Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"

Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"

Lilley v Greene Cent. Sch. Dist., 2019 NY Slip Op 00019, Appellate Division, Third Department

Jordon Lilley reported to Gordon Daniels, the interim superintendent of the Greene Central School District[School District], that an employee under Lilley's supervision had allegedly engaged in misconduct by texting while driving and punching in time cards of other employees who had not yet arrived at work, including the employee's daughter.

Lilley alleges that Daniels told him that "despite a recommendation from the school district's counsel to terminate [the employee]," no action would be taken against the employee. Lilley subsequently reported the employee's alleged misconduct to the State Police and appeared before the school district's Board of Education to report the same alleged employee misconduct.

According to Lilley, the day after appearing before the School Board he was placed on administrative leave and was served with charges alleging "incompetence and/or misconduct" pursuant to Civil Service Law §75. The notice of discipline set out five separate charges, including that Lilley's alleged breach General Municipal Law §800 by selling the school district field lime and rock salt from Lilley Farms, which is owned by Lilley and his wife, and that such sales constituted a conflict of interest.

Lilley then commenced this action pursuant to Civil Service Law §75-b, the so-called "Whistle Blower Statute," seeking, among other things, damages and reinstatement to his former position. Supreme Court, among other things, granted the School District's motion to dismiss Lilley's complaint, finding that documentary evidence submitted in support of the School District's motion, which included price quotes and purchase orders/requisitions regarding the sale of field lime and rock salt from Lilley Farms to the School District, warranted dismissal of Lilley's complaint. Lilley appealed.

Citing Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the Appellate Division noted that "Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting improper governmental action." Although a claim pursuant to §75-b cannot be sustained when a public employer has a separate and independent basis for the action taken, "[a] disciplinary action may be retaliatory even where an employee is guilty of the alleged infraction." Further, said the court, a motion to dismiss pursuant to CPLR 3211 (a) (1) "is properly granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

The Appellate Division the held that Supreme Court erred procedurally and substantively in dismissing Lilley's complaint based upon documentary evidence purportedly demonstrating that he had violated General Municipal Law §800, thereby "vitiating [Lilley's] retaliation claim" as the School District's evidence failed to "conclusively establish" that Lilley possessed any of the authority enumerated in General Municipal Law §801 creating a conflict of interest. In fact, said the Appellate Division, Supreme Court's decision is devoid of any reference to the factors enumerated in General Municipal Law §801 and thus Supreme Court improperly granted the School District's motion to dismiss Lilley's petition.

The Appellate Division also found that Supreme Court erred in the substantive application of Civil Service Law §75-b with respect to the School District's contention that an independent basis existed for its placing Lilley on administrative leave.

To assert a whistle blower claim under Civil Service Law §75-b, the individual must allege (1) an adverse personnel action; (2) disclosure of information to a governmental body (a) regarding a violation of a law, rule, or regulation that endangers public health or safety, or (b) which [the individual] reasonably believes to be true and which [he or] she reasonably believes constitutes an improper governmental action; and (3) a causal connection between the disclosure and the adverse personnel action."

The element of causation requires "that 'but for' the protected activity, the adverse personnel action by the public employer would not have occurred." Supreme Court found that the purported General Municipal Law violation sufficed as a separate and independent basis for the adverse action and dismissed Lilley's claim. However, even assuming that the General Municipal Law violation is ultimately demonstrated, the trial court must make "a separate determination regarding the employer's motivation" to ensure against pretextual dismissals and "shield employees from being retaliated against by an employer's selective application of theoretically neutral rules."

The Appellate Division modified the Supreme Court's ruling "on the law" by reversing the court's granting of the School District's motion to dismiss Lilley's amended complaint and remitted the matter to the Supreme Court to permit the School District to serve an answer to Lilley's complaint.

In contrast, the Appellate Division held that Supreme Court properly denied Lilley's cross motion seeking to disqualify Lynch and his law firm as the School District's counsel, explaining that "When considering a motion to disqualify counsel, the court must consider the totality of the circumstances and carefully balance the right of a party to be represented by counsel of his or her choosing against the other party's right to be free from possible prejudice due to the questioned representation." In his affidavit, Lilley states that Lynch is a "critical witness" because he "was likely the attorney who recommended [that the employee] be terminated" and he "followed [Daniels'] directions with respect" to the disciplinary charges [filed] against [Lilley]."

Lilley, said the court, argued that the crime-fraud exception applies to the attorney-client privilege between Lynch and the School District. However the Appellate Division found that "there is no factual basis for finding that Lynch's alleged recommendation and his involvement in the disciplinary charges against Lilley are committed in furtherance of a fraud or crime." As Lynch's testimony will relate solely to the nature of his legal services rendered in the case and the disciplinary action, Lilley failed to demonstrate that he is entitled to disqualification of Lynch and his law firm from representing the Defendants.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00019.htm

Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action

Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action

Randolph v Office of The N.Y. State Comptroller, 2019 NY Slip Op 00167, Appellate Division, Third Department

The petitioner in this action, David L. Randolph, applied for disability retirement benefits. His application was denied by the Comptroller following a hearing. Randolph, acting pro se,* appealed the Comptroller's decision and sent the notice of petition, verified petition and supporting documents by certified mail to Office of the New York State Comptroller, the Office of the Attorney General and the Supreme Court in Albany County.

Randolph, however, failed to "personally deliver these documents to an Assistant Attorney General or to the Attorney General" as required by §307.1 of the Civil Practice Law and Rules.** The Office of the State Comptroller moved to dismiss the proceeding for "lack of personal jurisdiction." Supreme Court granted the motion, and Randolph appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's ruling, explaining "[h]aving failed to obtain an order to show cause authorizing service by mail in lieu of personal service" Randolphused the certified mail method to effectuate service upon the Comptroller." This method, said the court, "requires that the pleadings be sent by certified mail, return receipt requested, to the Comptroller, and that they also be served upon the State of New York by personally delivering them to an Assistant Attorney General or to the Attorney General."

The record indicated that Randolphdid not personally deliver the notice of petition, verified petition, and other documents to an Assistant Attorney General or to the Attorney General. This, said the Appellate Division, is a jurisdictional defect and, in the words of the Appellate Division "Supreme Court properly dismissed the petition, and the merits of the underlying determination are not before us."

* Pro se is a Latin phrase meaning "for oneself" or "on one's own behalf", e.g., acting as one's own attorney.

** §307.2 of the CPLR, addresses "Personal service on a state officer sued solely in an official capacity or state agency" and provides, in pertinent part, "...and by personal service upon the state in the manner provided by subdivision one of this section." §307.1 of the CPLR, Personal service upon the state, provides that such service "shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00167.htm

Proof an individual must submit to a court to recover damages for an alleged breach of contract and an alleged tortious interference with prospective economic advantage

Proof an individual must submit to a court to recover damages for an alleged breach of contract and an alleged tortious interference with prospective economic advantage

Mehrhof v Monroe-Woodbury Cent. Sch. Dist., 2019 NY Slip Op 00110, Appellate Division, Second Department

Edward J. Mehrhof [Superintendent] and the Board of Education of the Monroe-Woodbury Central School District [Board] entered into a three year  "Superintendent's Employment Contract" [Contract]. Paragraph 14 of the Contract provided that the Superintendent could be discharged from employment prior to the expiration its three-year term for "good and just cause" upon a majority vote of the entire Board.

Subsequently the Contract was, from time to time, amended and ultimately provided for its extension  through June 30, 2015 with the caveat that "the Board may meet by January 30, 2015, to consider extending [Superintendent's] employment for an additional year."

In a writing labeled "Statement of Reasons for Termination" dated May 22, 2014, the Board terminated Superintendent's employment pursuant to paragraph 14 of the amended superintendent's contract whereupon Superintendent notified the Board that he was appealing the termination of his employment to an independent hearing officer designated by the Board."

On June 14, 2014 the Board's attorney wrote Superintendent that "regardless of the result of the appeal to a hearing officer, [Superintendent's] contract would not continue beyond June 30, 2015." The Board memorialized its attorney's letter with a formal resolution dated July 8, 2014. Superintendent did not pursue his appeal to a hearing officer.

In September 2015, Superintendent served a notice of claim on the Board and in May 2016 he commenced an action against the Board in Supreme Court seeking to recover damages for the Board's alleged breach of contract and its alleged  "tortious interference with prospective business advantage." The Board move to dismiss the Superintendent's complaint. In support of its motion to dismiss, the Board submitted, among other things, the Superintendent's amended complaint, the contract between the parties, the amended Superintendent's contract and the Board's resolution. The Supreme Court granted the Board's motion to dismiss Superintendent's petition and Superintendent appealed that ruling to the Appellate Division.

The Appellate Division said that in considering a motion to dismiss a complaint the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The court then explained that order to state a cause of action to recover for tortious interference with prospective economic advantage, the plaintiff must allege a specific business relationship with an identified third party with which the defendants interfered, citing a number of court decisions including Burns Jackson Miller Summit & Spitzer v Linder, 88 AD2d 50, 72, affd 59 NY2d 314).

Agreeing with the Supreme Court's finding that Superintendent "did not adequately plead a cause of action to recover for tortious interference with prospective economic advantage," the Appellate Division noted that Superintendent "did not identify any third parties with which he had a current or prospective economic relationship." In addition, and to the extent that Superintendent alleged that the Board interfered with a prospective contract, rather than an existing contract, the Appellate Division again agreed with the Supreme Court's determination that Superintendent "failed to adequately allege that Board engaged in the requisite culpable conduct."**

Finally the Appellate Division sustained Supreme Court's determination that the documents submitted by the Board refuted Superintendent's allegations that [1] he was entitled to recover accrued benefits for the 2014-2015 school year and [2] since Superintendent's employment was not automatically renewed for the 2015-2016 school year, he was not entitled to any damages for salary and benefits for that school year.

* In support of its motion to dismiss Superintendent's petition, the Board submitted, among other papers, Superintendent's contract, the amended contracts between the parties and the Board's relevant resolutions.

** In support of its motion to dismiss Superintendent's complaint, the Appellate Division noted that the Board had submitted  "documentary evidence" within the meaning of CPLR §3211(a)(1) reflecting official out-of-court transactions concerning Superintendent's employment and his termination.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00110.htm

Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority

Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority

Thomas v Town of Southeast, 2019 NY Slip Op 00446, Appellate Division, Second Department

In an employee disciplinary matter conducted pursuant to §75 of the Civil Service Law, judicial review of factual findings made after a hearing is limited to consideration of whether that determination was supported by substantial evidence. Further, in the event there is conflicting evidence, or different inferences that may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the appointing authority and courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists.

Timothy Thomas, an employee of by the Town of Southeast Highway Department was served with disciplinary charges pursuant to §75 alleging that he had committed various acts of misconduct over a period of some 10 months including instances of disobeying the orders of a superior, including one instance in which his failure to follow the directions of the highway department Superintendent allegedly placed the Thomas, a coworker, and the general public in danger; being absent from work for two days without obtaining prior approval for such absence; and threatening and physically confronting the Highway Department Superintendent in the Department's garage.

At the disciplinary hearing Thomas denied the alleged charges of misconduct while a number highway department employees testified to the contrary. In addition, relevant camera surveillance footage, as well as audio recordings, was introduced into evidence by the Town in support of charges it had filed against Thomas and was made part of the record by the hearing officer.

At the conclusion of the hearing, the hearing officer found the Thomas guilty of some, but not all, of the charges filed against him. The hearing officer recommended Thomas be terminated from his employment "given the nature of the incidents, [Thomas'] lack of credibility and lack of remorse, and his previous disciplinary suspension of five days for harassing a co-worker and improper performance of his duties, as well as previous reprimands."

The appointing authority adopted the hearing officer's findings and recommendation and terminated Thomas' employment, whereupon Thomas filed a petition pursuant Article 78 of the CPLR seeking a judicial review of the Town's action.

The Appellate Division dismissed Thomas' appeal, explaining that any credibility issues were resolved by the hearing officer (see Matter of Reed v Raynor, 151 AD3d 730), and substantial evidence in the record supported the determination that the Thomas was guilty of the misconduct alleged in the surviving charges of misconduct.

The Appellate Division noted that a court may set aside an administrative disciplinary penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Walden v Town of Islip, 6 NY3d 735), and although "reasonable minds might disagree over what the proper penalty should have been," such a consideration does not provide a basis for a court to "refashioning the penalty," citing City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917. 

The Appellate Division decided that the penalty imposed on Thomas' by the appointing authority, dismissal from his employment, "is not so disproportionate to the offenses as to be shocking to one's sense of fairness, especially in light of the number of incidents and the petitioner's prior disciplinary record."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00446.htm

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Twenty-six New York State school districts designated as being in "fiscal stress"

New York StateComptroller Thomas P. DiNapoli reports 26 school districts in New York State are in "fiscal stress"

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in color

Twenty-six school districts have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System.* Although the same number of districts were designated in fiscal stress last year, many of the entities in this year’s list have changed. Only 12 were designated as stressed in both 2018 and 2017.

Using financial indicators that include year-end fund balance, cash position, short-term borrowing and patterns of operating deficits, DiNapoli’s monitoring system creates an overall fiscal stress score which drives the classification.

“Despite the ongoing financial pressures facing school districts, our fiscal stress monitoring system has revealed encouraging results in several communities,” said DiNapoli. “However, school boards and superintendents must remain cautious. Today’s budget decisions can have long-lasting implications and can quickly move a district into fiscal stress.”

This year, five school districts are designated in “significant fiscal stress” and the remaining 21 as “susceptible to fiscal stress.” The scores are based on the evaluation of 672 school districts with fiscal years ending on June 30, 2018.

The five school districts that were classified in “significant stress” are Eldred (Sullivan County); New Suffolk (Suffolk); Norwich (Chenango); Schenevus (Otsego) and Wyandanch (Suffolk).

A report released by DiNapoli today in conjunction with the fiscal stress scores showed the regions of Central New York, Long Island and the Southern Tier as those having comparatively high percentages of districts in fiscal stress.

The scores are based on financial information submitted as part of each district’s ST-3 financial report filed with the State Education Department as of Dec. 28, 2018.

* N.B. This announcement does not include scores for the dependent school districts in the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers. Information for these districts will be incorporated into the scoring for their respective cities later this year. The monitoring system does not score New York City.

For a list of school districts designated in fiscal stress, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/schools/pdf/2018/stress-list.pdf

For the complete list of school district fiscal stress scores, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

For a copy of the fiscal stress report, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/common-themes-for-school-year-2017-18.pdf