Court's dismissal of one or more specification set out in a disciplinary charge requires remanding the matter to the appointing authority for reconsideration of the disciplinary penalty imposed on the employee

The appointing authority filed disciplinary charges against a public safety dispatcher [Petitioner] pursuant to Civil Service Law §75. Charge I consisted of six specifications alleging misconduct and, or, incompetence in connection with the Petitioner's handling of a request for assistance on a specified date and Charge II, consisted of five specifications, alleged misconduct and, or, incompetence in connection with the Petitioner's handling of a request for assistance on a different specified date. Petitioner testified that, aside from the two "911" calls forming the bases of Charges I and II, he had never hung up on callers or yelled at callers.

The appointing authority then directed a further investigation into the Petitioner's handling of other 911 calls. As a result in this investigation the appointing authority filed "seven supplemental charges", Supplemental Charges I through and including VII against the Petitioner, each consisting of multiple specifications, arising from the seven additional calls.

Ultimately the designated disciplinary hearing officer found Petitioner guilty of specifications 5 and 6, as well as a portion of specification 4, of charge I; specifications 3, 4, and 5 of charge II; specification 4 of Supplemental Charge II; specification 4 of Supplemental Charge III; specification 4 of Supplemental Charge IV; specifications 4 and 5 of Supplemental Charge V; specification 4 of Supplemental Charge VI; and specification 4, as well as a portion of specification 6, of Supplemental Charge VII. The hearing officer recommended termination of the Petitioner's employment given "the number and extent of his instances of misconduct and/or incompetence" demonstrating that he is "not a reliable or responsible 9-1-1 dispatcher." The appointing authority adopted the hearing officer's findings and recommendation, and terminated the Petitioner's employment.

Petitioner then initiated a CPLR Article 78 action in Supreme Court seeking a judicial review the appointing authority's determination. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR §7804(g).

The Appellate Division commenced its review of Petitioner's appeal by noting that judicial review of an Article 78 proceeding involving employee discipline made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence. The court then explained that "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

Here, said the court, any credibility issues were resolved by the hearing officer and substantial evidence in the record supports the determination that the Petitioner was guilty of the misconduct alleged in certain, but not all, Charges and Specifications, holding that specifications 3 and 4 of Charge II, and  a portion of specification 6 of Supplemental Charge VII cannot be sustained.

As the appointing authority had imposed a penalty of termination of Petitioner's employment in consideration of "all of the specifications for which he was found guilty, and [the Appellate Division had dismissed] three of those specifications," the court, citing Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, vacated the penalty of dismissal imposed on Petitioner and remitted the matter to the appointing authority "to consider the appropriate penalty to be imposed upon the remainder of the charges and specifications for which he was found guilty, and the imposition of that penalty thereafter."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07582.htm

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A Reasonable Disciplinary Penalty Under the Circumstances

Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence.

For more information click on http://booklocker.com/7401.html

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State Joint Commission on Public Ethics sued by individual claiming not to be a lobbyist and thus not subject to the filing requirements applicable to professional lobbyists

§1-c of Article 1-A of the Legislative Law, the Lobbying Act, provides as follows: 

"As used in this article unless the context otherwise requires: (a) The term 'lobbyist' shall mean every person or organization retained, employed or designated by any client to engage in lobbying. The term 'lobbyist' shall not include any officer, director, trustee, employee, counsel or agent of the state, or any municipality or subdivision thereof of New York when discharging their official duties; except those officers, directors, trustees, employees, counsels, or agents of colleges, as defined by section two of the education law."*

An individual [Plaintiff] is suing the New York State Joint Commission on Public Ethics alleging the Commission is conducting an “improper and abusive” investigation into her activities concerning  her efforts to raise awareness about sexual assault and support for the State Legislature's passing the Child Victim’s Act in 2018. Plaintiff claims that she was not involved in lobbying within the meaning of the Lobbying Act and thus is not subject to the filing requirements mandated for professional lobbyists.*

A similar argument was raised by an individual [Petitioner] who was deemed to be a lobbyist under Missouri Law. After a five-year legal battle in federal courts the individual, who claimed he was merely a person spreading his own ideas on limited government and not a paid advocate for others, prevailed.

The full bench of the Circuit Court ruled that Petitioner did not have to register as a lobbyist before speaking to lawmakers, reversing an earlier decision by a three-member panel in a dispute that was reported to have resulted from a complaint against Petitioner filed by the Society of Governmental Consultants.

* See, also, §§1-15 of the Unconsolidated Law.

The text of the Circuit Court's decision is posted on the Internet at:

https://ecf.ca8.uscourts.gov/opndir/19/11/172654P.pdf

A work-related injury resulting from a concealed cause of the individual's fall may constitute an accident within the meaning of Retirement and Social Security Law

A police officer [Petitioner] exited his patrol car and began walking toward the scene of a third accident in the immediate area when he stepped into a pothole that was covered by snow and ice. He lost his balance and fell backwards, seriously injuring himself. Petitioner's application for accidental disability retirement benefits was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.

Following a hearing, this determination was sustained by a Hearing Officer and the State Comptroller adopted the Hearing Officer's finding, whereupon Petitioner commenced a CPLR Article 78 proceeding challenging the Comptroller decision.

The Appellate Division commenced its review of Petitioner's appeal by noting:

1. An applicant for accidental disability retirement benefits bears the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law;

2. The Comptroller's determination in this regard will be upheld if supported by substantial evidence;

3. For purposes of the Retirement and Social Security Law, an accident has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact; and

4. To be deemed accidental, the injury must not have been the result of activities undertaken in the ordinary course of one's job duties but, rather, must be due to a precipitating accidental event which is not a risk of the work performed.

Conceding that at the time of the incident, Petitioner was performing his ordinary job duties of responding to a series of traffic accidents that had occurred during his shift and that falling on a slippery snow- and ice-covered road may be a risk of Petitioner's ordinary job duties, the Appellate Division, in a 4-1 ruling,*  found that falling due to a pothole concealed under the snow and ice is not such a risk, explaining that given the circumstances leading to Petitioner's fall set out in the record, his injury was the result of a "sudden and unexpected event that constitutes an accident as matter of law."

Accordingly the court concluded that the Comptroller's determination was not  supported by substantial evidence and annulled his decision, remitting the matter to the Retirement System "for further proceedings not inconsistent with this Court's decision."

* Judge Clark said that "[the] Court of Appeals has made clear that, to qualify as an accident within the meaning of the Retirement and Social Security Law, there must have been a precipitating accidental event that caused the injury "which was not a risk of the work performed" and, in her view, a fall resulting from stepping  "into a snow- and ice-covered pothole is not a precipitating accidental event "... [a]lthough stepping into the pothole may have been sudden, it was not, on this record, a hazard so out of the ordinary or unexpected under the circumstances so as to qualify as an accident [as Petitioner] ... was equipped with ice cleats to help him traverse the unplowed and unsalted roadway and that, having had ample opportunity to observe and traverse the snow-covered road" while responding to two car accidents at the same location immediately prior to his fall "he was aware of the possibility that road hazards could be concealed."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07828.htm

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Disability Benefits for fire, police and other public sector personnel

This e-book addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

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The distinction between the internal operations and conduct affecting external relations of an Interstate Compact Commission is critical in determining areas permitting unilateral State action and those requiring bilateral State action

The Port Authority of New York and New Jersey [Port Authority] is an interstate compact agency and thus is not subject to New York legislation governing with respect to its internal operations' unless and until both New York and New Jersey having enacted legislation providing that such legislation is applicable to the Port Authority.

Plaintiff sued the Port Authority and Skanska USA Inc., and Skanska USA Building Inc.*alleging that he sustained injuries as a result of defendants' negligence and failure to comply with Labor Law §§ 200, 240, 241, and 241-a; 29 CFR Part 1910 and Part 1926; and a number of New York Department of Labor Regulations.

Plaintiff alleged that on July 18, 2016, while working at a construction site at One World Trade Center, New York, New York. Supreme Court's rejected the Port Authority's motion to dismiss the Petitioner's CPLR Article 78 action alleging violations of New York State's Labor Law §§240(1), 241(6) and §241-a and the Port Authority appealed. The Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division, conceding the status of the Port Authority as an interstate compact agency, explained that in Agesen v Catherwood, 26 NY2d 521, the Court of Appeals held that the Port Authority is still "subject to New York's laws involving health and safety, insofar as its activities may externally affect the public." The court noted that contrary to the Port Authority's interpretation of Malverty v Waterfront Commn. of N.Y. Harbor, 71 NY2d 977,** the Court of Appeals "did not in overrule its holding in Agesen in deciding Malverty."

In Malverty the Court of Appeals concluded that in "the absence from the text and legislative history of [Article 23 of the New York State's Correction Law] of any reference to the Waterfront Commission, coupled with the absence of an express statement that the Legislature was amending or supplementing the provisions of the "Compact" and that article 23-A would take effect upon the enactment by New Jersey of legislation of identical effect, if it had not already done so, indicates that the New York Legislature never intended article 23-A to apply to the Waterfront Commission. 

The Agesen court held that that "in the instant matter ... there is no showing of any sort that section 220 of the Labor Law was ever intended to apply to the Authority, or any justification, by way of practical construction or otherwise, for the unilateral imposition of such regulation on its internal operations." The court, however, then opined that "[t]he distinction between the internal operations and conduct affecting external relations of the Authority is crucial in charting the areas permitting unilateral and [those] requiring bilateral State action. New York and New Jersey have each undoubted power to regulate the external conduct of the Authority, and it may hardly be gainsaid that the Authority, albeit bistate, is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public (see 1949 Opinions of the Attorney General, 118-121)."

In addition, the Appellate Division pointed out that courts have repeatedly held that the Port Authority is subject to New York Labor Law with respect to its external conduct, citing  O'Brien v Port Auth. of N.Y. & N.J., 29 NY3d 27; Nolan v Port Auth. of N.Y. & N.J., 162 AD3d 488; Jerez v Tishman Constr. Corp. of N.Y., 118 AD3d 617; Verdon v Port Auth. of N.Y. & N.J., 111 AD3d 580; and Sferrazza v Port Auth. of N.Y. & N.J., 8 AD3d 53.

* 2018 NY Slip Op 31104 [not selected for publication in Official Reports].

** The Waterfront Commission was established by Interstate Compact, approved by Congress, 67 US Stat 541.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_08278.htm