Criminal prosecutor's claim of absolute immunity depends on the nature of the function he or she performed

Whether a prosecutor is entitled to absolute immunity for specific actions “depends principally on the nature of the function performed.” In this action the United  States Court of Appeals, Second Circuit, held that "[a]s the presentation of inculpatory evidence showing probable cause to the grand jury is an essential prosecutorial function, necessary to obtain an indictment, doing so is protected by absolute immunity", explaining that it is “intimately associated with the judicial phase of the criminal process."

With respect to the prosecutor giving "reassurance" to an infant witness, providing such reassurance is a protected act of “advocacy” in the course of presenting the prosecutor's  evidence to the grand jury.

For the purpose of determining whether this prosecutor is entitled to absolute immunity for placing the most crucial inculpatory evidence before the grand jury, and where the accused admits that the purpose of taping the infant's testimony was to present it to a grand jury, there is no functional difference between creating a recording of the infant’s testimony for presentation to the grand jury pursuant to New York's Criminal Procedure Law §190.32 and directly questioning the infant before the grand jury as both are the creation of the essential grand jury record.

The prosecutor, therefore, was entitled to absolute immunity with respect to the prosecutor's recording the infant’s testimony, including the prosecutor's "misguided effort to reassure the [infant]." 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e7e13757-e9ea-4137-adec-6b9de5a93de9/1/doc/18-1377_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e7e13757-e9ea-4137-adec-6b9de5a93de9/1/hilite/

Rights to free speech and, or, academic freedom not offended by requiring a candidate for a teaching position to demonstration his or her teaching skills

The petitioner [Plaintiff] in this action appealed the federal district court's dismissal of his claims that members of a hiring committee at a State University of New York campus discriminated against him based on his age and disability and violated his First Amendment rights to free speech and academic freedom to the United States Circuit Court of Appeals, Second Circuit. Plaintiff also challenged the constitutionality of 28 U.S.C. §1915, certain procedural rules established by the District Court Judge and alleged that the magistrate judge was biased against him and should have been recused.*

Assuming, but not deciding that Plaintiff's age and disability discrimination claims are cognizable under §1983, the Circuit Court said it must first determine if the facts alleged in Plaintiff's complaint “plausibly support” the following elements:

[a] Plaintiff is a member of a protected class;

[b] Plaintiff was qualified;

[c] Plaintiff suffered an adverse employment action; and

[d] Plaintiff demonstrated at least minimal support for the proposition that the employer was motivated by discriminatory intent.

The Circuit Court held that Plaintiff's complaint did not meet this minimal standard.

Although Plaintiff alleges that the other candidates that were offered the teaching positions for which he applied were younger and less-qualified than he, the court said that these conclusory allegations do not plausibly support a discrimination claim because Plaintiff [1] "has not pled the qualifications for the position, [2] whether his qualifications met those requirements, or [3] whether the other candidates’ qualifications met those requirements."

With respect to Plaintiff's allegation that the hiring committee gave him negative evaluations for his teaching demonstration in order to cover up its discriminatory animus, the Circuit Court said that such "negative evaluations that SUNY gave [Plaintiff] ... conveyed legitimate concerns that [Plaintiff's] teaching philosophy conflicted with the university’s curriculum and needs and equally legitimate concerns about [Plaintiff's] practical skills as a teacher." Further, said the court, Plaintiff's allegation that an elderly SUNY professor had created administrative difficulties by taking medical leave does not support an inference that these legitimate reasons for not offering Plaintiff the position were pretext for discrimination.

The court opined that (a) Plaintiff's claims did not plausibly support an inference that SUNY is liable for age discrimination and (b) his allegation that SUNY violated his First Amendment guarantees of free speech and academic freedom by requiring him to give a teaching demonstrations also failed. 

Recognizing that the First Amendment protects academic freedom, the Circuit Court explained that "a university may nonetheless place parameters on scholarship when the parameters protect the university’s legitimate interest in ensuring that teaching candidates can communicate ideas effectively," citing Hazelwood School District v. Kuhlmeier, 484 U.S. 260, in which the Supreme Court noted that "schools may exercise some control over speech in schools if the school’s actions are 'reasonably related to legitimate pedagogical concerns.'”

Holding that SUNY did not violate Plaintiff's First Amendment rights to free speech or academic freedom by requiring him to perform a teaching demonstration as a candidate for a teaching position, the Circuit Court concluded that Plaintiff "has not satisfactorily pled" that any SUNY employees discriminated against him or violated his First Amendment rights and affirmed the district court's order dismissing his complaint.

* With respect to challenges to the district court’s procedure, the Circuit Court ruled that Plaintiff did not have standing to challenge either §1915’s constitutionality or the district judge’s individual practices because he had not suffered an injury because of the district court’s review of his complaint pursuant to §1915 or as the result of the district court’s pre-motion letter requirement. As to Plaintiff's motion to remove the magistrate judge, the motion was deemed moot and "otherwise fails on the merits because Plaintiff’s allegation that the magistrate was biased was impermissibly premised solely on adverse rulings."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/fdcb5653-346c-48a4-9ff3-dc1908da6166/3/doc/18-1540_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdcb5653-346c-48a4-9ff3-dc1908da6166/3/hilite/

Supplemental Military Leave: benefits for officers and employees of the State of New York as the employer

NO HEARING SCHEDULED

This proposed amendment to the Attendance Rules for Employees in New York State Departments and Institutions is a consensus rule making amending 4 NYCRR 21.15 and 4 NYCRR 28-1.17 to extend the availability of supplemental military leave benefits for certain employees of New York State as the employer until December 31, 2019.

This proposed rule amends 4 NYVRR 21.15 and 4 NYCRR 28-1.17 to continue the availability of the single grant of supplemental military leave with pay and further leave at reduced pay through December 31, 2019, and to provide for separate grants of the greater of 22 working days or 30 calendar days of training leave at reduced pay during calendar year 2019.

Union represented employees already receive these benefits pursuant to memoranda of understanding (MOUs) negotiated with the Governor’s Office of Employee Relations (GOER). The proposed rule amends 4 NYCRR 21.15 of the Attendance Rules consistent with the current MOUs, and amends 4 NYCRR 28-1.17 to extend equivalent benefits to employees serving in positions designated managerial or confidential within the meaning of Article 14 of the Civil Service Law.

Currently §242 of the New York State Military Law provides that public officers and employees who are members of the organized militia or any reserve force or reserve component of the armed forces of the United States may receive the greater of 22 working days or 30 calendar days of leave with pay to perform ordered military duty in the service of New York State or the United States during each calendar year or any continuous period of absence. Following the events of September 11, 2001, certain State employees have been ordered to extended active military duty, or frequent periods of intermittent active military duty. These employees faced the loss of State salary, with attendant loss of benefits for their dependents, upon exhaustion of the annual grant of Military Law paid leave.

Accordingly, supplemental military leave, leave at reduced pay and training leave at reduced pay were made available to such employees pursuant to MOUs negotiated with the employee unions. Corresponding amendments to the Attendance Rules were adopted extending equivalent military leave benefits to employees in positions designated managerial or confidential within the meaning of Article 14 of the Civil Service Law.

The text of the proposed rule and any required statements and analyses may be obtained from: Jennifer Paul, Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov