New York Public Personnel Law

April 30, 2020

Multistate project offers 3 successful approaches for creating and disseminating health data

The results of a multistate research pilot project* offers 3 successful approaches for creating and disseminating medical data to communities. Sub-county data often are more difficult to obtain than county-level data and require additional considerations such as estimate stability, validating accuracy, and protecting individual confidentiality.

The Journal of Public Health Management and Practice has published a paper co-authored by Trang Q. Nguyen, MD, DrPH; Isaac H. Michaels,** MPH; Dulce Bustamante-Zamora, PhD; Brian Office of Public Health Practice, New York State Department of Health, Albany, New York (Dr Nguyen, Mr. Michaels, and Ms Li); Department of Epidemiology and Biostatistics, School of Public Health, University at Albany, Rensselaer, New York (Dr Nguyen, Mr Michaels, and Ms Li); Office of Health Equity, California Department of Public Health, Sacramento, California (Dr Bustamante-Zamora); Hospital Industry Data Institute, Missouri Hospital Association, Jefferson City, Missouri (Dr Waterman); Division of General Medical Sciences, Department of Medicine, Washington University School of Medicine, St Louis, Missouri (Dr Nagasako); BJC HealthCare Center for Clinical Excellence, St Louis, Missouri (Dr Nagasako); and University of Wisconsin Population Health Institute, University of Wisconsin-Madison, Madison, Wisconsin (Drs Givens and Gennuso).

The teams summarized the common themes shared by all projects as well as unique technical considerations arising during the project implementation. In addition, technical challenges and implementation challenges involved in sub-county data analyses are discussed. Lessons learned and proposed recommendations for prospective analysts of sub-county data are provided on the basis of project experiences, successes, and challenges.

The teams encourage future projects to further refine techniques for addressing these critical considerations.

* The project was funded by County Health Rankings and Roadmaps, a collaboration between the Robert Wood Johnson Foundation and the University of Wisconsin Population Health Institute. Additional research support (E.N.) was provided by BJC HealthCare and NIH/NCATS Washington University-ICTS grants UL1 TR000448 and KL2TR000450.

** NYPPL earlier noted New York State health statistics and data reports posted on the Internet by Mr. Michaels at https://publicpersonnellaw.blogspot.com/2020/04/new-york-covid-19-data-tracking-report.html

An abstract of the paper and a link to the text of the Journal's paper is on the Internet at:
https://journals.lww.com/jphmp/Abstract/9000/Generating_Subcounty_Health_Data_Products__Methods.99288.aspx

April 29, 2020

Application to quash a subpoena ad testificandum

Following an investigation, a tenured high school principal [Principal] employed by the New York City Department of Education [NYCDOE] was served with charges and specifications of misconduct alleging the improper utilization of school funds for inappropriate or personal reasons.

An Education Law §3020-a disciplinary hearing was conducted and 23 of the charges and specifications filed against Principal were sustained. The Hearing Officer concluded that the appropriate penalty to impose would be termination from service. The Chancellor of NYCDOE sustained the findings of the Hearing Officer that Principal was guilty of misconduct but, citing mitigating factors including Principal's "years of unblemished service," reduced the penalty to [1] a six-month suspension without pay and [2] removal from the position of principal and [3] assignment to a nonsupervisory administrative position.

Principal subsequently entered into a "stipulation of settlement" with NYCDOE pursuant to which, among other things, NYCDOE agreed

[1] not terminate Principal;

[2] suspended Principal for six months without pay;

[3] reinstate Principal to her tenured teaching position; and

[4] assign Principal to a nonteaching position. In addition NYCDOE and Principal mutually agreed to release the other from any future claims related to the disciplinary matter.

The a complication arose.

Principal's representative in the §3020-a disciplinary action was a union-assigned attorney [Attorney]. During the course of the disciplinary hearing, Attorney applied for and accepted a position as executive deputy counsel with NYCDOE, whereupon Attorney recused herself from representing Principal in the then ongoing §3020-a disciplinary action.

Principal continued pro se* through the remainder of the disciplinary hearing and entered into the stipulations of settlement described above.

Based upon the disciplinary findings, New York State Department of Education [SED] commenced a decertification proceeding to determine if Principal was of good "moral character" and entitled to retain her teaching certificate. SED then moved to apply the findings of fact made by the Hearing Office in the disciplinary hearing in the decertification hearing under color of the doctrine of collateral estoppel.

The Hearing Officer in the SED proceeding granted SED's motion subject to the qualification, among others, that collateral estoppel would not apply if Principal lacked "competent counsel" at the disciplinary hearing. At Principal's behest, the Hearing Officer in the decertification proceeding issued a subpoena ad testificandum** requiring Attorney, now a NYCDOE employee and nonparty witness, to testify at the decertification hearing to assist in Principal's defense against the application of collateral estoppel based upon her claim that she lacked competent counsel at the disciplinary hearing.

The Hearing Officer denied NYCDOE's motion to quash the subpoena, finding that Attorney's testimony would be relevant to Principal's defense that she lacked competent counsel. NYCDOE then moved in Supreme Court to quash the subpoena. Principal opposed the motion and sought a court order to compel compliance with the subpoena.

Supreme Court granted the motion to quash, finding, among other things, that Attorney's testimony was immaterial to the decertification hearing in that it did not concern Principal's moral character. Principal appealed the Supreme Court's decision.

The Appellate Division, explaining that the "limited issue" it was whether the subpoena ad testificandum issued in the pending SED administrative decertification matter was properly quashed by the Supreme Court.

Noting that a subpoena ad testificandum will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry, the Appellate Division, citing Kapon v Koch, 23 NY3d at page 39, said that the party moving to quash bears "the burden of establishing that the subpoena should be [quashed] under such circumstances."

Principal sought to subpoena Attorney in order to defend — in the decertification proceeding — against SED's request to collaterally estop Principal from challenging the factual findings made at the §3020-a disciplinary hearing.

Opining that factual findings made in the course of a disciplinary hearings have been given collateral estoppel effect, provided the party to be precluded "had a full and fair opportunity to be heard with respect to the charges of misconduct," the Appellate Division pointed out that the SED Hearing Officer recognized this issue and only provisionally granting SED's motion to apply collateral estoppel in the ongoing decertification proceeding.

As to Principal's contention that she "lacked competent counsel" in the §3020-a disciplinary proceeding, the Appellate Division said that the SEC Hearing Officer noted that "[e]vidence admitted to date shows that while representing ... [Principal] in the [§3020-a disciplinary] proceeding ... [Attorney] was actively seeking employment with [NYCDOE] [and, d]uring the course of the [disciplinary] proceeding .... [Attorney] was offered and accepted a position with [NYC]DOE."

This alone, said the Appellate Division, is sufficient to allow Principal to inquire into Attorney's handling of her [§3020-a disciplinary] action "for the purpose of avoiding the application of the doctrine of collateral estoppel."

In other words the Appellate Division deemed Attorney's testimony "highly relevant to whether collateral estoppel will be applied in the pending SED decertification proceeding."

Accordingly, the court found that NYCDOE had not satisfied its burden of proof with respect to its motion to quash the subpoena. While stating that it "express[es] no opinion on the ultimate merits of the collateral estoppel defense or any other issue," the Appellate Division concluded that Attorney's testimony at the decertification proceeding "is not 'utterly irrelevant' to the inquiry regarding the preclusive effect, if any, to be given to the factual findings made at the disciplinary proceeding."

Thus, it was error for Supreme Court to have quashed the subpoena.

* To act as one's own attorney.

** A subpoena ad testificandumrequires a person to come to court to testify in the event the person declines to come on his own. Another type of subpoena, a subpoena duces tecum, is used to require an individual to bring specified documents, papers or writings to the court to be used as evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02140.htm

April 27, 2020

New York COVID-19 Data Tracking Report Expanded

Isaac Michaels, a practicing epidemiologist and public health doctoral student at the State University of New York at Albany, has enhanced his program showing the geographic distribution of confirmed cases of COVID-19 in New York State.

Automatically updated daily, the data can be viewed without charge by clicking here: https://isaacmichaels.netlify.com/post/new-york-state-covid-19-map/

Click any topic shown in color set out below to go directly to that item.

Summary

New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.