Employer's zero-tolerance policy for workplace violence sustained

The Appellate Division unanimously affirmed Supreme Court's denial of Plaintiff's petition to vacate an arbitration award that found Plaintiff guilty of violating his employer's zero-tolerance policy for workplace violence and imposing a penalty of a 25-day suspension without pay.

The court rejected Petitioner's contention that the arbitration award was irrational because the arbitrator did not explain where Petitioner should have "should have retreated" from the confrontation as "the path of analysis, proof and persuasion by which the arbitrator reached [his] conclusion is beyond judicial scrutiny," citing Matter of New York State Correctional Officers and Police Benevolent Assn. v State of New York,94 NY2d 321.*

The Appellate Division also observed that the arbitration award did not violate public policy as there are "no public policy considerations which would prohibit an arbitrator from deciding if an employee should be disciplined for workplace violence or imposing a 25-day suspension for such violence."

* In Correctional Officers the Court of Appeals held that courts "are not authorized to revisit ... the arbitrator's assessment of the evidence ... or reasoning in fashioning the [arbitration] award".

Click HERE to access the Appellate Division's decision posted on the Internet.

Imposing a reasonable disciplinary penalty under the circumstances

The Board of Trustees of the Pound Ridge Library District dismissed the Director of the Pound Ridge Library [Plaintiff] after adopting the findings and recommendation of a disciplinary Hearing Officer, made after a hearing finding the Plaintiff "guilty of certain charges of misconduct and incompetence." Plaintiff thereupon initiated a CPLR Article 78 action challenging the Board's action.

Supreme Court transferred the proceeding to the Appellate Division pursuant to CPLR §7804(g). The Appellate Division granted Plaintiff's petition to the extent it annulled so much of the determination as found the Plaintiff guilty of some of the charges and specifications charged, vacated the penalty imposed by the Board, termination, and remitted the matter to the Board for its consideration of a new, and appropriate, penalty to be imposed "under the circumstances."

Upon reconsideration of the matter as the court mandated, the Board voted to impose the penalty of demoting Plaintiff to the position of Librarian I. Plaintiff then commenced the instant proceeding to review the Board's determination to impose the penalty of demotion to Library I. Supreme Court denied Plaintiff's petition seeking to vacate the Board's determination and dismissed the proceeding.

Plaintiff appealed, contending that the penalty imposed "was unlawful since it was based on alleged misconduct with which she had not been charged and/or charges that were dismissed by this Court."

The Appellate Division held that Plaintiffs arguments were "without merit" as they were based "upon mere speculation and is otherwise not supported by the record." Further, opined the Appellate Division, "contrary to [Plaintiff's] contention, the record fails to raise any issues of fact material to the Board's determination which required a trial."

Quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, the court explained that "[a]n administrative penalty must be upheld unless it 'is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

The Appellate Division pointed out that it had previously determined that substantial evidence supported the Board's determination that the Plaintiff was guilty of certain charges of misconduct and incompetence but further determined that so much of the determination as found the Plaintiff guilty of the remaining charges was not supported by substantial evidence "and that the penalty of termination of the petitioner's employment for the charges and specifications which were supported by substantial evidence was so disproportionate to the offense as to be shocking to one's sense of fairness," typically referred to as the Pell Doctrine.

Essentially, said the Appellate Division, the matter before the Board was its determining "the appropriate penalty to be imposed" in lieu of dismissal.

In the words of the court "Under the circumstances presented, the penalty of demotion to the position of Librarian I" effective as of the date of the Board's original determination" is not so disproportionate to the offenses which "this Court found to be supported by substantial evidence as to be shocking to one's sense of fairness."

The Appellate Division further concluded that the Board did not violate Civil Service Law §77 in demoting Plaintiff, nor "in basing an award of back pay and benefits commensurate with the position of Librarian I" from the effective date of Plaintiff's demotion, September 26, 2016, citing Matter of DeStefano v Board of Coop. Educ. Servs of Nassau County, 50 AD3d at 899.

Click HEREto access the instant decision by the Appellate Division.

A former employee's right to bring an action alleging a violation of Civil Service Law §75-b, the "whistle blower law," survives the employee's separation from employment

In this CPLR action the Appellate Division rejected a lower court's ruling that Civil Service Law §75-b does not apply to actions taken by a public employer against a former employee prohibited by §75-b after an employee has resigned.

Rather, said the court, Civil Service Law §75-b prohibits a public employer from dismissing or taking any "other disciplinary or other adverse personnel action against a public employee regarding the employee's employment" because the employee discloses information of either:

(1) a violation of rule or law which presents a substantial and specific danger to public health and safety, or 

(2) improper governmental action (see Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85. 

The Appellate Division explained this includes "... blacklisting and providing negative references to an individual's prospective employers in retaliation for prior reports of government misconduct." Such actions may constitute adverse personnel action within the meaning of §75-b in the same way that the State Human Rights Law has been found to cover certain violations of the State Human Rights Law, citing Beckett v Prudential Ins. Co. of Am., 893 F Supp 234."

 

Enforcing the federal Hatch Act 101

Although the federal Hatch Act generally prohibits state and local employeesserving with state or local government entity whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency, from being partisan candidates for elected office, Section 1502(a)(3) of the Act carves out a number of exceptions.

In particular, the provisions set out in subsection (a)(3) of Section 1502 do not apply to the Governor or Lieutenant Governor of a state or an individual authorized by law to act as Governor; the mayor of a city; a duly elected head of an executive department of a state or a municipality of a state who is not classified under a state, municipal, merit or civil-service system; or an individual holding elective office

A number of state, however, are reported to have authorized "partisan elections" in selecting individuals seeking to be elected to the school boards of public elementary and secondary schools district and a number of other states are reported to be considering enacting legislation permitting "partisan elections" to such pubic school boards.

However there are penalties that may be imposed should the federal Merit Systems Protection Board determines that the "partisan election" of an individual to a public school board constitutes a violated the Hatch Act.

For example, 5 USC 1506 provides:

1. In the event the federal Merit Systems Protection Board finds that a state or a local officer or employee has not been removed for his or her office or employment within 30 days after notice of a determination by the Board that he or she has violated §1502 of the Act, "and that the violation warrants removal" of the individual from such office;

or

2. In the event the federal Merit Systems Protection Board finds that the individual "has been appointed within 18 months after his [or her] removal to an office or employment in the same state in a state or local agency ... which does not receive loans or grants from a Federal agency, 

3. the Board shall make and certify to the appropriate Federal agency an order requiring that agency to withhold from its loans or grants to the state or local agency to which notice was given an amount equal to 2 years’ pay at the rate the officer or employee was receiving at the time of the violation."

Further, in the event the state or local agency "to which appointment within 18 months after removal has been made is one that receives loans or grants from a Federal agency, the Board order shall direct that the withholding be made from that state or local agency."

In Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], the Appellate Division opined that an individual otherwise entitled to an "administrative due process disciplinary hearing” such as one provided by a Taylor Law collective bargaining agreement [CBA] or by state law, may be summarily removed from his or her position under certain conditions. Further, said the court, "the arbitration of this grievance would offend public policy" as might otherwise be required by a collective bargaining agreement" would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope, citing Board of Educ. v. Areman, 41 NY2d 527. 

The Appellate Division explaining that the only penalties for violating the Act are either [1] removal from office or employment, or [2] the subsequent loss of Federal funds otherwise available to the employer. In contrast, observed the court, under the CBA an arbitrator typically has a range of disciplinary options that may be imposed on the wrongdoer that are much less severe than termination of employment.

The New York State Bar Association has posted an article by Sung Mo Kim, Esq. addressing the impact of the Merit Systems Protection Board finding violations of the Hatch Act on the Internet, [URL = https://nysba.org/app/uploads/2020/03/HatchActKimMunicipalFall06.pdf ].

Other "Hatch Act" court decisions involving New York public employees include Kraham v Lippman, USCA, 2nd Circuit, 478 F3d 502 [Political party officials, others, barred from receiving court fiduciary appointments] and In the Matter of Wayne Spence, as President of the New York State Public Employees Federation, AFL-CIO, et al. v New York State Department of Agriculture and Markets et al., 154 AD3d 1234, affd., 32 NY3d 99 [Public employers may prohibit its employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test].

Click HEREto access Chapter 15 of the US Code, captioned "Political Activity of Certain State and Local Employees," posted on the Internet.