The statute of limitations set out in Civil Service §75(4) does not control where the charges alleged would, if proved in a court, constitute a crime

The statute of limitations set out in Civil Service §75(4) does not control where the charges alleged would, if proved in a court, constitute a crime

Snowden v Village of Monticello, 2018 NY Slip Op 08226, Appellate Division, Third Department

In July 2016 the Village of Monticello's Building Inspector and Code Enforcement Officer [Petitioner], was served with a notice and statement of disciplinary charges pursuant to §75 of the Civil Service Law. Charge 1 alleged that Petitioner had "committ[ed] acts constituting crimes," related to "the unauthorized demolition of a building in October 2013, and the failure to properly abate the asbestos contained therein."* Petitioner denied the allegations and contended that Charge 1 as untimely, citing Civil Service Law §75(4). 

In September 2016, following a hearing, the §75 Hearing Officer found that Charge 1 was not time-barred and was supported by substantial evidence. The Hearing Officer recommended the appointing authority impose termination of Petitioner from his position as the penalty. Adopting the findings and recommendation of the Hearing Officer, the appointing authority terminated Petitioner's employment with the Village.

Petitioner commenced an CPLR Article 78 proceeding seeking a court order annulling the appointing authority's determination. Supreme Court transferred the matter to the Appellate Division. 

Petitioner's primary contention on appeal was that Charge 1 should have been dismissed as untimely.

The Appellate Division noting that although §75(4) provides that "no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, observed that "this limitations period does not apply 'where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.'"

§75.1 Specification 1 of Charge 1 incorporated the allegations set out in Petitioner's related nine-count criminal indictment stemming from the same underlying conduct and events. Rejecting Petitioner's assertions to the contrary, the Appellate Division said that — by statutory directive — its inquiry was "limited to the allegations contained in the charges and specifications, without consideration of the proof or papers submitted in Petitioner's subsequent judicial proceeding (or at any ensuing disciplinary hearing) challenging the charges as untimely."

The court then explained that in count 8 of the criminal indictment Petitioner was alleged to have "knowingly, unlawfully and intentionally engage[d] persons to effect the unauthorized demolition of the [building], knowing that unabated asbestos was located therein or thereupon, causing the release of a substance hazardous to public health, safety or the environment, said substance being asbestos." If proven, said the court, these allegations would constitute the crime of endangering public health, safety or the environment in the fourth degree (see ECL 71-2711[3]."

Further, said the Appellate Division, count 9 alleges that Petitioner, "with regard to the demolition of the building, ... "engag[ed] persons neither certified nor qualified to abate the asbestos located therein, . . . knowing that asbestos was located therein, such demolition having been performed without asbestos abatement or any reasonable procedure to prevent the release of asbestos into the public air, . . . [and] having released a considerable amount of [asbestos] dust and debris into the air" in a populated area." These allegations, said the court, would, if proven at trial, constitute the crime of criminal nuisance in the second degree, citing Penal Law §240.45[1]. 

The Appellate Division further found that "the allegations against [Petitioner] as detailed in counts 5 through 7 would constitute, if established at trial, official misconduct," citing Penal Law §195.00[2].

Thus, said the court, the Hearing Officer properly found that the charge is not time-barred within the meaning of Civil Service Law §75[4].

As to Petitioner's argument that the appointing authority's determination should be annulled as unsupported by substantial evidence, the court said the appointing officer's determination to terminate Petitioner's employment pursuant to Civil Service Law §75 must be sustained if supported by substantial evidence. In conducting its review the Appellate Division, the court cited Matter of Longton v Village of Corinth, 57 AD3d 1273, leave to appeal denied 13 NY3d 709, and said "this Court may not substitute its own judgment for that of [appointing authority], even when evidence exists that could support a different result." Further, in the event there is conflicting evidence, the Appellate Division said it must defer to the Hearing Officer's credibility determinations.

Finding that there was substantial evidence in the record to support finding Petitioner guilty of the charges served upon him pursuant to §75 alleging that he had committed acts of misconduct that constituted crimes," the Appellate Division sustained the appointing authority's decision to impose the penalty of termination of Petitioner's employment.

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

* The Appellate Division had previously issued a decision in the related criminal appeal (See People v Snowden, 160 AD3d 1054). 

The Village of Monticello decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08226.htm

Court denies educator's motion to rescind a settlement agreement resolving a disciplinary action because the educator had a change of mind

Court denies educator's motion to rescind a settlement agreement resolving a disciplinary action because the educator had a change of mind

Nobile v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2018 NY Slip Op 08065, Appellate Division, First Department

Philip Nobile, a former tenured teacher employed by the New York City Department of Education [DOE], sought to rescind a stipulation with DOE settling disciplinary charges brought against him. The stipulation, signed by Nobile, his attorney, and DOE's attorney on October 7, 2016, provided that in exchange for DOE's agreement to discontinue the disciplinary hearing on the pending misconduct charges and to take no further disciplinary action against Nobile while Nobile agreed "to irrevocably retire from his employment with [DOE], effective close of business January 31, 2017."

Annexed to the stipulation was a letter signed by Nobile addressed to the District Superintendent stating, "I hereby irrevocably retire from [DOE], effective close of business January 31, 2017." The stipulation contained a signature line for the Superintendent, who signed it several days later. However before the Superintendent signed the stipulation Nobile notified DOE that he had changed his mind and wanted to rescind the stipulation. When DOE rejected Nobile's efforts to rescind the stipulation, Nobile sued. Supreme Court dismissed Nobile's the complaint and granted DOE's motion to dismiss the complaint, which actions were unanimously affirmed by the Appellate Division.

Although Nobile argued that the stipulation was unenforceable when he changed his mind because not all the parties had signed it, the Appellate Division held that "[t]his argument is unavailing." The court explained that the stipulation signed by Nobile and the attorney acting on behalf of DOE is binding under general contract principles, citing Hallock v State of New York, 64 NY2d 224, as Nobile failed to show that there was fraud, collusion, mistake or accident with respect to the execution of the settlement by Nobile, or that DOE's counsel lacked DOE's consent to enter into the stipulation. Nor, said the Appellate Division, was Nobile's parol evidence, offered to show that the parties did not intend to be bound by the stipulation until the Superintendent had signed it, admissible to add to or vary the terms of the writing.

As Nobile's agreement to retire was irrevocable, and he understood its consequences, his change of mind is not a cause sufficient to set aside his agreement to the stipulation  (see Barclay v Citibank, N.A., 136 AD3d 551, lv to appeal dismissed 27 NY3d 1077).

Nor was Nobile's parol evidence, offered to show that the parties did not intend to be bound by the stipulation until the Superintendent had signed it, admissible to add to or vary the terms of the writing.

A similar result applies with respect to an employee's attempting to withdraw his or her resignation.

Smith v Kunkel, 152 AD2d 893, concerned the issue of an employer’s refusal to permit an employee to withdraw a resignation following its delivery to the appropriate appointing authority.

Smith, a permanent state employee with the State Division of Equalization and Assessment, submitted his resignation for “personal reasons.” The resignation was dated August 21 and was to take effect the following September 3.

On August 29 Smith wrote the Division “seeking to withdraw and rescind” his resignation. Kunkel, the Division’s Administrative Officer, noting that the resignation had been “accepted on August 21,”* refused to approve Smith’s request to withdraw his resignation, citing 4 NYCRR 5.3(c) of the Rules for the Classified Service.**

Further, §5.3 of the Rules provides that if an effective date is specified in the resignation it takes effect on that date; if no date is specified it takes effect “upon delivery or filing in the office of the appointing authority.” 4 NYCRR 5.3 tracks Public Officers Law §31.2 as to the submission of resignations by public officers.

Under the Rules, however, the appointing authority may disregard the resignation in the event disciplinary charges have been filed, or are about to be filed, against the employee and proceed with the disciplinary action notwithstanding the receipt of the resignation.

Finally, the ruling in Silverman v McGuire, 51 NY2d 228, suggests that where the appointing authority makes the final determination with respect to approving the terms and conditions of a stipulation settling a disciplinary action it would be prudent for:

1. The employer’s representative to insist that any settlement of a disciplinary action include a statement to the effect that the settlement is subject to the approval of the appointing authority; and

2. The employee or the employee’s representative to insist on a provision spelling out what is to happen if the appointing officer does not agree to imposed the penalty set out in the settlement proposal.

* Except were otherwise provided by law, all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect [Hazelton v Connelly, 25 NYS2d 74]. At most, all that an appointing authority might do is to “acknowledge the receipt” of the employee’s resignation.

** 4 NYCRR 5.3(c) applies to employees of the State as the employer. Many local civil service commissions and personnel officers have adopted a similar rule.

The Nobile decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08065.htm

Supreme Court of Florida weighs in on judges using social media

New York attorney Nicole Blackhas posted an article on her lawblog Sui Generis captioned Supreme Court of Florida weighs in on judges using social media.

The article is posted on the Internet at: https://nylawblog.typepad.com/suigeneris/2018/11/supreme-court-of-florida-weighs-in-on-judges-using-social-media.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Employee's termination recommended after being found guilty of multiple charges and specifications

Employee's termination recommended after being found guilty of multiple charges and specifications

Dep’t of Transportation v. Mirhosseini, OATH Index No. 916/18

A computer associate employed by the New York City Department of Transportation was charged with multiple act of misconduct.

OATH Administrative Law Judge Ingrid M. Addison found the employee guilty of charges and specifications alleging the employee's:

● Being late and absent without leave on numerous occasions;

● Sleeping and lounging on the job on at least 10 occasions;

● Failing to promptly perform her assigned tasks on two occasions;

● Failing to comply with her supervisor’s directive to attend a training session;

● Being on social media on the job via the use of the office computer;

● Becoming loud and disruptive to her supervisor;

● Using Agency’s e-mail system to send abusive e-mails to recipients mainly comprised of her supervisors and directors;

● Sending false information about her director via e-mail which she copied to another New York City agency; and

● Failing to notify her supervisor, the office of labor relations, and the department of investigations that she had been arrested.

Judge Addison recommended that the Department impose the penalty of termination in view of the multitude acts of misconduct for which the employee had been found guilty.

Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law

Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law

Lance Carlson v. Charter Communications, LLC, USCA, 9th Circuit, No. 17-35917 

N.B. - In handing down this decision the 9th Circuit said "This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3."

§§50-46-320(4)(b) and 50-46-320 (5) of the Montana Marijuana Act [MMA] neither bars employers from prohibiting their employees from using marijuana nor authorizes wrongful termination or discrimination suits against employers.

After Charter Communications fired one of its employees, Lance Carlson, for his legal marijuana use outside of work, in violation of the company's employment policies set out in its employment handbook, Carlson sued Charter alleging wrongful termination and unlawful discrimination.

A Montana District Court dismissed Carlson's complaint and then refused to certify the question of whether these provisions of the MMA were constitutional to the Montana Supreme Court. Carlson appealed the Montana District Court's ruling.

The United States Circuit Court of Appeals, 9th Circuit, affirmed the Montana District Court's ruling explaining that:

 [1] the MMA does not preclude a federal contractor from complying with all the requirements of the Drug-Free Workplace Act (DFWA), 41 U.S.C. §8102; and 

   [2] the MMA does not violate the Montana constitution.*

The Circuit Court observed that MMA is "rationally related to Montana’s legitimate state interest in providing 'careful regulation of access to an otherwise illegal substance for limited use by persons for whom there is little or no other effective alternative' while avoid[ing] entanglement with federal law.” In addition, the Circuit Court, noting that the United States Congress had adopted an appropriations rider currently restricting the Department of Justice from spending funds to prosecute individuals who comply with state marijuana laws, opined that "this temporary rule does not undercut Montana’s legitimate state interests."

In the words of the Circuit Court, "[t]he district court did not abuse its discretion in denying Carlson’s request to certify the question whether sections 50-46-320(4)(b) and (5) are constitutional to the Montana Supreme Court, because it is not an unclear question of state law appropriate for certification."

Lisa M. Schaffer, Esq., in an article posted on the Internet by FindlLaw,** notes that "A state could have a Marijuana Act that specifically prohibits employers from requiring drug-free employees. For instance, in 2018, Maine became the first state to protect workers and their non-workplace marijuana use by forbidding employers from drug testing for marijuana. Specifically, Maine's Act to Legalize Marijuana forbids employers from discriminating against employees based on their legal marijuana use, though it does allow employers to prohibit the use and possession of marijuana 'in the workplace.'" 

* The Carlson decision is posted on the Internet at:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2018/11/19/17-35917.pdf

** See https://blogs.findlaw.com/decided/2018/11/fired-marijuana-user-cant-sue-employer-in-montana.html?DCMP=cons_top:nwl

Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to §75 of the Civil Service Law

Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to Civil Service Law §75 

O'Connor v Cutting, 2018 NY Slip Op 07379, Appellate Division, Third Department

An Essex County deputy sheriff was served four disciplinary charges pursuant to Civil Service Law §75. The appointed Hearing Officer partially sustained two of the four charges and dismissed all the remaining charges. As to the penalty to be imposed, the Hearing Officer recommended that the deputy sheriff be suspended without pay for two months.

The Sheriff then appointed the County Manager to review the §75 Hearing Officer's findings and recommendation and make the final determination. After reviewing the hearing transcripts and exhibits, the City Manager issued a determination that rejected the §75 Hearing Officer's findings, sustained three of the charges and recommended that the deputy sheriff's employment be terminated.

The Sheriff adopted the City Manager's determination and recommended penalty and terminated the deputy sheriff'. The deputy sheriff challenged the Sheriff's decision and sought a court order annulling the City Manager's determination finding her guilty of the disciplinary charges or, in the alternative, an order vacating the penalty of dismissal imposed by the Sheriff. Supreme Court transferred the matter to the Appellate Division, which affirmed the Sheriff's decision.

Citing Matter of Kuznia v Adams, 106 AD3d 1227, the court explained that "The standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole."

Addressing the deputy sheriff's argument that the City Manager had "improperly substituted his own credibility determinations for those of the Hearing Officer," the Appellate Division said that the credibility determinations of a hearing officer are not binding upon the official charged with making a final determination, "who, in the exercise of his or her duty to weigh the evidence and resolve conflicting testimony, may make different factual findings and conclusions, provided they are supported by substantial evidence."

Finding that the City Manager had provided specific reasons for his credibility determinations that were supported by logical inferences drawn from the testimony and the additional evidence that had been adduced at the hearing and that the deputy sheriff was "the least credible witness," the Appellate Division said it found that the City Manager's "factual findings and conclusions" were supported by substantial evidence.

As to the penalty imposed on the deputy sheriff, dismissal from her position, the Appellate Division said that it found that the penalty of termination was "not excessive."

The court said that a penalty imposed by the appointing authority following a §75 disciplinary hearing must the upheld "unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," with due consideration given as to "whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

Finally the Appellate Division observed that it was mindful that great leeway must be accorded in matters concerning police discipline because "a higher standard of fitness and character pertains to police officers than to ordinary civil servants" and, inasmuch as strict discipline is essential for law enforcement administration, "the penalty of dismissal has been routinely upheld for officers who have disobeyed direct orders."

Here, said the court, "we cannot say that dismissing petitioner from her position as a deputy sheriff for disobeying a direct order shocks our sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07379.htm