AELE case notes, publications, and seminar alerts for June 2020

• Adverse Actions Against Public Employees For First Amendment
  Speech: An Introduction and Overview. New June AELE Law Journal article, http://www.aele.org/law/2020all06/2020-06MLJ201.pdf
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• Public Safety Discipline and Internal Investigations Seminar---Attend Virtual or In Person. Las Vegas, Nevada is opening for business and will be in full swing for the September 28, 2020 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations Seminar." A first: You can virtually attend the seminar because it will be broadcast live. The seminar begins on Monday, September 28 and ends at Noon on October 1, 2020. Another first is online registration and payment. For registration and more information, http://www.aele.org/public-safety-discipline-and-internal-investigations.html
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• June Law Enforcement Liability Reporter: This issue has cases on assault and battery: pepper spray, false arrest/imprisonment: no warrant, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, interrogation: juveniles, immigrants and immigration issues, search and seizure: home/business, and search and seizure: person. http://www.aele.org/law/2020all06/LR2020JUN.pdf
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• June Fire, Police & Corrections Personnel Reporter: This issue has cases on age discrimination: termination, FLSA: overtime in general, First Amendment, handicap/abilities discrimination, race discrimination, and whistleblower protection. http://www.aele.org/law/2020all06/FP2020JUN.pdf
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• June Jail and Prisoner Law Bulletin: This issue has cases on   COVID-19, governmental liability: policy/custom, medical care: dental, Prison Litigation Reform Act: exhaustion of remedies, prisoner assault: by inmates, prisoner suicide, prisoner transport, and religion. http://www.aele.org/law/2020all06/JB2020JUN.pdf
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• An ON-DEMAND recording of the May 26, 2020 Webinar: Law Enforcement Use-of-Force Accountability: Qualified Immunity, "Standards," Degrees of Certainties, and Junk Science is now available for viewing at https://www.youtube.com/watch?v=Dg5GUe9BQt8&feature=youtu.be
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Imposing a "one-year dismissal probation" as part of a disciplinary penalty

A New York City police officer [Officer] was charged and found guilty of multiple New York City Police Department patrol guide violations that occurred in five separate incidents in course of a disciplinary hearing conducted by an assistant deputy commissioner [ADC]. The penalty recommended: a "one-year dismissal probation",* a 31 day suspension without pay which , the decision notes, had already been served, and the forfeiture of 20 vacation days.

Officer filed a CPLR Article 78 petition in Supreme Court challenging the disciplinary action taken against him. Supreme Court transferred Officer's petition to the Appellate Division, which court unanimously denied Officer's petition and dismissed the action.

The Appellate Division explained that all charges against Officer that were sustained by the ADC were supported by substantial evidence in the record. The court said it found no reason to overturn the ADC's credibility determinations, noting that such determinations are "largely unreviewable".**

As to Officer's allegation that hearsay evidence had been considered by the ADC in his arriving at his determination, the Appellate Division, citing Matter of Rosa v New York City Hous. Auth., Straus Houses, 160 AD3d 499, said "hearsay evidence may be the basis for an administrative determination and — if sufficiently relevant and probative — may constitute substantial evidence alone".

Addressing Officer's objection to the disciplinary penalty imposed on him, the Appellate Division, applying the so-called Pell standard***,  opined that it did not find such penalty to be so disproportionate to the offences for which Officer had been found guilty as to shock one's sense of fairness.

* No specific condition or reason is identified in the court's decision with respect an act or omission that would trigger the appointing authority's power to terminate Officer without notice and hearing while Officer was serving as a probationary employee [see Taylor v Cass, 122 A.D.2d 885]. 

** Berenhaus v Ward, 70 NY2d 436.

*** Pell v Board of Education, 31 NY2d 222.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_03075.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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A 15-day suspension from employment without pay found reasonable under the circumstances

Supreme Court denied a teacher's [Plaintiff] petition seeking to vacate an arbitration award suspending him for 15 days without pay. The Appellate Division unanimously affirmed the Supreme Court's ruling. 

Citing Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, the Appellate Division held that the arbitrator's decision has a rational basis and was supported by the evidence. 

The record, said the court, shows that the arbitrator reasonably determined that the Petitioner was guilty of misconduct when he locked a 10-year old student out of the classroom and left him unsupervised in the hallway. 

Even if Petitioner was justified in removing the student from the classroom, said the Appellate Division, his actions in locking the boy out of the room, in a state of distress and leaving him in the hallway without adequate supervision, violated school policy.

The Appellate Division said that imposing a penalty of a 15-day suspension without pay from employment "does not shock our sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00976.htm

Resolving a dispute that arose in the course of negotiating a collective bargaining agreement

The Detective Association [Plaintiff] alleged that the City of New York [City] made an oral promise in the course of its collective bargaining negotiations with the Plaintiff that in the event it reached a collective bargaining agreement [CBA] with the Plaintiffs before reaching a CBA with another union with which it was then engaged in collective bargaining, the Benevolent Association, it would not then use its contract with the Benevolent Association as leverage to extract additional concessions from Plaintiff.

After negotiating a CBA with the Plaintiff, the  City subsequently entered in a CBA with the Benevolent Association that included a wage increase for incumbent officers 2.25% higher than Plaintiff had received on behalf of its negotiating unit members. This increase was funded by reducing entry level pay and, or, benefits for new officers in the Benevolent Association negotiating unit, a practice known as "selling the unborn." 

Plaintiff contended that it did not represent entry-level members and the City said Plaintiff would have to make concessions such as giving back certain benefits then being enjoyed by Detective Association unit members if it wished to obtain the same 2.25% wage increase for individuals in its negotiating unit as the Benevolent Association had negotiated for its unit members, a practice known as "attrition bargaining."

Plaintiff sued, seeking a declaration that its unit member are entitled to the 2.25% wage increase and the City is estopped from demanding that funds for the increase be achieved through "attrition bargaining". 

Supreme Court denied the City's motion to dismiss Plaintiff's complaint in its entirety, which ruling was unanimously reversed, on the law, by the Appellate Division.

The Appellate Division explained that in this instance Plaintiff was attempting to have the court interpret the CBA between the City and the Plaintiff on grounds of fairness and equity -- impliedly to include a 2.25% wage increase -- places this dispute squarely within the definition of a grievance within the meaning of the CBA, i.e., "a dispute concerning the ... interpretation of the terms of this collective bargaining agreement." 

Accordingly, opined the Appellate Division, the issue must be resolved pursuant to the grievance procedures set forth in the CBA which provides that in the event a matter is not resolved at an earlier stage, it will be arbitrated before the New York City Board of Collective Bargaining (BCB).

The Appellate Division concluded that this dispute was within BCB's primary jurisdiction as Plaintiff alleged  that the City not only failed to "implement" the CBA between the parties, but subverted it by negotiating a CBA with another employee organization that entailed "selling the unborn" and thus had "engaged in conduct antithetical to good faith bargaining as defined in [the New York City] Administrative Code §12-306(c)."

In the words of the Appellate Division, "This is a claim of 'improper practices' that is properly addressed by BCB," citing §12-309[a][4] of the Administrative Code of the City of New York.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01711.htm

Threatening an employee with disciplinary action if he does not resign from his position

The plaintiff [Petitioner] brought an action in federal district court alleging that the Town of East Haven, Connecticut [Town] discriminated against her because of her age in violation of the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§621‐634, and Connecticut state law.

The federal district court granted Town's motion for summary judgment on the sole ground that Petitioner had failed to make out a prima facie case of any adverse employment action because Petitioner chose to retire rather than attend a scheduled disciplinary hearing. This,  in the words of the U.S. Circuit Court of Appeals, Second Circuit, was "the only merits‐based challenge presented in the Townʹs summary judgment motion."

Petitioner appealed the district court's ruling contending that the court erred in failing to view her evidence that her retirement was not voluntary but was coerced by the threat of likely termination as the result of a disciplinary action undertaken by Town against her and thus constituted a constructive discharge.

The Circuit Court agreed, holding that viewing the evidence in the light most favorable to Petitioner sufficed to present genuine issues of fact "as to whether a reasonable person in Petitioner's shoes would have felt compelled to retire." Again, in the words of the Circuit Court, "If this case were tried, a factfinder, applying the correct legal standard to the issue of constructive discharge, could rationally find that an employee in [Petitoner's] shoes would have felt compelled to submit her resignation stating that she was retiring, rather than face nearly certain termination."

The Circuit Court vacated the district court's judgment and remanded the matter to the lower court for further proceedings.

In Rychlick v Coughlin, 99 A.D.2d 863, aff'd 63 NY2d 643, the Appellate Division opined that threatening to do what the appointing authority has a right to do – in this instance filing  disciplinary charges against Rychlick if he refused to resign from his position -- did not constitute coercion so as to make Rychlick’s resignation involuntary. 

Further, 4 NYCRR 5.3(b), which applies to officers and employees of the State as the employer, in pertinent part provides that "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local jurisdictions in New York State have adopted a similar rule or regulation.

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

https://www.leagle.com/decision/infco20200310084

Determining the beneficiaries of a retiree's death benefit

The retiree [Decedent], a member of the New York City Employees' System, [CERS] retired in March 2016. On November 21, 2016, Decedent submitted a notarized retirement option election form to CRES in which she designated the Plaintiff [Beneficiary 1] in this action as the beneficiary of the death benefit payable by CRES to her designated beneficiary. 

On November 25, 2016, Decedent submitted a second form to CERS designating two different individuals, Beneficiary 2 and Beneficiary 3, to receive her CERS death benefit. 

Decedent died on December 16, 2016.

On March 1, 2017, Beneficiary 1 appeared in person at the CERS customer service center and filled out a request for information form seeking the identity of Decedent's death benefit beneficiary. NYCERS mailed a letter dated March 22, 2017 to Beneficiary 1 stating that Beneficiary 2 and Beneficiary 3 were the beneficiaries of Decedent's death benefit. On March 27, 2017 Beneficiary 1  returned to the CERS customer service center and submitted a letter to CERS demanding that CERS halt the distribution of any monies attributed to Decedent's death benefit to Beneficiary 2 and, or, Beneficiary 3. 

CERS subsequently sent a letter dated March 30, 2017 to Beneficiary 1 stating that the death benefit would be paid to Beneficiary 2 and Beneficiary 3 because the last notarized retirement option election form that CERS received from the Decedent designated them as the beneficiaries of Decedent's death benefit.*

In December 2017, Beneficiary 1 initiated an action pursuant to CPLR Article 78, "in the nature of mandamus"**  seeking a court order compelling CERS to pay the Decedent's death benefit to her. CERS and Beneficiary 2 separately moved to dismiss the petition as time-barred.

Supreme Court, in effect granting the motions submitted by CERS and Beneficiary 2, denied Beneficiary's 1 petition, and dismissed the proceeding, explaining that the CERS letter dated March 30, 2017, was a final determination which was mailed to the address provided by Beneficiary 1 and, accordingly, her CPLR petition was untimely under the controlling four-month statute of limitations which began to run "after the [CERS] refusal" to comply with  Beneficiary's 1 request that CERS discontinue distribution of any monies to Beneficiary 2 and, or, Beneficiary 3.  Beneficiary 1 appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division sustained the lower court decision, observing that CERS' letter dated March 30, 2017, was an unequivocal refusal to comply with Beneficiary 1's  demand, which constituted a final determination by CERS for the purposed of the determining the date on which the statute of limitations commenced to run. As that letter was mailed to the address indicated on the New York State Identification Card that Beneficiary 1 provided as proof of her identification at the time of her demand, which, said the court, CERS had every right to rely upon as Beneficiary 1's correct address. Further, CERS did not receive any notice that the letter dated March 30, 2017 it mailed to Beneficiary 1 was returned to it as undeliverable.

Accordingly, the Appellate Division stated that it agreed with the Supreme Court's determination granting the separate motions of CERS and B2 to dismiss Beneficiary 1's CPLR Article 78 petition as untimely and dismissing the proceeding.

* In disputes such as these the Retirement System typically takes the position that it is merely a "stakeholder" and "awaits the court's order instructing payment" in the event its decision is challenged.

** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03016.htm

Proper service on a necessary party is critical to satisfying jurisdictional requirements

The employee in this action [Petitioner] submitted two appeals to the Commissioner of Education challenging her School District employer's changing her full-time position to a part-time position. Ultimately the Commissioner consolidated the two appeals and dismissed them, finding that they were both procedurally and substantively deficient. Petitioner then commenced a CPLR Article 78 proceeding against, among others, the Commissioner and the Department of Education [State].

The State move to dismiss the action, advancing the affirmative defense of lack of personal jurisdiction due to defective service. Supreme Court determined that Petitioner had failed to properly serve the State and that, inasmuch as the Commissioner was a necessary party, "the failure to obtain personal jurisdiction over her warranted dismissal of the proceeding in its entirety." Petitioner appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division explained that although Petitioner had effectuated service upon the Commissioner and the Department of Education, that service was jurisdictionally defective inasmuch as Petitioner failed to also "serve a copy of the notice of petition on the Attorney General's office as required by CPLR §7804 (c)." Observing that the Commissioner, at a minimum, was a necessary party given that the proceeding was commenced to challenge the Commissioner's determination, the court said that contrary to Petitioner's contention, "her pro se* status and the Attorney General's actual awareness of the proceeding" did not serve to cure or excuse Petitioner's failing to serve necessary parties.

Finding that Supreme Court properly concluded that the failure to obtain personal jurisdiction over the Commissioner warranted dismissal of the Article 78 proceeding in its entirety, the Appellate Division affirmed the lower court's ruling.

* Latin: A term use to describe a litigant representing himself or acting on his own behalf in a civil action. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02834.htm