A public employee alleging that he or she has been "wrongful terminated" is required to bring a CPLR Article 78 proceeding seeking reinstatement and unpaid salary

A public employee alleging that he or she has been "wrongful terminated" is required to bring a CPLR Article 78 proceeding seeking reinstatement and unpaid salary

Village of Northport v Krumholz, 2019 NY Slip Op 00926, Appellate Division, Second Department

The Defendant in this action was appointed Treasurer of the Village of Northport and served in that capacity until the Village discovered that she had been appropriating Village funds to herself.*

The Village commenced this action against Defendant alleging that she had improperly written checks to herself from Village funds. Defendant filed a counterclaim alleged "wrongful termination and violation of Public Officers Law §36"** and asked the court to direct her reinstatement and payment of back salary.

Supreme Court granted the Village's motions summary judgment on its conversion and  its breach of fiduciary duty causes of actions, and dismissed, as time-barred, Defendant's counterclaim. Defendant appealed, contending that Supreme Court should not have granted Village's motion for summary judgment dismissing her counterclaim.

The Appellate Division sustained the Supreme Court's rulings, explaining that:

1. Defendant was required to bring a proceeding pursuant to CPLR Article 78 in order to pursue her claim of wrongful termination and to seek reinstatement and unpaid salary; and

2. Citing Austin v Board of Higher Educ. of City of N.Y. , 5 NY2d 430, a CPLR Article 78 proceeding is the exclusive remedy for a discharged public employee, who must seek reinstatement prior to seeking unpaid salary.

As the Village established its prima facie entitlement to judgment as a matter of law dismissing the Defendant's counterclaim as time-barred, the claim not having not been filed within the controlling four-month statute of limitations, the Appellate Division noted that Defendant "was effectively terminated" in March, 2009 but did not file her counterclaim until January 4, 2013.

* Earlier Defendant had brought an action United States District Court "seeking overtime pay under the Fair Labor Standards Act" and alleged that her employment with the Village should not have been terminated without notice and hearing. The federal court dismissed Defendant's Fair Labor Standards Act claim and declined to consider the state law questions she presented. The filing of her federal action, however, did not toll the running of the controlling statute of limitations with respect to the litigation of Defendant's state law issues. Similarly, neither the filing an appeal from an administrative decision in accordance with a grievance procedure [Matter of Matter of Hazeltine v City of New York, 89 AD3d 613] nor a request for reconsideration of a final administrative decision [Cappellino v Town of Somers, 83 AD3d 934] toll the running of the statute of limitations for bringing an Article 78 action.

** §36 of the Public Officer Law sets out the procedures for the removal of a town, village, improvement district or fire district officer other than a justice of the peace.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00926.htm

Applying compensation limitations retroactively

Applying compensation limitations retroactively

People v Edward J. Murphy, 235 A.D.2d 554

In 1993 certain limitations on the amount of compensation that a BOCES Superintendent could receive were enacted into law [Chapter 295, Laws of 1993].

In the Murphy case the Appellate Division concluded that the limitations set out in Chapter 295 did not apply retroactively.

The case arose when the State attempted to recover a portion of what the Appellate Division described as an "overly generous BOCES compensation package (which included extensive sick and vacation leave time and the right to liquidate this leave at full-pay)" granted to its then BOCES Superintendent Edward J. Murphy,

The Court said that "while improvident, BOCES' offer to Murphy, and his acceptance of the overly generous BOCES compensation package ... did not violate any articulated public policy."

Further, the Court ruled that although the law now places a limitation on the amount of compensation that a BOCES superintendent may receive, "at the time Murphy began working at BOCES and continuing throughout his tenure as the BOCES district superintendent, the law provided for no such restrictions. Accordingly, the Court decided, Murphy's employment agreements with BOCES were neither illegal nor unauthorized.

The ruling suggests that all or part of a "compensation package" in place prior to the effective date of the enactment or the amendment of a law limiting the compensation of a public officer or a public employee then in service may survive judicial challenge even if the compensation package is in excess of that authorized by the law as enacted or amended.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997789235ad2d5541272

An appointing authority may formulate and implement procedures to be used to promote its employees

An appointing authority may formulate and implement procedures to be used to promote its employees

Sinopidis v Port Authority of New York and New Jersey, 2019 NY Slip Op 00830, Appellate Division, First Department

A candidate for promotion from Port Authority of New York and New Jersey Sergeant to Lieutenant  [Petitioner] received a failing grade he received based on his performance at a Qualifications Review Meeting [QRM]. Supreme Court denied his petition seeking a court order directing the Port Authority to effect his  promotion to Lieutenant and to award him back pay and benefits, or, in the alternative, to order the Port Authority "to reconvene [Petitioner's]  interview on a pass-fail basis".  

Petitioner appealed the Supreme Court's ruling. The Appellate Division, however, affirmed the lower court decision, explaining that Petitioner:

1. failed to demonstrate that the Port Authority lacked the discretion to formulate and implement the promotional procedures it had used;

2. failed to show that on its face the procedures were unlawful or arbitrary; and

3. did not demonstrate that the failing grade he received based on his performance at a QRM was arbitrary and capricious.

In the words of the Appellate Division the Port Authority had "broad discretion to select individuals for civil service appointment and promotion."

The Appellate Division said that it would not interfere with Port Authority's  exercise of that discretion "unless there is evidence of arbitrary or unlawful conduct by the appointing officer" and insofar as Petitioner's claim that he was "essentially informed" by his superior officers that he had performed well on the QRM is concerned, this representation "does not raise an issue as to the propriety of the failing grade [Petitioner] actually received."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00830.htm

Statute of limitations for initiating administrative disciplinary action extended where the act or omission charged may constitute a crime

Statute of limitations for initiating administrative disciplinary action extended where the act or omission charged may constitute a crime

Folborg v Bratton, 227 A.D.2d 108

§75.4 of the Civil Service Law provides that disciplinary proceeding must be initiated "within 18 months of the alleged incompetency or misconduct ... provided, however, that such limitations shall 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."

This exception became after a New York City police officer [Police Officer] was dismissed from his position after being found guilty of misconduct based on events that occurred more than 18 months before §75 disciplinary charges had been filed against him.

Essentially, Police Officer was alleged to have engaged in a scheme to defraud by "falsely representing that he would provide ... diamonds from Africa for manufacture and resale in this country...."

The Appellate Division said that because the allegations would, if proved in court, constitute the crime of larceny by false promise, the disciplinary actions was not time-barred under §75.4.

Making another point, the Court said that the fact that the District Attorney decided not to prosecute the police officer "was not tantamount to an assessment that [Police Officer] had not committed a crime." Accordingly, taking administrative disciplinary action against  Police Officer was not improper.

Assume an employee has been tried and acquitted of criminal charges. Courts have allowed the prosecution of administrative disciplinary action against an employee notwithstanding his or her acquittal of criminal charges involving the same acts or omissions.

Why would a court allow the disciplinary hearing to proceed in such a situation? Because the burden of proof is substantially different. An individual may be acquitted in the criminal action because his or her guilt was not proven beyond a reasonable doubt, but he or she may be found guilty under the less stringent substantial evidence standard usually applied in administrative disciplinary proceedings.

Where, however, an individual has been found guilty of criminal charges by a court, the courts have ruled that such a determination precludes a hearing body finding the individual "not guilty" in an administrative disciplinary action involving the same allegations.

In Kelly v Levin, 81 AD2d 1005, the court ruled that acquitting an employee in an administrative disciplinary action based on the same charges underlying the individual's  criminal conviction was a reversible error because the standard of proof in the criminal action was greater. The court said that an Education Law  §3020-a disciplinary hearing panel could not find an individual not guilty of a crime after he or she had been convicted of criminal charges involving the same allegations.

The Police Officer decision is posted on the Internet at:
https://www.leagle.com/decision/1996335227ad2d1081302

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