period of suspension exceeding 30 days, provided that the delay in disposing of the charges is not the employee’s fault.

In contrast, said Judge Gloade, a delay occasioned by an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay. "While the employee's request for adjournment appears to be bona fide, that does not exempt her from the general rule that the party responsible for the delay bears the cost."

Citing Transit Auth. v. Danese, OATH Index No. 1043/95, ALJ Gloade concluded that it was unclear from the record whether the employee was entitled to back pay and declined to undertake an accounting to determine how much, if any, back pay the employee would be entitled to receive "as it was beyond the purview of the tribunal."

The appointing authority adopted the findings, and the penalty recommended, by the ALJ.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1355.pdf

Applying of the "Continuing Wrong Doctrine"

Applying of the "Continuing Wrong Doctrine"

Decisions of the Commissioner of Education, Decision No. 17,380

The Commissioner denied a petition seeking the removal of a member of the Board of Education of the Brentwood Union Free School District, citing a number of procedural defects with respect to the Petitioner's submitting the appeal.

Among the issues addressed by the Commissioner was Petitioner's argument that the petition was timely under the "continuing wrong doctrine."

The Commissioner disagreed, explaining that the continuing wrong doctrine applies when the ongoing action is itself an unlawful action that results in a continuous violation of the law, such as:

a. The unlawful employment of an unqualified individual, [Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919];

b. The unlawful appointments to a district’s shared decision-making team, [Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155];

c. An improperly constituted professional development team, [Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381]; and

d. Ongoing expenditures under an austerity budget that did not comply with the law, [Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901]. 

In contrast, the Commissioner observed that the doctrine "does not apply where the specific action being challenged is a single discrete action, inaction or decision and the resulting effects are continuing but are not intrinsically unlawful."

Addressing an administrative matter, the Commissioner granted the school board member's request for "a certificate of good faith pursuant to Education Law §3811(1) "solely for the purpose of authorizing the board to indemnify her for legal fees and expenses incurred in defending a proceeding arising out of the exercise of her powers or performance of duties as a board member."

The Commissioner explained that it is appropriate to issue such certification unless it is established on the record that the requesting board member or trustee acted in bad faith. In this instance, said the Commissioner, "because the application has been denied on procedural grounds, I hereby certify for the purpose of Education Law §3811(1) that respondent is entitled to receive the requested certificate."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17380

Appointment of a Special Prosecutor and Special Deputy Attorney General following the resignation of former New York State Attorney General Eric Schneiderman

Appointment of a Special Prosecutor and Special Deputy Attorney General following the resignation of former New York State Attorney General Eric Schneiderman

Sources: Office of the New York State Governor; Manhattan District Attorney 


On May 8, 2018 Andrew M. Cuomo sent the following communication to the Acting Attorney General of the State of New York and to the District Attorney of Nassau County:

Honorable Barbara D. Underwood
Acting Attorney General of the State of New York
State Capitol
Albany, New York 12224

Madeline Singas
District Attorney of Nassau County
262 Old Country Road
Mineola, NY 11501

Acting Attorney General Underwood and District Attorney Singas:  

The integrity of our justice system is of paramount importance. News of former Attorney General Eric Schneiderman's alleged improprieties as the State's chief legal officer are grossly disturbing and must be fully investigated. The brave women who chose to come forward deserve swift and definitive justice in this matter.  

Accordingly, pursuant to Executive Law §63(2), I hereby require that the Nassau District Attorney Madeline Singas be designated Special Prosecutor and Special Deputy Attorney General (hereinafter "Special Prosecutor") to investigate, and if warranted, prosecute, any and all matters concerning the public allegations against Mr. Schneiderman, as reflected in the New Yorker article dated May 7, 2018 titled "Four Women Accuse New York's Attorney General of Physical Abuse," as well as any matters that may arise from this investigation. Ms. Singas is the former head of the Special Victims' Bureau at the Nassau County District Attorney's Office and the founding member of the Domestic Violence Bureau at the Queens County District Attorney's Office, so she has specific and extensive expertise in this area.

In addition to investigating the specific allegations outlined against Schneiderman in the article, the Special Prosecutor shall investigate facts in the article suggesting that the Attorney General staff and office resources may have been used to facilitate alleged abusive liaisons referenced in the article.

The Special Prosecutor shall have the powers and duties specified in subdivision 2 of section 63 of the Executive Law for purposes of this review, and shall possess and exercise all the prosecutorial powers necessary to investigate, and if warranted, prosecute the alleged incidents. The Special Prosecutor shall work with District Attorney Tim Sini of Suffolk County regarding the incident that reportedly occurred in the Hamptons located in Suffolk County. In addition, the Special Prosecutor shall work with any other District Attorneys who have relevant fact patterns. The Special Prosecutor's jurisdiction will displace and supersede the jurisdiction of the New York County District Attorney's Office ("DANY"), as there appears, at a minimum, an appearance of a conflict of interest with the Attorney General's Office, which is currently investigating the relationship and actions between DANY and the New York Police Department and their handling of alleged illegal acts including sexual harassment and assault, by producer Harvey Weinstein. There can be no suggestion of any possibility of the reality or appearance of any conflict or anything less than a full, complete and unbiased investigation. The victims deserve nothing less.

Accordingly, in relation to the matters at hand, the DANY shall have only the powers and duties designated to it by the Special Prosecutor as specified in subdivision 2 of section 63 of the Executive Law.

Thank you for your immediate attention in this matter and full cooperation. I request that District Attorney Singas address this as a top priority.

Sincerely,  

Andrew M. Cuomo


Commenting of Governor Cuomo's action, District Attorney Vance said " "No prosecutors are better equipped to investigate and pursue such cases in Manhattan than those in my office," adding, "the only conflict here is one of your creation." 

In his letter dated May 8, 2018  to the Governor, District Attorney Cyrus  R. Vance, Jr., wrote: 

May 8, 2018  

The Honorable Andrew M. Cuomo Governor of the State of New York   
The Capitol  
Albany, New York 12224 

"RE: Letter to Acting Attorney General Barbara D. Underwood and Nassau County District Attorney Madeline Singas 

Dear Governor  Cuomo:  

"I am writing in response to the announcement you made this evening that you have directed the Acting Attorney General and Nassau County District Attorney Madeline Singas to investigate the recent allegations of assault and other crimes by former New York  Attorney General Eric Schneiderman. While I have absolute confidence that DA Singas can conduct a thorough and effective review (and putting aside the legality of the way you have framed this directive), I strongly object to this move, for a number of important reasons. In your order this evening and in your public comments earlier today, you pointed to a potential conflict (or the appearance thereof) between my office and the office of the  Attorney General. You state that the victims of sexual abuse and violence deserve no less than a conflict-free investigation. I agree. However, the only potential conflict here is one of your creation: your recent directive that the AG’s office review, among other things, a 2015 investigation of Harvey  Weinstein by my office and the NYPD. As I made clear to your office at the time, this review is an unwarranted intrusion by an elected executive into a charging decision by an independent prosecutor. The action, occurring on the very day your primary opponent announced her campaign for Governor, was viewed by some as politically motivated. I have no idea whether or not that is true. But more important, and beyond politics, it violated the separation of powers that is intended to promote confidence in the independence of our criminal justice system.  The fact that this earlier directive has now caused you to intrude further into the criminal process by “re-assigning” the Schneiderman matter away from my office to a different elected prosecutor — however skilled — only compounds the mistake of that earlier action. First, the new allegations about Mr. Schneiderman have nothing to do with my office’s investigation of Mr. Weinstein: they involve entirely separate claims of assault, involving entirely separate parties, and the alleged acts are plainly within the jurisdiction of my office. Put simply, no prosecutors are better equipped to investigate and pursue such cases in Manhattan than those in my office; we do so, in partnership with the NYPD, every single day. Second, the purported conflict no longer exists. If the concern is that our investigation of Mr. Schneiderman might be compromised by the fact that his former office is reviewing the conduct of my office in the unrelated Weinstein matter, any such conflict  was eliminated as a practical matter when Mr. Schneiderman himself resigned as AG. At that point he became a private citizen like any other we investigate, and he is no longer in a position to influence the actions of his former office, including the outcome of its review.  And since the acting Attorney General will also appoint a special investigative attorney outside the Attorney General’s Office to conduct that review, there is no conflict regarding investigation into possibly relevant conduct of employees of that agency. I pointed this out to you on the telephone last night, and you agreed at that time that Mr. Schneiderman’s resignation would obviate any conflict for our office. 

"Most importantly, charging and jurisdictional decision making should be left to independent prosecutors who are answerable to their local constituents. Interference with law enforcement investigations by an elected chief executive should always be viewed with great care, especially these days, given the propensity of our elected executive at the federal level in Washington to make statements and take actions that jeopardize the independence of our criminal justice system. Please be assured that none of these issues will ever compromise this Office’s commitment to pursuing justice for survivors of sexual and intimate partner violence" 

"Sincerely, 

"Cyrus R. Vance, Jr" 


On May 9, 2018 Counsel to the Governor Alphonso David sent the following letter to Manhattan District Attorney Cy Vance in response to a letter sent to Governor Cuomo by Mr. Vance: 

Honorable Cyrus Vance, Jr.
Manhattan District Attorney
One Hogan Place
New York, New York 10013

Dear District Attorney Cyrus Vance:

I am writing in response to the letter you sent last night to Governor Cuomo regarding his appointment of Nassau County District Attorney Madeline Singas as Special Prosecutor.  Your blatant misstatement of facts in that letter must be corrected.

The Special Prosecutor appointed by the Governor will investigate Eric Schneiderman AND the Attorney General's office for any facilitation of the alleged conduct reported in the New Yorker article.  The investigation is not limited to, as you would suggest, simply investigating Mr. Schneiderman as a private citizen.

The order clearly states:

In addition to investigating the specific allegations outlined in the article, the Special Prosecutor shall investigate facts in the article suggesting that the Attorney General staff and office resources may have been used to facilitate alleged abusive liaisons referenced in the article.

To be clear, the office of the Attorney General is the same office currently investigating you for alleged failures in the handling of victims' cases in the Harvey Weinstein matter. It is frankly absurd to think that you can investigate an office that is simultaneously investigating your own conduct. I would refer you -- although as a law enforcement official I expect you are already aware -- to the well accepted legal and ethical standards compelling law enforcement officials to avoid even an appearance of impropriety or conflict of interest.

Moreover, credible women's organizations have come forward with concerns about your handling of sexual abuse or harassment cases.  Indeed, it was their complaints that compelled the Governor's appointment of the Attorney General to investigate you in the first place.

The Time's Up group, a global women's network, wrote a letter to the Governor stating;

TIME'S UP, a global organization dedicated to ending workplace sexual harassment and abuse, calls on the Governor of New York, Andrew Cuomo, to launch an independent investigation of the New York District Attorney, Cyrus Vance, and the office of the District Attorney to determine the facts related to the decision not to prosecute Harvey Weinstein for sexual abuse crimes against one of his accusers, Ambra Battilana.

Reports that District Attorney Cyrus Vance could have been improperly influenced by Mr. Weinstein and/or his representatives, and that senior officials within the DA's office may have sought to intimidate Battilana are particularly disturbing and merit investigation. Similarly, reports that the New York Police Department chose to isolate Battilana from Vance's staff because they feared his office was actively working to discredit her story demand immediate scrutiny.

An independent investigation into the full decision-making process in this case, including a full review of the correspondence within the office and with any representatives for Mr. Weinstein, must be undertaken immediately to ensure that prosecutorial integrity was maintained and to restore faith in the DA's office.

We are concerned that what appears to be the negative relationship between the sex crimes unit of the Manhattan District Attorney's Office and the Special Victims Unit of the NYPD makes it even less likely that victims who have been assaulted by rich or powerful men will be willing to come forward and that their assailants will be prosecuted and convicted.

Greater awareness of sexual abuse crimes is essential, but it is hollow and can even be a deterrent if survivors cannot access justice through fair and unbiased prosecution. 

Given the multitude of credible reports of Mr. Weinstein's behaviors after the DA's decision not to prosecute in this case, arguably his continued victimization of others could have been avoided. 

There will only be real consequences for abusive behavior when our public officials, sworn to uphold the law, care as much about the rights of the victim as concerns for the accused.

As a law enforcement official, you know it is not your personal beliefs that determine a conflict; rather, that must be determined by an objective review of the totality of the circumstances, including the interests of victims and their representatives. It is paramount that not only women, but all New Yorkers, believe this matter is being handled fairly, and they have made it clear that you do not instill that confidence in them.  The original letter calling for you to be investigated made that clear, and the statement that they issued today reinforces that point.

We reiterate our request for an investigation into the relationship between the Manhattan DA and NYPD with respect to the investigation of sex crimes. We have already reached out to Acting Attorney General Underwood to ensure that the process begins ASAP. We believe that all investigations into any of these matters must be independent for the process to have the integrity it deserves.

Your original actions and omissions in the Harvey Weinstein matter caused the distrust of women's organizations.  That distrust is your creation, not ours.  The calls for your disqualification by women's organizations and other stakeholders have continued.  Allowing a blatant conflict of interest to taint the investigation would only make the situation worse and we cannot be a party to it.  Madeline Singas has the extensive qualifications necessary to conduct this investigation and is free of conflicts of interests.  Women have been victimized by the system for years and it must stop.

Sincerely,

Alphonso B. David

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

OATH Index No. 1355/17

A civil engineer failed to report for a mandatory overtime shift and a medical assessment of her fitness for duty, and refused to submit documentation concerning these matters when directed to do so.

One of the issues considered by the ALJ was the employee claim that she was entitled to be paid for certain absence without pay in excess of the statutory 30-days suspension without pay authorized by Section 75 of the Civil Service Law notwithstanding the fact that she was place on such leave without pay in excess of 30 days when her disciplinary hearing was adjourned at her request because her attorney was not available.

The Civil Service Law provides that an employee may be suspended without pay for a period not exceeding thirty days pending the determination of charges of incompetency or misconduct and the employee may recover back pay for any such suspension exceeding 30 days, provided that the delay is not the employee’s fault. In this instance the appointing authority argued that the employee should not be paid for delays resulting from its agreeing to an adjournment of the hearing at the employee's request.

The appointing authority contended that it did not object to the employee's hearing adjournment request "provided that there was no pay liability" against the employer attributable to the employee's  request for the adjournment. Thus, argued the appointing authority, the employee is not entitled to back pay for any period of suspension without pay attributable the adjournment of the hearing.

Judge Gloade, explained that "This tribunal may recommend restoration of pay for any period of pre-trial suspension that exceeds 30 days," citing Teachers’ Retirement System v. Barrett, , OATH Index No. 1210/99," and, citing Dep’t of Environmental Protection v. D’Amore, OATH Index No. 1307/17, said that an Administrative Law Judge may recommend payment of back pay if employee was placed on an involuntary disability leave prior to a hearing without justification. Further, said the ALJ, "Where an employee is suspended for more than 30 days, he or she may recover back pay for the period of suspension exceeding 30 days, provided that the delay in disposing of the charges is not the employee’s fault.

In contrast, said Judge Gloade, a delay occasioned by an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay. "While the employee's request for adjournment appears to be bona fide, that does not exempt her from the general rule that the party responsible for the delay bears the cost."

Citing Transit Auth. v. Danese, OATH Index No. 1043/95, ALJ Gloade concluded that it was unclear from the record whether the employee was entitled to back pay and declined to undertake an accounting to determine how much, if any, back pay the employee would be entitled to receive "as it was beyond the purview of the tribunal."

The appointing authority adopted the findings, and the penalty recommended, by the ALJ.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1355.pdf

Employer's payment of employer contributions towards an employee's health insurance premiums discontinued during the employee's disciplinary suspension without pay

Employer's payment of employer contributions towards an employee's health insurance premiums discontinued during the employee's disciplinary suspension without pay

Board of Educ. of the Dundee Cent. School Dist. v Coleman, 29 Misc 3d 1204(A)

May an arbitrator require the appointing authority to continue its employer contributions for health insurance premiums during the employees disciplinary suspension without pay? This was one of the issues considered by Supreme Court in Board of Education of the Dundee Central School District v Coleman

Dundee had served Douglas Coleman, a tenured social studies teacher with disciplinary charges pursuant to Education Law §3020-a. Ultimately the Hearing Officer, finding Coleman guilty of some of the charges and dismissing others, suspended Coleman from "from all teaching duties without pay" but directed Dundee to continue paying employer contributions for Coleman's health insurance premiums during the period of his suspension without pay.

Typically an employee participating in an employer's health insurance plan who is removed from the payroll for a period of absence "without pay" is required to pay both the employer's and the employee's contribution for the required health insurance premiums.

Dundee filed a "hybrid application" pursuant to Articles 75 and 78 of the CPLR, seeking a partial vacation of the penalty imposed by the Hearing Officer with respect to, among other things, it continuing to pay its "employer contributions" towards Coleman's premiums for his health insurance during the period of his suspension without pay contending Education Law §3020-a(4)(a) necessarily involves "a suspension of all payments by Dundee for Coleman's benefit."*

In rebuttal, Coleman argued that §3020-a(4)(a) permits a penalty of suspension without pay to include of the suspension of the payment of an employer's contributions for "fringe benefits."

Supreme Court rejected Coleman's theory, stating that "The statutory scheme clearly contemplates suspension of all financial benefits upon a suspension without pay," citing the decision of the Commissioner of Education in the Appeal of the Board of Education of the Carthage Central School District re: Rosintoski, 33 Educ. Dept Rep. 693 [citing Adrian v. Board of Education of the East Ramapo Central School District, 60 AD2d 840].

The court then directed Coleman to reimburse Dundee "for any such costs already advanced on Coleman's behalf" and, in addition, ruled that "Dundee is immediately stayed from making any further contributions during the suspension period."

* Education Law §3020-a(4)(a), in pertinent part, provides "In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2010/2010_51684.htm