Administrative Law Judge finds the testimony of the employer's witnesses more credible that the testimony of the accused employee

Administrative Law Judge finds the testimony of the employer's witnesses more credible that the testimony of the accused employee

Human Resources Admin. v. Brown, OATH Index No. 161/19

A case worker was charged with confronting a security officer at the facility where they worked, using profanity and physically restraining the security officer.

It was also alleged that when the security officer’s supervisor arrived on the scene and directed the officer to her post, the case worker continued to restrain the officer, pushed the supervisor, and directed profanity at the supervisor.

Following a two-day trial, OATH Administrative Law Judge Astrid B. Gloade found testimony of the security guard and her supervisor more credible than the case worker’s testimony concerning the event and she sustained the charges.

Judge Gloade recommended that the appointing authority impose a penalty of a thirty-day suspension without pay, with credit for time served during a pre-trial suspension by the employee.

Taylor Law amended to clarify an employee organization's duty of fair representation of non-members in a collective bargaining unit  

Section 209-a.2 of the Civil Service Law

In Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 138 SCt 2448, the Supreme Court held that "States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."

In response to the Janus decision, §209-a.2 of the Civil Service Law was amended and now provides* that it is not a violation of an employee organization's duty of fair representation if the employee organization limits its services to and representation of non-members in accordance with this subdivision or declines to provide representation to a non-member in the relevant negotiating unit:

[1] during questioning by the employer;

[2] in statutory or administrative proceedings;

[3] to enforce statutory or regulatory rights; or

[4] at any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to [i] proceed without the employee organization and [ii] be represented by his or her own advocate.

[5] the employee organization is not prohibited from providing legal, economic or job-related services or benefits beyond those provided in the relevant collective bargaining agreement with a public employer "only to its members."

In addition, §209-a.3 provides that in the event a charge  is filed alleging that the employee organization has breached its duty of fair representation in its processing of, or it failure to process, a claim, the public employer is to be made a party in the action.  

* §4 of Part RRR of Chapter 59 of the Laws of 2018

Other bills signed into law by the Governor:

1. Chapter 271 of the Laws of 2018 amended the §75 of the Civil Service Law to provide that certain  persons  holding  a  position in the Labor Class shall not be removed or otherwise subjected to any disciplinary penalty except  for incompetency or misconduct; and

2. Chapter 403 of the Laws of 2018 directs the President of the New York State Civil Service Commission to study and publish a report evaluating wage disparities among public employers.

A member of school board may be removed from his or her office after three successive unexcused absence from board meetings

A member of school board may be removed from his or her office after three successive unexcused absence from board meetings

Decision of the Commissioner of Education, Decision No. 17,544

Brian Butler appealed the decision of the Board of Education of the Massapequa Union Free School Districtto declare his position on the Board vacant and remove him as a board member to the Commissioner of Education. The Commissioner dismissed Butler's appeal.

The record before the Commissioner indicated that Board's president asked all board members to remain for a discussion following a board’s public and executive sessions to address Butler's alleged "public Facebook posts calling for the dismissal of the School District's Superintendent and his references to her as ‘Kim Jong Un,’” for the purpose of discussing "how we could all work together as a team, despite differences in policy, in a respectful and civil way, without name calling and personal attacks.”

The Commissioner's decision also included two footnotes reporting:

[1] The record indicates that the School District's recent efforts to reorganize the grade configuration of its schools resulted in considerable animus within the community and among individual board members and the superintendent and that a grade configuration matter came before the Commissioner in three separate appeals on which the Commissioner issued decisions, Appeal of Paglia, et al., 57 Ed Dept Rep, Decision No. 17,251; Appeal of Kaufmann, et al., 57 id., Decision No. 17250; and Appeal of Pulizzi, et al., 57 id., Decision No. 17,249.  The record also indicated that Butler made known on social media in profane and incendiary ways his personal feelings regarding the superintendent and others with whom he disagreed on policy matters; and

[2]  The School Board contended that Butler also failed to attend three consecutive meetings on April 4, April 12 and April 17, 2018 without a valid excuse and that Butler, in an affidavit, asserted that he missed the April 4, 2018 meeting because he was in California and advised the board president of that prior to the meeting.  However, in light of Butler's failure to attend five consecutive meetings without a valid excuse in May-June 2018, which alone is sufficient grounds for vacating Butler’s position pursuant to Education Law §2109, the Commissioner said that she did not need not consider whether the Board properly determined that Butler failed to present a valid excuse for missing the three consecutive meetings in April 2018.

The Board's president had sent a letter to Butleroffering him "an opportunity to attend a special meeting of the board on June 28, 2018 at which [Butler] would be asked to provide an explanation for his five most recent consecutive absences.  The letter further stated that if Butlerfailed to provide valid or reasonable excuses for his absences, the board would have “no choice” but to declare his seat vacant.

Butler responded that he would not attend the June 28 meeting because of “a prior business arrangement" but that he would attend a future meeting of board to explain the reason for his absences, "but only if the board president and trustee Baldinger did not attend.  

By letter dated June 29, 2018, the School District's district clerk notified Butler that the Board had declared his seat vacant because of his habitual absences and that, "effective immediately," he was no longer a board trustee.

In his appeal Butlercontended that "he provided [the Board] with a good and valid excuse for his failure to attend board meetings; i.e. fear for his personal safety" and that "the board president did not object to his absences."

In rebuttal, the Board argued that Butler"failed to provide a good and valid excuse to the other trustees for his absence from multiple consecutive board meetings" and thus "the decision to vacate [Butler's] seat on the board was a proper exercise of its authority that should not be disturbed."

Noting that Education Law §2109 provides, in pertinent part, that a board member who “refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefor to the other trustees vacates his office by refusal to serve,” the Commissioner observed that in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner, noting that a board of education makes [1] the determination as to whether a trustee has rendered a valid excuse for missing board meetings and [2] that the excuse tendered is satisfactory to the board, explained the for the Commissioner to overturn the board’s determination, the petitioner must demonstrate that the board was arbitrary and capricious or otherwise abused its discretion in determining that the petitioner had vacated his or her seat.

It is undisputed that Butlerrefused or neglected to attend more than three successive board meetings, and that he was duly notified of such meetings.  It was therefore incumbent on Butler to demonstrate that he provided the other trustees a good and valid excuse for his frequent absences from board meetings.  The Commissioner said that on the record before her, Butlerfailed to meet that burden.

On this record, said the Commissioner, Butler failed to meet his burden of proving that he had a valid excuse for failing to attend the five consecutive board meetings between May 21 and June 21, 2018, nor has Butler demonstrated that the Board's rejection of his proffered excuse - his purported fear of physical harm arising out of a single remark by a fellow trustee made in a heated discussion on March 15, 2018 - was arbitrary and capricious or an abuse of discretion.

Accordingly, ruled the Commissioner, "... based on the record before me, I cannot conclude that [the Board's] decision to declare [Butler's] position on the board vacant pursuant to Education Law §2109 and to remove him as a board member was arbitrary, capricious or an abuse of its discretion."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17544

Employee alleges unlawful retaliation after reporting the unauthorized use of a State computer database by another employee

Employee alleges unlawful retaliation after reporting the unauthorized use of a State computer database by another employee

Gorman v Rensselaer County et al, USCA Second Circuit, No.17-1120-cv

John Gorman alleged that the Rensselaer County defendants in this Civil Rights action brought pursuant to 42 U.S.C. §1983 retaliated against him in violation of his First Amendment rights as the result of his filing a report that a fellow employee in the Rensselaer County Sheriff’s Department had misused the New York State's Division of Criminal Justice Services' [DCJS] "eJusticeNY" program.*

DCJS' eJusticeNY computer program is a digital repository of criminal justice information, including information concerning individuals outside New York State, and is used by law enforcement agencies throughout New York.

The auditor of the eJusticeNY program had been advised that the program had been used by a Rensselaer County correction officer to run an unauthorized background check for allegedly personal reasons. The matter was ultimately referred to the District Attorney.

The correction officer reported by Gorman to have accessed the eJusticeNY for personal reasons was suspended from work, charged with misuse of the eJusticeNY program and subsequently pleaded guilty to “misuse of a computer,” a misdemeanor.

In adjudicating Gorman's civil rights complaint, the Circuit Court found it necessary to address a number of collateral issues, including the following:

1. Protected speech

Under the First Amendment, a public employee who speaks as a citizen on a matter of public concern is protected from the employer’s retaliation. Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013). Whether an employee’s speech constitutes a matter of public concern is a question of law. Id. “Only if the court concludes that the employee did speak in this manner does it move on to the so-called Pickering balancing, at which stage ‘a court . . . balances the interests of the employer in providing effective and efficient public services against the employee’s First Amendment right to free expression.’” Id. (quoting Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999)).

“To constitute speech on a matter of public concern, an employee’s expression must ‘be fairly considered as relating to any matter of political, social, or other concern to the community.’” Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).

But speech that “primarily concerns an issue that is personal in nature and generally related to the speaker’s own situation, such as his or her assignments, promotion, or salary, does not address matters of public concern.” Id. (internal quotation marks and alteration omitted). “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147–48.

Relevant considerations include “whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.” Lewis, 165 F.3d at 163–64.

[See, also, https://publicpersonnellaw.blogspot.com/2015/09/a-public-employees-first-amendment_23.html]

2. Qualified immunity

“Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks omitted).

Clearly established law “do[es] not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Walker v. Schult, 717 F.3d 119, 125–26 (2d Cir. 2013) (quoting Ashcroft v. Kidd, 563 U.S. 731, 741 (2011)). “Although we generally look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right, the absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the law was clearly established so long as preexisting law clearly foreshadows a particular ruling on the issue.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (internal quotation marks and alteration omitted).

[See, also, https://publicpersonnellaw.blogspot.com/search?q=qualified+immunity]

3. Official misconduct

“Exposure of official misconduct, especially within the police department, is generally of great consequence to the public.” Jackler, 658 F.3d at 236 (citation and internal quotation marks omitted). In Jackler, the plaintiff was a probationary police officer who corroborated a civilian complaint of excessive force, and resisted pressure to conceal the misconduct. Id. at 230–31.

Observing that the Fourth Amendment prohibits the use of excessive force by police, and that the misconduct at issue implicated “public safety and welfare” and the “preservation of the public fisc,” we held that “police malfeasance consisting of the use of excessive force is plainly a matter of public concern.” Id. at 236-37.

At the same time, “[n]o authority supports [the] argument that reporting an alleged crime always implicates matters of public concern.” Nagle, 663 F.3d at 107. In Nagle, the plaintiff was a special education teacher who informed several individuals that her signature had been forged on an official report. Id. at 103. The forgery was not a matter of public concern because, “even if such conduct were criminal, [it] had no practical significance to the general public.” Id. at 107. Furthermore, the forgery did not reveal “an ongoing pattern of conduct or even a particularly important instance of bad judgment” that might implicate public concern. Id. at 108.

[See, also, https://publicpersonnellaw.blogspot.com/2010/08/official-misconduct.html]

* The Division of Criminal Justice Services has a variety of responsibilities, including law enforcement training; collection and analysis of statewide crime data; maintenance of criminal history information and fingerprint files; administrative oversight of the state's DNA databank in partnership with the New York State Police; funding and oversight of probation and community correction programs; administration of federal and state criminal justice funds; support of criminal justice-related agencies across the state; and the administration of New York State's Sex Offender Registry.

The Gorman decision containing these observations is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/eaf88018-16bb-4f49-92b0-a7f103978792/2/doc/17-1120_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/eaf88018-16bb-4f49-92b0-a7f103978792/2/hilite/