A court’s review of a quasi-judicial administrative hearing is limited

A court’s review of a quasi-judicial administrative hearing is limited
Mannino v Department of Motor Vehicles.- Traffic Violations Division, 2012 NY Slip Op 08529, Appellate Division, Second Department

In this CPLR Article 78 proceeding the Appellate Division reviewed a determination of the Administrative Appeals Board of the New York State Department of Motor Vehicles that confirmed a determination of an Administrative Law Judge.

Sustaining the Board’s decision, and dismissing the proceeding on the merits, the Appellate Division set out the following guidelines addressing the role of the courts in considering appeals from a quasi-judicial administrative decision.

The court said:

[1] To annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination, explaining that substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;" and

[2] The courts may not weigh the evidence or reject the choice made by an administrative agency or tribunal where the evidence is conflicting and room for choice exists.

Deciding, upon review of the record, the record demonstrates that the findings of the Administrative Law Judge are supported by substantial evidence, the Appellate Division dismissed the appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08529.htm

Audits released by the New York State Comptroller

Audits released by the New York State Comptroller

From the Office of the State Comptroller, December 11, 2012

On December 11, 2012 New York State Comptroller Thomas P. DiNapoli announced the following audits of State agencies by his office have been issued. 

The audits addressed such issues as overtime procedures, processing NYSHIP health insurance claims, travel expenses incurred by certain state workers, the disposal of computers, Medicade payments and dual employment.

Office of Court Administration, Controls Over Overtime Costs (2011-S-2)
Based on a random sample of 196 overtime payments, auditors found 110 lacked required written pre-approval for scheduled overtime and 86 lacked documentation to support that a required review was done to identify alternatives for unscheduled overtime. OCA's Financial Management Information System summary level overtime reporting was not being routinely provided to the courts for monitoring purposes and no user training for the System had taken place in years. Auditors recommended OCA ensure that supervisory staff comply with requirements for written preapproval of scheduled overtime and documented analysis of potential steps to avoid unscheduled overtime; make sure all appropriate steps have been undertaken to control public safety department overtime costs; and ensure that the new financial management system is rolled out with necessary user training and support.

New York State Health Insurance Program, Empire BlueCross BlueShield Coordination of Benefits With Medicare Part A Payments (2011-S-31)
Empire generally processed claims correctly when it was paid as the primary payer for patients with both Empire Plan and Medicare coverage. However, auditors found Empire was paid incorrectly as the primary payer on 13 claims totaling $254,141, when Medicare should have been the primary payer.
Auditors recommended Empire develop controls to help ensure it pays as the secondary payer when Medicare should be the primary payer; and periodically confirm with Civil Service the employment status of members who appear to be Medicare-eligible and have active employment status.

SUNY College at Cobleskill, Selected Employee Travel Expenses (2012-S-143)
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors examined travel expenses for the highest-cost travelers in the state. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. One of these employees worked at the College at Cobleskill and had travel costs totaling $181,890. Auditors found that the travel expenses for the one College employee selected for audit were documented and adhered to State travel rules and regulations.

SUNY College at Oneonta, Selected Employee Travel Expenses (2012-S-145)
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, we audited travel expenses for the highest-cost travelers in the state. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Three of these employees worked at the College at Oneonta and had travel costs totaling $326,125. Auditors found that the travel expenses for the three College employees selected for audit were documented and adhered to State travel rules and regulations.

State Office for the Aging, Disposal of Electronic Devices (2012-S-39)
During March 2012, the office had amassed 18 computers that were ready for surplus sale. Using forensic software, auditors analyzed the media components of each device and found none contained any readable data and concluded the office has complied with requirements to protect sensitive information.

Department of Health Medicaid Payments for Dental Consultations (Follow-Up) (2012-F-27)
An initial audit report examined Medicaid payments to dental specialists for consultation services. Based on a statistical analysis of a sample of claims paid to ten dental specialists, auditors estimated the claims for these specialists alone accounted for at least $1.2 million of Medicaid overpayments to as much as $1.3 million. Auditors concluded that if these results held true for the claims of all other providers of dental consultations during the audit period, then New York's Medicaid program overpaid an additional $2.6 million. In a follow-up report, auditors found DOH officials have made significant progress in correcting the problems identified in the initial report.

City University of New York, New York City Department of Parks and Recreation - Questionable Timekeeping Practices Relating to the Dual Employment of Stationary Engineers (2011-S-27)
CUNY and Parks both employ stationary engineers, who are responsible for a variety of functions, such as operating and maintaining power plants for parks and maintaining campus buildings for CUNY. Auditors matched the state payroll, which accounts for CUNY employees, with the city payroll, which accounts for Parks employees, for the period July 1, 2009 to June 30, 2010, and identified ten stationary engineers who received combined earnings from both CUNY and Parks that ranged from $150,000 to $256,000. Auditors found 338 occasions where engineers reported being present at both jobs at the same time. In another 155 cases, there was no break between the times the staff reported leaving one job and starting their shift at the other. Auditors recommended management increase oversight of stationary engineers and their supervisors to ensure that all schedule changes are properly documented and approved and implement an automated timekeeping system and ensure stationary engineers follow regulations relating to dual employment.

Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17

Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17

Opinions of the Attorney General, Formal Opinion 2012- F2

Public Officers Law §17 provides for the defense and indemnification of State officers and employees sued in a civil action or proceeding in any state or federal court for acts or omissions involving the performance of their official duties.

The Attorney General has advised Gina L. Bianchi, Esq., Deputy Commissioner and Counsel, New York State’s Division of Criminal Justice Services, that members of the Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17.

Presumably the same would be true with respect to the provisions of Public Officers Law §19's applicability  to such Council members. 

Public Officers Law §19 provides, in pertinent part, that it is “the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of his* public employment or duties upon his acquittal or upon the dismissal of the criminal charges against him.”

With respect to political subdivisions of the State, Public Officers Law §18 authorizes such entities, “by the adoption of local law, by-law, resolution, rule or regulation,” to provide for the defense and indemnification of its officers and employees in the event any such persons are sued in federal or state courts in a civil matter related to the performance of their official duties.

* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”

The Attorney General's Opinion 2012-F2 is posted on the Internet as a PDF file at:

http://www.ag.ny.gov/sites/default/files/opinion/2012-f2pw.pdf

Reassignment of school principals challenged by students, resident taxpayers and employees of the school district

Reassignment of school principals challenged by students, resident taxpayers and employees of the school district

Decisions of the Commissioner of Education, Decision 16,431

In these appeals to the Commissioner of Education the petitioners challenged the school board's reassignment of school principals. As two separated appeals concerning the same issue were filed by different petitioners, the Commissioner consolidated them because they “present similar issues of fact and law.”

The petitioners in Appeal I alleged that board members acted negligently, with a wrongful purpose and not in the best interest of students, taxpayers and school staff and asked the Commissioner to overturn the board’s decision and remove certain named board members. 

The petitioners in Appeal II asked the Commissioner to order an “immediate mediation” of the parties’ dispute in order to ensure that the board’s action “was done properly.”

The school district asked the Commissioner to dismiss both appeals contending that

[1] The resolution passed following all due process requirements, in accordance with board policies and pursuant to the board’s powers under the Education Law;

[2] The board was not required to provide a rationale for the board’s decision

[3] the transfers were not made for a wrongful purpose or in willful violation or neglect of duty. And

[4] The transfers were in the best interest of the district.

The Commissioner first addressed a number of procedural issues that should be noted:

1. In Appeal II the petitioners submitted four newspaper articles to support their position. The Commissioner noted that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein” and that he did not consider them “for the veracity of their content.”

2. Petitioners in both Appeal I and Appeal II seek class certification but both appeals failed to satisfy the requirements. The Commissioner explained that while petitioners, as district residents and taxpayers, have standing to maintain the appeals and application, to the extent they seek class certification, they have failed to meet the requirements as an appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class. A petitioner seeking class certification must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class. In this instance, said the Commissioner, the “pleadings are entirely devoid of any allegations addressing these criteria” and class status was denied.

3. Another critical procedural requirement regarding Appeal I was noted by the Commissioner – joining necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined. However in Appeal I two individual’s who would be affected if petitioners prevail on the appeal are necessary parties and petitioners’ failure to join them requires dismissal of Appeal I.

As to Appeal II, the Commissioner stated that it sought an order commanding “immediate mediation” between the board and the community – conducted by a designee from the State Education Department – to ensure that the board’s action here challenged was “done properly” in accordance with state law, applicable district policies and “the best interest of” the district’s students.”

The Commissioner pointed out that an appeal to the Commissioner is appellate in nature and does not provide for investigations. Although petitioners do not explicitly request an investigation, said the Commissioner, their request for a mediation process to determine the propriety of the board’s action in light of their complaints is, in essence, a request for an investigation – relief that is not available in the context of an appeal under §310 of the Education Law.

The final issue addressed by the Commissioner: the application of the petitioners in Appeal I for the removal of school officials.

The Commissioner said that although a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

Based on the record before the Commissioner, the Commissioner ruled that the petitioners in Appeal I have failed to establish that the actions of the individual respondents in voting to transfer the two principals warrant their removal. Further, said the Commissioner, the alleged violations, even if proven, would not, on the record before him, “rise to the level of willful violation of law and neglect of duty that would constitute sufficient grounds for the removal of the individual respondents.” 

The bottom line: The Commissioner decided that on the record before him, petitioners have not met their burden of demonstrating that respondents engaged in any willful or intentional misconduct warranting their removal from office and dismissed the appeals and the application for the removal of certain school officials.

In light of this disposition, I need not consider the parties’ remaining contentions.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16431.html

Juul Agreement entered into by the parties extending a teacher’s probationary period held valid notwithstanding its not being presented to and approved by the school board

Juul Agreement* entered into by the parties extending a teacher’s probationary period held valid notwithstanding its not being presented to and approved by the school board

Marshall v Pittsford Cent. Sch. Dist., 2012 NY Slip Op 07791

A probationary teacher [T] had “the expectation that her probationary period would last for three years.”

At the end of her third probationary year T was informed by the School Superintendent that the Superintendent would not be recommended T to the school board for tenure. In lieu of termination, T entered into a Juul agreement* with the school district. Accordingly, T was granted a fourth probationary year in exchange for the waiver of her right to a claim of tenure by estoppel.

Although the Juul Agreement was signed by T, the Teacher’s Association President and the School Superintendent, it was neither presented to nor ratified by the school board.

Prior to the end of T’s fourth probationary year, the Superintendent again advised T that the she would not recommend T for tenure. T was also told that her appointment as a probationary teacher with school district would end on June 30.

The school board voted to deny T tenure, whereupon T filed a petition pursuant to CPLR Article 78 seeking a court order "declaring" that she has tenure with the School District.

Supreme Court dismissed T’s petition; the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that the record establishes that the Juul agreement between T and the school district was fairly made, holding that “T is estopped from challenging its validity, including the waiver of her right to tenure by estoppel contained therein.”

Conceding that the Juul agreement had not approved by the school board, which omission was characterized by the Appellate Division as “an impermissible abdication of a school board's responsibility to act as trustee …,” the court said that nevertheless agreed with [the school district] that T was equitably estopped** from disaffirming the Juul agreement despite the school board's failure to authorize or ratify it.

Here, said the court, the Superintendent unequivocally stated that she did not intend to recommend T for tenure at the end of her third probationary year based on T's evaluations and input from the Principal. In lieu of the Superintendent's recommending to the Board that T be denied tenure, the parties entered into the Juul agreement.

Further, said the Appellate Division the agreement expressly stated that "the Superintendent . . . has informed [T] that she will not be recommended for tenure at the end of her probationary period (June 30, 2010); and . . . the Superintendent has informed [T] that she is willing to recommend an extension of her probationary period for one year."

The agreement signed by the parties identified above also included a clause that stated that T "accepts the extension of her probationary period until June 30, 2011," and that T "agrees that she waives any right to claim status as tenured teacher by estoppel, acquiescence or any other reason as a result of this extension."

Inasmuch as the record establishes that the Juulagreement was fairly made, the Appellate Division ruled that T is estopped from challenging its validity and may not now disavow her waiver of her right to tenure by estoppel.

*  In Juul v Board of Education, 76 A.D.2d 837, [Affirmed 55 NY2d 648], the Appellate Division held that agreements to extend probationary periods are valid and enforceable when found to be a "knowing and voluntary waiver of the protections afforded by the Education Law."

** The Appellate Division said that “"Equitable estoppel is imposed by law in the interest of fairness to prevent the enforcement of rights which would work a fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07791.htm

An individual terminated pursuant to Civil Service Law §71 must be reinstated consistent with §71 once the individual has been found qualified to return to work by a medical officer selected by personnel department or civil service commission having jurisdiction

An individual terminated pursuant to Civil Service Law §71 must be reinstated consistent with §71 once the individual has been found qualified to return to work by a medical officer selected by personnel department or civil service commission having jurisdiction

Lazzari v Town of Eastchester, 2012 NY Slip Op 08052, Court of Appeals

A Town of Eastchester employee, Richard Lazzari, injured his neck, back, and both arms while performing his job duties. Eventually the Town placed Mr. Lazzari on workers’ compensation leave pursuant Civil Service Law §71 and ultimately the Town notified him that his employment with the Town wasterminated. Mr. Lazzari was also told that he had certain rights regarding reinstatement to his former position and the Town provided him with a copy of Civil Service Law §71.*

Subsequently Mr. Lazzari requested and obtained a review of his medical condition by the Westchester County Department of Human Resources [DHR]. DHR designated a physician to examine Mr. Lazzari and the physician determined that Mr. Lazzari was medically able to perform the duties of his position. Accordingly, DHR advised the Town that as "[t]he examining physician has concluded in his written report provided to this department that Mr. Lazzari is able to perform [his job] duties," Mr. Lazzari should be immediately restored to his position.

The Town Supervisor, however, requested that DHR send the Town a copy of the medical report, contending that "[i]n light of the apparently conflicting medical opinions, we are concerned about Mr. Lazzari's safety and that the interests of the Town and its residents will be imperiled if [he] cannot effectively perform the essential functions of his position."

In response, DHR advised the Town that it would not provide a copy of the requested report and again advised the Town that should immediately reinstate Mr. Lazzari to his former position.**

The Town neither reinstated Mr. Lazzari nor filed a Freedom of Information Law (FOIL) for the document. Further, the Town did not commence an Article 78 proceeding against the County to procure the medical documentation. Neither did the Town challenge the County's determination under Civil Service Law §71. As a result, Mr. Lazzari was required to take the initiative and filed an Article 78 petition seeking a court order compelling the Town to reinstate him.

Supreme Court granted Mr. Lazzari's petition and ordered the Town to reinstate him, reasoning that "i]gnoring the mandate of Civil Service Law §71 is not the appropriate mechanism for questioning [Mr. Lazzari's] condition or challenging the determination of [DHR]." The Town appealed and the Appellate Division reversed the lower court’s ruling on the procedural ground that DHR had not be named as a necessary party in the action and remitted the matter for further consideration with DHR's participation (see 62 AD3d 1002).

The Supreme Court, after revisiting the matter, concluded that Civil Service Law §71 does not provide for a challenge to the determination of the medical officer selected by the civil service commission or department and held the only available remedy was for the Town to institute its own Article 78 proceeding against DHR,. Supreme Court then noted that the Town failed to do so within the statutorily mandated time frame of four months.

Supreme Court then granted Mr. Lazzari’s petition and ordered the Town to reinstate him to his former position, and, in addition, ordered the Town to compensate him with back pay in accordance with Civil Service Law §77, retroactive to the date of DHR's initial letter directing Mr. Lazzari's reinstatement.

Still refusing to reinstate Mr. Lazzari, the Town appealed. The Appellate Division sustained the Supreme Court’s ruling, holding that Civil Service Law §71 did not require DHR to provide the Town with a medical certification or provide it with the underlying medical report (see 87 AD3d 534). In addition, the Appellate Division agreed that Mr. Lazzari was entitled to back pay as directed by Supreme Court.

The Court of Appeals affirmed the Appellate Division’s decision, explaining than when a municipal civil service commission or county personnel officer directs a municipal employer to reinstate an employee pursuant to a medical officer's determination of fitness pursuant to Civil Service Law §71, the municipal employer must immediately reinstate the employee and should it wish to challenge that determination, such a challenge must "take the form of an Article 78 petition."

As the coda to its decision, the Court of Appeals, Justice Pigott dissenting, said:

“After five years of litigation, the County's refusal to give the Town a copy of the medical report, and the Town's refusal to ask for it under FOIL, remain unexplained. The County does not suggest that it would have any ground for rejecting a FOIL request. It seems that a bit more common sense and less stubbornness on either side could have avoided years of trouble and expense. Since the parties have chosen to litigate, however, we must resolve the dispute, and we do so in the County's favor.

“On the issue of back pay, Civil Service Law §77 provides that an "employee who is removed . . . and who thereafter is restored to such position by order of the supreme court, shall be entitled to . . . the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal...." The Town argues that because Mr. Lazzari was lawfully terminated and not unlawfully removed, and does not even challenge his initial termination, Civil Service Law § 77 does not apply. However, within the context of the statute there is no meaningful distinction between an unlawful removal and an unlawful refusal to reinstate, so Mr. Lazzari is entitled to back pay retroactive to the time the County directed the Town to reinstate him on December 18, 2007”

* Civil Service Law §71 provides that an employee terminated for a job-related incident can apply for reinstatement within one year of the abatement of his or her disability. The employee is to apply to the civil service department or municipal commission having jurisdiction "for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission." §71 further provides that “[t]he employee ‘shall be reinstated’ if such medical officer shall certify that such person 'is physically and mentally fit to perform the duties"' of the job,"

** §71, in pertinent part, provides that “If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years” In the event that the individual is reinstated to a position in a grade lower than that of his or her former position, his or her name is to be placed on the preferred eligible list for his or her former position or any similar position.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08052.htm

From the Office of the State Comptroller

From the Office of the State Comptroller

Published during the week of November 26 - December 2, 2012

DiNapoli: New Yorkers Facing $43 Billion in Added Taxes if Congress Fails to Act on Fiscal Cliff

If Congress fails to act to avert sweeping federal tax hikes and sharp spending cuts by January 1, New Yorkers could face more than $43 billion in tax increases and lose $609 million in federal aid in 2013, New York State Comptroller Thomas P. DiNapoli said Thursday in a speech to the Business and Labor Coalition of New York in New York City. Read DiNapoli’s report.

DiNapoli: Ulster County Waste Management Agency Likely Overpaid for Services

The Ulster County Resource Recovery Agency likely overpaid for landfill use, waste hauling and fuel because of questionable bidding practices, according to an auditreleased Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Excelsior Charter School Lease Costing An Extra $800,000 Annually

Board members of the Brooklyn Excelsior Charter School approved the lease of Excelsior’s school building from a related business at a rate almost $800,000 per year above market value, according to a reportissued Friday by State Comptroller Thomas P. DiNapoli. DiNapoli’s auditors also cited that the company that manages the school, National Heritage Academies, refused to divulge financial records supporting expenses it charged to Excelsior.

DiNapoli: DOCCS Could Save Millions on Health Care

New York State could save as much as $20 million a year if the Department of Corrections and Community Supervision applies to the federal Medicaid program for inpatient care for eligible inmates, according to an auditreleased Wednesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the audits of:

the Town of Binghamton;

the Town of Decatur;

the Town of Fallsburg;

the Hamilton College Sewer District; and,

the Village of Marathon.

Amounts paid to an individual “as compensation” required by contract to be returned to the employer ignored in determining a final average salary upon retirement

Amounts paid to an individual “as compensation” required by contract to be returned to the employer ignored in determining a final average salary upon retirement
Licopoli v New York State Teachers' Retirement System, 2012 NY Slip Op 08400, Appellate Division, Third Department

This CPLR Article 78 action challenged the calculation of a retiree’s [R] retirement benefit by the New York State Teachers’ Retirement System [TRS].

R served as superintendent of the School District from 2001 until his retirement in 2009.

In 2006 R and the district entered into an employment contract covering the period of July 1, 2006 through June 30, 2009 that provided for basic annual salary increases of four percent. The agreement, however, required R to make a gift of one percent of his annual salary to the school district each year.

Additionally, the agreement provided that in the event R was to "resign" from his position for any reason other than for "retirement,” he was required to make a gift of $15,000 to the school district.*

When R retired in 2009 TRS determined that the sums he was contractually obligated to refund to the school district annually were to be excluded in determining his final average salary for the purposes of retirement.  

R filed a petition pursuant to CPLR Article 78 challenging TRS’s decision. Supreme Court dismissed R's petition and R appealed.

The Appellate Division said that TRS must determine R’s retirement benefits by first determining his final average salary, noting that a TRS member's final average salary is based on the individual’s “actual compensation earned during either the last three or five years of his or her employment, whichever is higher.” 

Further, said the court, in order to prevent any “artificial inflation of this figure,” any form of extra payment made in anticipation of retirement must be excluded, citing Palandra v New York State Teachers’ Retirement System, 84 AD3d 1689.

R argued that those monies that were paid to him that were to be ”gifted back to the school district” in accordance with the contract between the parties constituted regular compensation “because they did not reflect unusual or extraordinary increases in his annual salary and he would have made the gifts whether or not required to pursuant to the agreement.”

The court disagreed, commenting that although a four percent annual salary increase would not, in and of itself, appear extraordinary, there is no dispute that R was required to return a portion of that amount to the school district to satisfy his contractual obligation to the district.

Accordingly, the Appellate Division concluded that, in effect, R did not actually receive the monies he was contractually obligated to return to the district as employment compensation.

Thus, opined the court, TRS’s determination that the portions of R annual salary that were required to be gifted back to the district must be excluded from the calculation of his retirement benefit was not irrational and dismissed R’s appeal.

* The agreement was subsequently amended at R's request to permit him to make the $15,000 gift to the school district's parent-teacher associations in the event this provision in the agreement was triggered by P's resigning for other than reasons of retirement.  

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08400.htm

Employer met its burden of showing employee failed to establish her age discrimination, hostile work environment, constructive discharge and retaliation claims

Employer met its burden of showing employee failed to establish her age discrimination, hostile work environment, constructive discharge and retaliation claims

2012 NY Slip Op 08248, Appellate Division, First Department

In this action, the plaintiff [P] alleged that she was the target of unlawful age discrimination, served in a hostile work environment, and was subjected to constrictive discharge and retaliation.

The Appellate Division sustained the Supreme Court’s dismissal of the P’s petition, finding that the employer had met its burden of demonstrating P failed to establish her claims of age discrimination, hostile work environment, constructive discharge, and retaliation.

The Appellate Division, with respect to P’s unlawful discrimination claim, explained that there was no evidence that P suffered from an adverse employment action. The assignment of P to certain non-supervisory tasks ordinarily performed by teachers constituted "merely an alteration of her responsibilities and did not result in a materially adverse change,' since [she] retained the terms and conditions of her employment, and her salary remained the same."*

The court said that P failed to raise a triable issue of fact as to her hostile work environment claim, since the alleged conduct and insults by her employer and coworkers were not "sufficiently severe or pervasive to alter the conditions of [her] employment"

Addressing P’s claim of constructive discharge, the court said that standard for establishing "constructive dismissal" is higher than the standard for establishing a hostile work environment, “where, as here, the alleged constructive discharge stems from the alleged hostile work environment.” As P failed to raise a triable issue of fact with respect to her hostile work environment claim, "her claim of constructive discharge also fails.” 

Finally, the Appellate Division held that with respect to P's retaliation claim in found no evidence of an adverse employment action resulting from her filing of a notice of claim against the employer nor was there any evidence of a causal connection between P's commencement of litigation and the allegedly adverse actions against her, commenting that the conduct at issue began months before P filed the notice of claim

* As to P’s complaint alleged disciplinary memoranda in her file, threats of unsatisfactory ratings, disciplinary meetings and allegations of corporal punishment, these did not constitute adverse employment actions as P received "satisfactory end-of-year performance rating[s], and none of the [alleged] reprimands resulted in any reduction in pay or privileges."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08248.htm

Imposing a greater penalty than that recommended by a disciplinary hearing officer

Imposing a greater penalty than that recommended by a disciplinary hearing officer
2012 NY Slip Op 08219, Appellate Division, Third Department

Disciplinary charges were filed against a correction corporal [P] alleging that P struck an inmate across the face with an open hand fracturing the inmate's nose while the inmate allegedly was handcuffed and apparently intoxicated.

In the course of the disciplinary hearing P admitted that he struck the inmate and a surveillance video that recorded the incident was admitted into evidence. The Hearing Officer sustained the charges and imposed as penalty a 30-day suspension without pay.

The Ulster County Sheriff adopted the findings of the Hearing Officer as to P’s guilt but concluded that the appropriate penalty was termination of P's employment with the Sheriff's Department.

Supreme Court dismissed P’s Article 78 petition seeing to vacate his dismissal notwithstanding his “unblemished record of employment with the Department” and P appealed.

The Appellate Division sustained the lower court’s ruling, indicated that its review of the penalty imposed was "limited to whether the penalty is so disproportionate as to be shocking to one's sense of fairness" – the so-called Pell Doctrine [Pell v Board of Education, 34 NY2d 222].

Concluding the P’s dismissal was not shocking to one's sense of fairness given the supervisory nature of his position in the Department and the fact that when this incident occurred, the inmate was handcuffed and under restraint, the court explained that the Sheriff had the right, in determining the penalty to be imposed, to take into account that P did not fully disclose what transpired in the Department's official report, including the fact that he had struck the inmate while he was under restraint.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08219.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls

Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls

Chatelle v North Country Community Coll, 2012 NY Slip Op 08215, Appellate Division, Third Department

When North Country Community College hired Shane Chatelle as its Facilities and Special Projects Manager in 2004, the College’s President provided Chatelle with a letter setting forth his salary and enclosing a copy of the resolution of its Board of Trustees approving the appointment together with a written statement of the Board's "management confidential"* staff policy “purporting to provide,” that among other benefits, that Chatelle would be compensated for up to 180 days of accumulated sick leave upon his severance from employment.

In 2011, Chatelle resigned from his position and requested compensation for his accumulated sick leave. The College, claiming that, despite the statement provided to him upon his appointment, its actual policy authorized compensation for accrued sick leave only upon retirement.

Chatelle sued, contending breach of contract, among other things. Supreme Court granted Chatelle’s motion in part, awarding him $44,114.96 in damages for breach of contract but dismissed his remaining claims. Chatelle and the College “cross appealed” the Supreme Court’s ruling.

The Appellate Division said that the written statement provided to Chatelle upon his employment indicated that he was entitled to "the benefits afforded by the existing [m]aster [a]greements except where modified or defined by the following [benefits]."

With regard to the sick leave benefit, the statement provided that Chatelle was entitled to 30 sick days per year, cumulative to 180 days and "[a]t [the] time of severance sick leave will be compensated."

Although the College, relying on extrinsic evidence, argued that the statement given to Chatelle was in error and that the Board had intended to adopt a policy that only compensated for sick leave at retirement, the Appellate Division said that had “no reason to consider this [extrinsic] evidence because the statement's language is clear and unambiguous.”

Accordingly, said the court, the College is bound by the terms of the writing provided to Chatelle as part of his employment contract “and may not rely on its unilateral mistake to void the agreement,” explaining that the text of the statement is clear and Chatelle does not rely on past practice nor claim “estoppel to enforce his contractual right.”

The Appellate Division, however, modified Supreme Court’s judgment granting Chatelle $44,114.96 as payment for his unliquidated sick leave accruals by reducing the award to $4,770, “representing [Chatelle 's] 159 accrued sick days at $30 per day."

* Presumably Chatelle was designated "managerial" or "confidential" within the meaning of  §201.7 of the Civil Service Law [The Taylor Law] upon his appointment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08215.htm

Limiting the pool of eligibles for a promotion examination to enhance the chances of provisional employees for permanent appointment violates Article VI, §6, of the State Constitution

Limiting the pool of eligibles for a promotion examination to enhance the chances of provisional employees for permanent appointment violates Article VI, §6, of the State Constitution

Ulster County Sheriff's Employees Assn., CWA Local 1105 (Ulster County Sheriff's Dept.), 2012 NY Slip Op 08213, Appellate Division, Third Department

This appeal flows from Supreme Court’s granting the Ulster County Sheriff’s Employees Association’s  CPLR 7510 petition seeking to confirm an arbitration award.

The Association, in response to Ulster County’s changing the minimum qualifications for eligibility for the promotion examination to Assistant Warden by excluding correction sergeants* as eligible employees for the examination, had filed a contract grievance contending that this change by the county personnel officer violated the parties' collective bargaining agreement [CBA]. 

Ultimately the grievance was submitted to arbitration.

The question presented to the arbitrator: "Did the County violate the preamble and/or Article 5 of the CBA when it excluded [those serving in the] title of correction sergeant from being eligible to take the 2009 exam for Assistant Warden? If so, what shall be the remedy?"

The arbitrator found that the County violated the CBA “when it excluded correction sergeants from the eligible list” and, as the remedy,  

[1] Directed that the results of the 2009 exam be annulled;** and

[2] Directed that a new exam be given for which "correction sergeants with 36 months of permanent competitive class status would be eligible."

In sustaining the Supreme Court's confirming the arbitrator’s award, the Appellate Division applied the following guidelines:

1. In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role;

2. An arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice; and.

3. A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The court rejected the County’s argument that the arbitrator's award violated public policy and that it conflicted with the Civil Service Law because it “unduly interferes with the authority of the County's personnel officer to establish minimum qualifications for positions in the Sheriff's Department.”

The Appellate Division explained that an arbitration award may only be vacated on public policy grounds [1] "where a court can conclude, without engaging in any extended factfinding or legal analysis, that a law prohibits, in an absolute sense, the particular matters to be decided, or [2] that the award itself violates a well-defined constitutional, statutory or common law of this State" and [3] "judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement."

Noting that the County's personnel officer had the authority to establish minimum qualifications for promotion to job titles in county government, the Appellate Division said that it did not follow that such determinations are immune from oversight or review.

In this instance, said the court, the arbitrator determined that the change was made to increase the chances that two correction lieutenants who had been provisionally appointed as assistant wardens would ultimately receive permanent appointments to that position.

The court said the it agreed with the arbitrator’s conclusion that "[t]he decision to eliminate [c]orrection [s]ergeants from the pool of candidates [was] solely to increase the odds of the provisional candidates [being appointed permanently to the position] runs afoul of the competitive process envisioned by the Civil Service Law" and violated the State's constitutional provision requiring that civil service positions be filled "according to merit and fitness," citing Article V, §6, of the State Constitution.

* This change resulted in limiting eligibility for the promotion examination to correction lieutenants having at least 12 months of permanent service in the title.

** Presumably this directive resulted in the vacating of all permanent appointments made from the eligible list resulting from the 2009 examination for Assistant Warden.

  

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08213.htm

NYPPL summaries most often read during the month of November 2012

NYPPL summaries most often read during the month of November 2012

The following were the five case summaries most often read by the 16,138 visitors to this LawBlog during the month of November 2012.

The legal distinction between domicile and residence at:

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html

Essentials of the "Pickering Balancing Test” at:

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member at:

http://publicpersonnellaw.blogspot.com/2011/04/school-board-member-seeking-removal-of.html

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law at:

http://publicpersonnellaw.blogspot.com/2011/04/ordering-correction-officer-to-submit.html

and

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits at:

http://publicpersonnellaw.blogspot.com/2011/04/court-finds-pension-board-failure.html

From the Office of the State Comptroller

From the Office of the State Comptroller

For the week of November 26 - December 2, 2012 

Unclaimed funds for New Yorkers in areas hard–hit by Superstorm Sandy

“Nearly $3 billion in unclaimed funds are waiting to be returned to New Yorkers who reside in areas devastated by Superstorm Sandy. I would like to return the money to the rightful owners,” New York State Comptroller Thomas P. DiNapoli said.

“In these difficult times we are seeing more than ever that every single dollar counts. I encourage New Yorkers who have been impacted by the recent storm to initiate the simple process of retrieving their unclaimed funds as they continue to rebuild.”

N.B. You can search for unclaimed funds being held in the Comptroller’s “Unclaimed Property Fund” by clicking on: https://ouf.osc.state.ny.us/ouf/

DiNapoli: Town of Hempstead Should Examine Animal Shelter Costs

Auditors found high operational costs at the Hempstead Animal Shelter among other problems, State Comptroller Thomas P. DiNapoli said Friday. The auditwas undertaken after requests by town residents and Nassau County District Attorney Kathleen Rice.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the audits of:

the Town of Butler;

the Town of Caneadea;

the East Islip Fire District;

the Town of Gates;

the Town of Jay;

he Town of Mamakating;

the City of Newburgh;

he North Bay Fire District;

the Village of Otisville; and,

the Town of Vienna.

Recent rulings and recommendations by OATH Administrative Law Judges

Recent rulings and recommendations by OATH Administrative Law Judges

Summaries published by the NYC Office of Administrative Tribunals and Hearings

Employee alleged to have refused to work overtime
OATH Index No 1748/12

A hospital special officer was charged with insubordination after refusing to work mandatory overtime on 42 occasions. The employee did not appear at the hearing and the matter proceeded by inquest.*

Administrative Law Judge Kara J. Miller found that on each occasion the officer was given a form ordering him to work mandatory overtime and warning him that non-compliance could result in disciplinary action.  Each form was signed and dated by special officer and a supervisor. 

ALJ Miller found that this documentation proved the insubordination.  She recommended that the special officer be suspended without pay for 45 days.

* Courts have held that the appointing authority or its designee may proceed with the disciplinary action even though the employee is not present. Where the individual is to be  tried in absentia, a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did appear at the appointed time and place. Notwithstanding the absence of the individual, the burden is on the charging party to present and prove the disciplinary charges filed against the worker.

The decision is posted at Health & Hospitals Corp. (Jacobi Hospital Ctr.) v. Cooper (in PDF), .

Supervisor charged with leave violations, failure to supervise subordinates, sleeping on duty and misuse of agency property.
OATH Index No. 760/12 

Following a 7-day hearing, ALJ Kevin F. Casey sustained some of the leave violations, the sleeping on duty charge and the misuse of property charge, but he dismissed the failure to supervise charges. 

Noting that it was undisputed that some of supervior’s absences may have been due to medical conditions that he developed after his service at Ground Zero, and that the most serious disciplinary penalty previously imposed on employee was the loss of 10 vacation days, Judge Casey found termination of employment to be an overly harsh penalty and recommended a 48-day suspension without pay, based on principles of progressive discipline. 

The decision is posted on the Internet at Dep’t of Sanitation v. Harris (in PDF),  

Employees alleged to have ignored directives to stop distributing union literature while not on duty
OATH Index Nos. 1497/12, 1499/12, 1707/12

Three New York City correction officers were charged with a number of allegations of misconduct, chief among them refusing to comply with orders to stop distributing union literature on Rikers Island while not on duty and refusing to obey orders to leave the secured island.

The individuals denied they were ever given such orders and asserted a First Amendment right to distribute union information while off-duty. They also offered videos of some of the incidents into evidence.

ALJ Alessandra F. Zorgniotti sustained the charges that correction officers refused to obey orders to stop distributing their materials and orders to leave the island, as well as charges that one officer filed a false report and another failed to turn over his parking pass promptly.

Other allegations were dismissed.

ALJ Zorgniotti noted that a correctional facility presents special circumstances under the First Amendment, and that the employees had failed to prove that their First Amendment rights outweighed the compelling interest of the Department in maintaining a secure facility. 

Judge Zorgniotti recommended that each officer be suspended for 10 days without pay. 

The decision is posted on the Internet at Dep’t of Correction v. Reuter (in PDF), OATH Index Nos. 1497/12, 1499/12, 1707/12

Motor vehicle operator alleged mentally unfit to perform her dutie
OATH Index No. 1546/12  

Administrative Law Judge John B. Spooner found that the individual had a mental disability but that the proof presented at the hearing was insufficient to sustain the allegation that she was presently unfit for her job as a driver.

The ALJ noted that [1] neither of the two incidents proven at trial established that employee was an unfit driver, [2] the individual had recently received favorable evaluations of her driving performance, and[3]  there had been no complaints about the employee since January 2011.

Judge Spooner recommended that the disciplinary charges be dismissed.

The decision is posted on the Internet at  Admin. for Children’s Services v. Anonymous(in PDF),

Newspaper reports admitted into evidence in an administrative disciplinary proceeding

Newspaper reports admitted into evidence in an administrative disciplinary proceeding
2012 NY Slip Op 07479, Appellate Division, Fourth Department

A volunteer firefighter filed an Article 78 petition challenging the Volunteer Fire Company’s decision,  to expel him from membership in the Fire Company following a hearing held pursuant to General Municipal Law §207-l.

The petitioner contended that the Fire Company had violated §160.50 of the Criminal Procedure Law, which provides for the “sealing” of certain record, when the Company admitted into evidence media reports related to the petitioner's arrests or when it presented the testimony of a police investigator who was involved in the relevant criminal investigations.

As to newspaper media reports concerning petitioner's arrests, the Appellate Division, citing New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 AD2d 546, 549, affd 66 NY2d 752, said that such newspaper reports are not "official records and papers . . . relating to [the petitioner's] arrest or prosecution" within the meaning of CPL §160.50(1)(c). Further, said the court, it is " permissible to consider the independent evidence of the conduct [of the petitioner] leading to the criminal charges."

As to the testimony of the police investigator, the court explained that the police investigator was "free to testify from memory" concerning the conduct that led to the petitioner's arrests.”

The Appellate Division then stated there was substantial evidence establishing that the petitioner had exhibited a lack of "good moral character" in violation of Article II, §2 of the Fire Company's Constitution and By-laws and had committed misconduct under General Municipal Law §209-l".

N.B. §209-l provides for the removal of volunteer officers and volunteer members of fire departments charged with, and found guilty of, misconduct or incompetence after a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07479.htm

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law
Hernandez v Office of the Mayor of the City of New York, 2012 NY Slip Op 08067, Appellate Division, First Department

Sergio Hernandez filed an Article 78 petition seeking a court order annulling the determination of the Office of the Mayor of the City of New York denying his requests under the Freedom of Information Law (FOIL) for certain e-mails sent from or “received by any government email accounts assigned to the Office of the Mayor to or from Cathleen Black, at the time she was a nominee for the position of New York City School Chancellor” and certain other records.

Supreme Court directed the City to produce redacted copies of such e-mails, which as the Appellate Division subsequently noted, were not exempt from disclosure as inter- or intra-agency materials within the meaning of Public Officers Law §89[2][g].

The City appealed the court’s order.

The Appellate Division sustained the lower court’s ruling, explaining that Black was not an agent of the City since she had not yet been retained as Chancellor. In addition, said the court, Black was not acting simply as an outside consultant on behalf of the City, but was a private citizen with interests that may have diverged from those of the City.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08067.htm

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

People v Gavazzi, 2012 NY Slip Op 08054, Court of Appeals

This LawBlog’s summary of Gusler v. City of Long Beach, USCA, Docket #11-4493-cv [see http://publicpersonnellaw.blogspot.com/2012/11/the-failure-to-name-parties-appealing.html] noted that the U.S. Court of Appeals, Second Circuit, ruled that the failure to correctly name the parties appealing a federal district court’s ruling was a fatal jurisdictional defect.

In People v Gavazzi the defects challenged by Gavazzi involved the name of the jurisdiction, the name of the court and the name of the justice signing a search warrant.

The Court of Appeals, Justice Smith dissenting, held that a warrant to search Gavazzi’s residence in the Village of Greene, Chenango County, was defective as the result of the inadvertent typing of "Local Criminal Court, Town of Broome, Broome County" at the head of the warrant instead of "Local Criminal Court, Town of Greene, Chenango County." There is no municipality of Broome in either Broome County or Chenango County and the Village Justice signed the warrant without correcting the error.

Further, said the court, the Justice’s signature on a line marked "Signature of Judge or Justice” was illegible.

The Appellate Division had held that the warrant did not substantially comply with §690.45(1)* of the Criminal Procedure Law because it contained "no information from which the issuing court can be discerned" (see 84 AD3d 1427 at 1429). The Court of Appeals agreed with the Appellate Division's analysis, explaining that a search warrant must contain "[t]he name of the issuing court," again citing CPL §690.45 [1]).** Here, however, the Village Justice who signed the warrant included no designation of his court, his signature was illegible, there is no seal, and the caption referred to a nonexistent town.

In the words of the Appellate Division, "on its face the warrant appears to [have been] issued by an unidentified judge in a nonexistent court and town in a different county", concluding that the warrant did not substantially comply with CPL §690.45(1).

The bottom line: evidence sized under color of the warrant had to be suppressed.

* §690.45, in pertinent part, provides that “A search warrant must contain: 1. The name of the issuing court and, except where the search warrant has been obtained on an oral application, the subscription of the issuing judge;"

** The Court of Appeals noted that standard for adherence to the statutory requirement is "substantial — rather than literal — compliance."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08054.htm

Possession of a valid license or permit to perform the duties of the position

Possession of a valid license or permit to perform the duties of the position

Lutz v Krokoff, 2012 NY Slip Op 07938, Appellate Division, Third Department

It is well settled that employment in certain positions or occupations in New York State requires the individual to posses a valid license or its equivalent. Examples of this include teaching in a public school, operating motor vehicle on public highways, practicing law or medicine and serving as a certified public account. In the event the individual no longer possesses the required license or permit, he or she can neither lawfully perform nor be permitted to perform the duties requiring the possession of a valid permit or license.*

When it learned that a police officer’s driver's license was temporarily revoked, the police department’s chief advised the officer that possession of a valid driver's license was a minimum qualification for employment by the department as a police officers and gave him an opportunity to provide documentation demonstrating that he possessed a valid driver’s license.**

When the officer could not produce evidence that he possessed a valid driver’s license his employment was terminated “for failure to meet the minimum qualifications for his position.”

The officer then initiated an Article 78 proceeding challenging his termination as arbitrary and capricious and affected by an error of law. Supreme Court dismissed the police officer’s petition, prompting his appeal to the Appellate Division.

The police department, conceding that possession of a valid driver's license was not specifically listed as a minimum qualification for appointment to the position of a police officer, nevertheless contended that such a license was an implied requirement in view of the fact that the job description for its police officers listed, among other things, the "[a]bility to operate an automobile."

The Appellate Division was not persuaded by this argument, ruling that “summary dismissal of an employee based merely upon an inference cannot be countenanced.” In contrast, said the court, “Where summary dismissal has been upheld for failure to maintain a minimum qualification of employment, the qualification at issue has been clearly and explicitly set forth.”

Further, the court observed that the record indicated that almost one third of the police officers employed by the department performed functions other than those requiring possession of a valid driver’s license and noted that the department’s “Standard Operating Procedures” stated that a police officer shall "[p]ossess a valid New York State driver[']s license, whenever required as a condition of employment" (emphasis supplied by the court).

In the court’s view, this “conditional language” suggested that that there were police officers in the department who were not required to possess a driver's license as a necessary condition of employment.

Noting that the civil service commission having jurisdiction had promulgated a class specification for another position, firefighter, that explicitly required the possession of a valid New York State driver's license at the time of employment and throughout the duration of the individual’s employment as a firefighter, the Appellate Division concluded that the police officer’s termination without a hearing was both arbitrary and capricious and contrary to law and reversed the lower court’s ruling

* See, for example, Meliti v Nyquist, 41 NY2d 183

** In the words of the Appellate Division, citing Carr v NYS Dept. of Transportation, 30 AD3d 1110, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07938.htm

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Uniformed Fire Officers Assn., Local 854 v City of New York, 2012 NY Slip Op 07899, Appellate Division, First Department

Supreme Court denied the City of New York’s motion to quash a judicial subpoena obtained by the Uniformed Fire Officers Association, Local 854, requiring the City to supply it with copies of drafts of a public safety consultant's report recommending a change affecting the City’s 911 call system.

The Appellate Division sustained the Supreme Court’s ruling, holding that the City failed to show that the public interest would be harmed by the disclosure of drafts of the consultant's report to the Local.

The court explained that the City’s claim of protection under the so-called "self-critical" privilege*was misplaced as “This privilege has never been recognized under New York law.”

Further, the Appellate Division observed that the City had not demonstrated that there were "exceptional and compelling circumstances" that might justify the judicial creation of a new privilege

In the words of the court, “Absent sensitive subject matter or exposure of review participants to liability, the City's contention that the disclosure of the drafts would have a chilling effect on the internal discussions of those engaged in reviewing technical projects such as this is speculative.”

In contrast, said the court, Local 854 had shown a need for the drafts for the purpose of  preparing its case before the City’s Collective Bargaining Board.

* The self-critical analysis privilege, if available, would protect an entity’s self-evaluative materials from disclosure when it is shown that the public interest in preserving the internal evaluations of the organization outweighs an interested party's right to the information.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07899.htm

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

Gusler v. City of Long Beach, USCA, Docket #11-4493-cv

Jay Gusler, acting pro se, filed an action under 42 U.S.C. §1983 alleging that the defendants* unlawfully retaliated against him.

The district court dismissed claims against some of the defendants but then dismissed a motion by the remaining individual defendants' raising a defense of qualified immunity. The remaining defendants then appealed the district court's dismissal of their motion.

The Circuit Court of Appeals rejected the appeal filed by the remaining individual defendants, finding that it lacked jurisdiction to consider the merits of the appeal as they had not filed a timely notice of appeal.

Although the notice of appeal contained the full caption of the action, the body of the appeal stated: “Notice is hereby given that the defendant Nassau County hereby appeals.” However, said the court, while The City of Long Beach is in Nassau County, Nassau County itself is not a party in the action.

The Circuit Court said that the appeal as initially filed did not “provide notice to the court [or] to the opposing parties of the identity of the appellant or appellants” so that neither the Circuit Court, nor the district court, nor the plaintiff  “know . . . which parties are bound by the district court’s [decision] [and] which parties may be held liable for costs or sanctions on the appeal.”

Further, noted the Circuit Court, the amended notice of appeal did not cure the problem as the amended notice was filed after the time to appeal had run.**

The Circuit Court dismissed the appeal, explaining that “Because the notice of appeal did not specify which defendants were taking an appeal of the district court’s decision, we lack jurisdiction to consider their appeal.”

* Gusler had named as the defendants in his action The City Of Long Beach, The Long Beach Volunteer Fire Department, The Long Beach Police Department, and twelve individuals.

** The Circuit Court also pointed out that the defendants “did not seek an extension of time to amend and correct the notice of appeal … and the time to do so has long since passed….”

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

http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/doc/11-4493_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/hilite/

Releasing medical records

Releasing medical records

The Port Authority of New York and New Jersey filed a motion to mandate that the plaintiff authorize the release of all of his medical records preceding the accident in which he alleged he was injured.

Supreme Court directed that the plaintiff provide authorizations to release his medical records but limited the release of his medical records to the five years preceding the accident.

The Appellate Division affirmed the lower court’s order, holding that the Authority “failed to demonstrate that all plaintiff's pre-accident medical records were material and necessary in the defense of this action,” explaining that the plaintiff did not allege that the accident “aggravated or exacerbated a preexisting injury or condition.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07898.htm

Challenging the employee's dismissal during his or her probationary period

Challenging the employee's dismissal during his or her probationary period

Supreme Court dismissed a former probationary employee’s petition seeking to annul his termination from his position, the revocation of his New York City Department of Education [DOE] teaching certification, his placement of his name on the DOE's Ineligible/Inquiry list,* and his overall unsatisfactory rating for the 2010-2011 school year.

The Appellate Division sustained the lower court’s actions, explaining that the probationer had failed to establish that his termination, the revocation of his teaching certificate and his placement on the DOE's ineligible/inquiry list, was done in bad faith.

Addressing the individual’s allegation of bad faith, the court noted the record contained evidence of good faith on DOE’s part. For example, said the Appellate Division, the school principal’s "intention was not to terminate [the] petitioner's employment but to extend his probation for an additional year."

In addition, said the court, the record contained evidence of deficiencies in individual's performance during the probationary period.

As to the individual’s challenge to the revocation of his teaching certification and the placement of his name on the ineligible/inquiry list, the Appellate Division ruled that those challenges were not untimely but that Supreme Court had correctly sustained those administrative determinations.

Finally the Appellate Division pointed out that the lower court had correctly dismissed the individual’s challenge to his “U-rating” as it was premature because he had not yet exhausted his administrative remedies.

*Placing an individual’s name on the "Ineligible/Inquiry" list maintained by the New York Department of Education bars that individual from employment at any DOE school while his or her name remains on such list [McPherson v. New York City Dep't of Education, 457 F.3d 211].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07888.htm

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees

Stony Point Police Benevolent Association v Town of Stony Point, PERB Case #U-29118

Attorney Brian D. Nugent* advised NYPPL of a November 14, 2012 ruling by the Public Employment Relations Board [PERB] that considered “exclusivity of unit work” in the context of the employer's reassigning certain duties and functions being performed by employees in a negotiating unit to non-unit employees.

The Stony Point Police Benevolent Association [PBA] filed an improper practice charge with PERB contending that the Town of Stony Point violated §209-a.1(d) of the Civil Service Law [The Taylor Law] when it unilaterally reassigned certain security duties that had been performed exclusively by employees in the  negotiating unit represented by the PBA to non-unit employees.

PERB agreed with the Town that the parties' past practice established a discernible boundary between the work assignment at issue: the reassignment of certain security duties being performed by PBA unit members at the Town's Justice Court to non-unit part-time personnel who were not sworn officers.**

PERB, noting that the duties at issue were transferred from sworn police officers to civilian employees, ruled that under its precedents “it is well-settled that an employer’s civilianization of uniformed services constitutes a de facto change in job qualifications.”

PERB then considered the "balancing test" set out in its decision in Niagara Frontier Transportation Authority, 18 PERB 3083.

Finding that there had been a significant change in the "job qualifications" with respect to the "at-issue" duties, PERB said that the only loss suffered by the PBA and its unit members was the “loss of at-issue work” in contrast to a loss in the number of positions in the unit or a loss of unit member benefits.

PERB's conclusion: the Town had not violated §209-a.1(d) of the Taylor Law, explaining that the Town’s interests associated with the civilianization of the at-issue work outweigh the interests of the unit employees.

* Brian D. Nugent, Esq., Feerick Lynch MacCartney Pllc, http://www.flmpllc.com, represented the Town in this proceeding. 

** See Criminal Procedures Law §1.20.34