Adjunct Law Prof Blog

Federal district court concludes former principal was not speaking as private citizen when she reported predecessor’s financial and administrative irregularities

McArdle v. Peoria Sch. Dist. No. 150, ___F. Supp. 2d____ (C.D. Ill. Jun.7, 2010), is an interesting case. A federal district court granted a school district summary judgment on a former principal’s claim that she was terminated in retaliation for exercising her First Amendment rights. The court concluded that the principal’s speech was not protected by the First Amendment because she spoke pursuant to her official duties.

The district court also ruled that even if the principal had spoken as a private citizen, her speech was not entitled to First Amendment protection because it was not on a matter of public concern, but rather involved a personal grievance. 

I bring this case to your attention because it reviews standard First Amendment principles.

Mitchell H. Rubinstein

 

NLRB Issues Major Decision On Appropriate Unit Determinations

On Aug. 30, 2011, the NLRB issued three major decisions, one of which we review here, Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011).  Download Board Decision

The Board, divided along party lines, overruled Park Manor Care, 305 NLRB 872 (1991) and held that in non-acute care settings the traditional community of interest test applies. The case extensively reviews the community of interest test in acute care institutions and elsewhere, reaffirms that the Act only requires that "an" appropriate unit be found sufficient, that a union can consist of just 2 employees and where the unit consists of a clearly indentifiable group who share a community of interest that unit will not be defeated simply because a smaller unit may also be appropriate. 

This decision is a must read for labor lawyers and scholars. It is also one of the last decisions that Wilma Liebman participated in.

Mitchell H. Rubinstein

3rd Cir. Holds School Dist. Violated 1st A For Disciplining Students For Off Campus Speech

J.S. v. Blue Mountain Sch. Dist., ____F.3d____(3d Cir. Jun. 13, 2011), is an interesting case. The Third Circuit held ruled that a school district violated a student’s First Amendment free speech rights when it disciplined her for creating a a parody MySpace profile page of her middle school’s principal off-campus on a home computer that contained vulgar, lewd and false statements about the principal. The court’s decision is one of two en banc rulings issued on the same day and finding that the school district defendant had violated the student’s First Amendment right to free speech when it disciplined the student for off-campus speech that took place online. 

Law review commentary on this issue would be most welcomed.

Mitchell H. Rubinstein

NLRB Chair Wilma Liebman's Term Has Expired

NLRB Chair Wilma Liebman's term expired on August 27, 2011. She served under three Presidents for almost 14 years and is the third longest serving Member. President Obama has named Mark Gaston Pearce as Chair, Press Release. 

That leaves the Board with three Members. Member Becker's Recess Appointment expires at the end of December at which point the NLRB will again become dysfunctional unless the President appoints someone else. 

I had the pleasure of meeting Chairperson Liebman several times at NYU Law School and at St. John's Law School. She is a wonderful speaker, a superb scholar, knowledgeable as well as personable. Several months ago, I asked her if she was going to seek another term and she responded with a smile that 14 years may be enough.

Though I have no idea what her future plans are, I suspect she will wind up on a law school faculty. Chair Liebman has written some of the most important majority and dissenting opinions and she will be missed. Good Luck Chairperson Liebman.

Mitchell H. Rubinstein 

WORKER'S FAILURE TO STAY IN TOUCH DURING LEAVE LEADS TO JOB LOSS

 

An employee who failed to communicate with his employer during family leave or submit required paperwork regarding his absence could be considered to have abandoned his job and could be fired. Tautrim v. Echostar Satellite, No. G043717, 2011 WL 2001851 (Cal. Ct. App., 4th Dist., Div. 3 May 24, 2011).

California's 4th District Court of Appeal rejected the plaintiff's claim that he was fired in retaliation for exercising his rights under the California Family Rights Act, Cal. Gov't Code § 12945.1.

The decision was decided under state law law. Query whether the result would be the same under the FMLA. I suspect it would.

Mitchell H. Rubinstein

 

Stay Safe

To all of our readers who may be affect by Irene (including me), stay safe and remember this to shall pass.

Mitch

School Law Jobs

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Job Title	Employer	Job Location
School Attorney	Currier & Hudson	San Diego, California
Special Education Attorney	Harbottle Law Group	Orange County, California
Assistant General Counsel	Seattle Public Schools	Seattle, Washington

 

Supreme Court Justices Writing Style

Keep The Briefs Brief is an interesting May 20, 2011 article from the New York Times. It outlines some of the Justices writing styles and is worth a read.

Mitchell H. Rubinstein

Civil Service Law Section 75 Hearing Given Collateral Estoppel In Unemployment

Matter of Cheeseboro v. Commissioner of Labor, ___A.D.3d___(3d Dep't. May 19, 2011), is an interesting case. An employee's termination was upheld after a Civil Service Law Section 75 hearing. That finding was given collateral estoppel by the DOL in an unemployment case. As the court stated:

Here, it was [*2]established at the Civil Service Law § 75 hearing that claimant used vulgarity when speaking to a student, acted contrary to the employer's interest in encouraging the student to threaten another student and also failed to adhere to the employer's rules by allowing the student to use a cell phone. Inasmuch as claimant had a full and fair opportunity to litigate the issue of her misconduct at the Civil Service Law § 75 hearing, the Board properly accorded collateral estoppel effect to the factual findings made as a result thereof (see Matter of Davis [Commissioner of Labor], 64 AD3d 1057, 1057-1058 [2009], lv denied 14 NY3d 703 [2009]; Matter of Obafemi [Commissioner of Labor], 250 AD2d 905, 905 [1998]). Consequently, substantial evidence supports the Board's decision.

Mitchell H. Rubinstein

2d Circuit Holds Dues Checkoff Survives CBA Expiration and Is Subject To Arbitration

Newspaper Guild v. Hearst Corp., ___F.3d___ (2d Cir. May 17, 2011), is an important decision. As most readers will recognize, unions depend upon union dues to operate. But what happens when a CBA expires? Does a dues checkoff provision remain valid? According to the Second Circuit, it depends. 

Interestingly, the 2d Circuit rejected the notion that a dues checkoff provision was a type of accurred or vest benefit. Instead, the court focused on the language of the dues check off provision in the CBA. If it can be read as still applying during the contractual hiatus, then the matter is subject to arbitration. An arbitrator would ultimately have to determine if the CBA was in fact violated by the suspension of dues check off.

Mitchell H. Rubinstein

California Law Firm's Use Of Associate To Defend Itself Is The Same As Self Representation

 A law firm litigant that was successful on appeal is not entitled to recover statutory “prevailing party” attorney fees because its own associate represented it in the appeal. 

Carpenter & Zuckerman et al. v. Cohen et al., No. B215544, 2011 WL 1759152 (Cal. Ct. App., 2d Dist., Div. 5 May 10, 2011).

Saying the use of an associate was equivalent to self-representation, the 2nd District Court of Appeal held that the fee request fell within case law that precludes law firms that represent themselves from recovering attorney fees for their own representation.

This case was based upon California law and I am not sure that if it would have much application outside of California.

Mitchell H. Rubinstein

 

Employee terminated for making false statements in his application for employment

 

Tezeno v City of Watertown Municipal Civil Service Commission, 37 AD3d 1122

The City of Watertown Municipal Civil Service Commission, after finding that Elijah Tezeno, a City of Watertown Firefighter, had “intentionally made false statements of material fact in his applications” for employment, removed him from his position with the City.

The Appellate Division sustained the Commission’s action, commenting that:

The false statement made in petitioner's firefighter application alone constitutes a violation of Civil Service Law §50(4)(f); and

The penalty of termination is not so disproportionate to the offense as to be shocking to one's sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/disqualification-for-making-false.html

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

 

Virtual Law Offices

The September 2011 NYS Bar Journal ran a series of articles on virtual law offices. (sorry, no link available yet). There are actually several firms doing this and a business has been set up to help these firms establish their virtual office. The idea is that these firms establish a client portal where they can interact with clients. While I have never actually particpated in this, it appears to be a type of document exchange and chat process. 

For certain types of non-litigation practices, I can see that there is a place for this type of firm. It certainly is a major step about businesses which sell legal forms, but do not practice law. As some of the articles point out, there are ethical issues that must be considered as well as unauthorized practice of law issues if your client is from a jurisdiction that your not admitted in.

It seems to me that while a pure virtual office may be extreme, many full service firms may develop such a portal to handle simple document exhanges such as wills, power of attorney forms, incorporation and name changes. Of course, all of that can also be done via a legal form, but many non-attorneys may still need help.

Mitchell H. Rubinstein 

Compelling an employee to answer work-related questions

 

Compelling an employee to answer work-related questions has been considered by New York and Federal courts in a number of cases. Below are listed some of the holdings by courts concerning some basic “Fifth Amendment considerations” in the context of administrative disciplinary action:

1. Forcing an employee to answer work-connected questions or be terminated from his or her position generally precludes criminal prosecution based on those answers. Testimony obtained under threat of the loss of public employment provides the employee with limited immunity in criminal prosecutions based on the individual’s responses to such inquiries.* Essentially testimony provided under threat of loss of the individual’s public employment may not be used as a basis for, or in, subsequent criminal prosecution involving that individual. [Lefkowitz v Turley, 414 US 70]. The Court of Appeals addressed this issue in People v Corrigan, 80 NY2d 326. The Court of Appeals said that under both state and federal law any statement made under the threat of dismissal is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.” The court said that the immunity that attaches to any statement that a public worker gives under compulsion bars the use of the statement itself, as well as any evidence derived directly or indirectly from it, in any criminal prosecution.

2. The several decisions in Mountain v Schenectady [474 NY2d 612; 453 NY2d 93 and 428 NY2d 772] focus on the impact of an employee’s refusal to waive his or her immunity from prosecution and suffers the loss of his or her public office as a result of such refusal. The Mountain rulings focused on the relationships between a refusal to waive immunity from prosecution and the loss of public office.**

3. Where an employee is entitled to immunity with respect to the employee’s admissions or statements made in the course of a disciplinary investigation because it had been compelled under threat of termination, “that immunity would dissolve in the face of false allegations being filed.” [Seabrook v Johnston, 660 NY2d 311, United States v Apfelbaum, 445 U.S. 115]. In other words, transactional or use immunity does not permit the individual to lie.

4. The U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct. Although only federal employees were involved, the ruling may influence cases involving state and local employees. As to a "Fifth Amendment" defense in such cases, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator's questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.

5. The Supreme Court, in an opinion by Chief Justice William H. Rehnquist, held that in the event employees remain silent in the course of a disciplinary action, citing the Fifth Amendment or some other reason, the appointing authority is free to consider such silence and draw adverse inferences in making its determination in a disciplinary action.

6. An appointing authority may experience a situation in which an attempt to discipline an employee appears frustrated because the employee claims that he or she has been granted immunity in connection with a criminal proceeding. According to the Appellate Division, administrative disciplinary action may proceed notwithstanding the claimed immunity (Greco v Board of Nursing Home Examiners, 91 AD2d 1108). In Greco, a Special Prosecutor granted Greco “transactional immunity from prosecution” in connection with a criminal matter in exchange for his cooperation. The Nursing Home Examiners subsequently revoked Greco’s nursing home administrator’s license. The Appellate Division, in a split decision, rejected Greco’s argument that his immunity barred revocation of his license. The court ruled, “a prosecutor cannot divest an independent body of its lawful discretion by promising broad immunity.” This is consistent with the view that an administrative disciplinary action based on the same events that may have resulted in a criminal prosecution is not “double jeopardy.” Had the board been a party to the granting of immunity, however, it would have been bound by the agreement.

7. Statements made by an employee to the police during an investigation of criminal charges filed against the employee constitutes “competent evidence” and may be admitted into evidence during the administrative disciplinary hearing (Dacey v County of Dutchess, 121 AD2d 536). In contrast, where the administrative disciplinary action precedes criminal action, in the event the appointing authority threatens to terminate or take other adverse action against an employee if he or she does not answer work-related questions, the employee’s answers to those questions are automatically shielded from use in a subsequent criminal prosecution under the doctrine of “transactional immunity” or “use immunity.”

8. Witnesses who may have participated in wrongdoing are not automatically granted transactional or use immunity by virtue of their testimony in an administrative procedure. Further, an administrative tribunal cannot bind the district attorney by a promise of immunity from criminal prosecution in exchange for the individual’s testimony as a witness at an administrative hearing. By the same token, the district attorney cannot bind an administrative tribunal with respect to its exercising its lawful authority. If immunity is a consideration, the witness must be granted such immunity by the appropriate authority in order for it to be effective and binding on that authority.

Responding to the following inquiry:

May a police officer be compelled to answer questions posed by a department's internal affairs division concerning on-duty and off-duty activities that directly involve their abilities to “carry out the public trust?” the Attorney General advised that:

In Matt v LaRocca, 71 NY2d 154, the Court of Appeals said that the State “may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence.”

In addition, the Attorney General noted that the United States Supreme Court in Garner v Broderick, 392 US 273, held that if an public officer or employee refuses to answer questions specifically, directly and narrowly related to the performance of his official duties and is not required to waive immunity with respect to the answers in a criminal prosecution, the constitutional privilege against self-incrimination would not bar termination for such refusal to answer.

On the issue of “off-duty” conduct, however, the Attorney General said that there is no explicit statement in case law to the effect that a public officer or employee may be compelled to answer questions concerning such activities. The opinion then indicated that “presumably some off-duty activities are relevant to an employee's performance of his public trust ... a factual determination that must be made on a case-by-case basis.”

The Attorney General concluded that an “internal affairs division [of a law enforcement agency] may compel officers to answer questions directly relating to their official duties, assuming that no waiver of immunity is required,” suggesting that “it would be wise to coordinate the department's investigation of such persons with the district attorney's office.” [Informal Opinion of the Attorney General 93-12].

* Such limited immunity is usually referred to as “transactional immunity” or as “use immunity.”

** Mountain, a police officer, refused to waive such immunity when called before a Grand Jury. He was dismissed following a Civil Service Section 75 disciplinary hearing for refusing to so waive immunity. The appointing authority relied on Article I Section 6 of the State Constitution which provides that a public officer if called to testify before a Grand Jury concerning the performance of official duties shall be removed from office if he or she refuses to sign a waiver of immunity. The Court concluded that demanding such a waiver violated Mountain's constitutional protection against self-incrimination. While a public officer may be removed for failing to answer questions relevant to the performance of official duties, he or she may not be dismissed for failing to waive immunity. It appears that had Mountain simply been asked relevant questions concerning his performance of his official duties, without any demand for a waiver of immunity, his dismissal for refusing to answer such questions would have been lawful.

 

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

School Law Jobs

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Job Title	Employer	Job Location
Education Litigation Associate	Fagen Friedman & Fulfrost LLP	Southern California
School Attorney	Currier & Hudson	San Diego, California
School Board Attorney	Chesterfield County Public Schools	Chesterfield, Virginia
Assistant General Counsel	Seattle Public Schools	Seattle, Washington

 

The court’s fact-review power of an administrative agency's determination is limited to whether substantial evidence supports the determination

 

Matter of Jenkins v Israel, 2011 NY Slip Op 03604, Appellate Division, Second Department

The Westchester Medical Center filed disciplinary charges against Lisa Jenkins alleging insubordination and misconduct pursuant to §75 of the Civil Service Law. The disciplinary hearing officer found Jenkins guilty of the charges and Westchester adopted the hearing officer’s findings. It then imposed the penalty of dismissal and terminated her employment as a nursing aide.

In response to Jenkin’s appeal challenging her termination, the Appellate Division said that its fact-review powers of an administrative agency determination “are limited to whether substantial evidence supports the determination"

In this instance the court found that there was substantial evidence in the record to support a finding that Jenkins committed insubordination and misconduct.

Further, said the Appellate Division, “we cannot conclude that the penalty of dismissal imposed by the hospital was ‘so disproportionate to the offense as to be shocking to one's sense of fairness’ so as to constitute an abuse of discretion as a matter of law,” citing Matter of Kelly v Safir, 96 NY2d at 32.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03604.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

 

A Law School Law Firm??? Yeah Right!!!

What if law schools opened their own law firms? is an interesting August 17, 2011 National Law Journal article. It reports on a law review article where two professors speculate about   law firms operated by law schools. The article also argues that traditional law school should be two in class years with the third year spend operating as a student attorney for this law school law firm.

What I find most significant is that the professors recognize that this law school law firm would have to be staffed by attorneys-not by the professors. The major problem with law school professors today is that many, if not most of them, are simply incapable of practicing law and many never had. But, this is what we have, for the most part, training the lawyers of the future.

Now, I suppose that the law schools will respond by stating that is what us adjuncts are for. Really; law schools should rely on the lowest paid members of the staff who have no say about admissions or curriculum or running the school. But, that is exactly what most law schools today do. 

What a system. I hope it changes, but I do not see any evidence of that in that virtually every law school is looking for the newly minted ivy P.hd. who also has a ivy law degree and may have done a federal clerkship for a year or two. 

Mitchell H. Rubinstein 

 

Arbitrator Impartiality

Arbitrator Impartiality and the Duty to Disclose is an interesting April 28, 2011 New York Law Journal article (registration required). The article discusses some recent commercial and labor cases which were vacated because the arbitrator failed to make a required disclosure. The article also discusses the lower court decisions in U.S. Electronics v. Sirius Satellite Radio which is pending before the NYS Court of Appeals. In that case, the son of a sitting Congressman was the arbitrator. The Congressman made statements about issues relevant to the arbitration, but the son was unaware of them. The First Department refused to vacate the decision, but did note that it is "incumbent upon an arbitrator to disclose any relationship which raises even a suggestion of possible bias."

Stay Tuned.

Mitchell H. Rubinstein

Applying the Doctrine of Absolute Privilege

 

Van Donsel v Schrader, 2011 NY Slip Op 03698, Appellate Division, Third Department

Richard Van Donsel, the then Cortland County Attorney, sued Scott Schrader, the then Cortland County Administrator, alleging causes of action for defamation and intentional infliction of emotional distress.

The genesis of this action was characterized by the Appellate Division as “part of an ill-fated plan to construct a County facility.” The County contracted to acquire real property owned by one Steven Lissberger. The County then reneged on the contract and Lissberger sought damages. Subsequently Lissberger sold the parcel to a third party, and was represented in that sale by Ronald Walsh. Walsh, at the time, was also serving as an Assistant County Attorney.

Van Donsel negotiated a settlement of the Lissberger claim. Schrader conducted a pre-audit of the proposed settlement and recommended its rejection in a memorandum to the relevant Cortland County legislative committee. In the words of the Appellate Division, “Noting Lissberger's sale of the property for only $500 less than the price set out in his contract with the County and Walsh's connections with [Van Donsel] — points that [Von Donsel] had neglected to disclose in requesting approval of the settlement — [Schrader] further recommended that [Van Donsel’s] office be investigated 'for a possible criminal conspiracy and unethical behavior.'"

The Appellate Division held that Schrader’s statements to the legislative committee were protected by an absolute privilege and thus Schrader's motion for summary judgment should have been granted. by Supreme Court.

The Appellate Division explained that "A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable," citing Park Knoll Assoc. v Schmidt, 59 NY2d 205. Further, said the court, “As a matter of public policy, an absolute privilege protects ‘communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings,'” citing Rosenberg v MetLife, Inc., 8 NY3d 359.

The comments objected to, however, must have been made in the context of official communications by "a principal executive of State or local government [or] those entrusted by law with considerable administrative or executive policy-making responsibilities." In contrast, merely participating in such proceedings is insufficient to trigger the privilege.

There is little question, said the court, that Schrader, the County's chief administrative officer and executive, constituted a high official to whom the absolute privilege doctrine applies. Further, the Appellate Division noted that both Schrader's memorandum and the statements therein were prepared in furtherance of his official duties, which included reviewing claims submitted for payment by the County, supervising its department heads, and making appropriate recommendations to the County Legislature.

Van Donsel did not dispute that public disclosure of Schrader’s memorandum was "required by law" but, said the court, contrary to Van Donsel's argument, the fact that it received attention in the news media did not remove Schrader's comments from falling within the ambit of the privilege.

While the Appellate Division noted that a claim for intentional infliction of emotional distress “is not flatly barred by absolute privilege,” it said that Van Donsel “failed to raise a [question] of fact as to whether [Schrader's] conduct was so extreme, outrageous, and beyond the bounds of human decency as to constitute" that tort. 

* See, also, a summary addressing the Doctrine of Qualified Immunity posted on the Internet at:http://publicpersonnellaw.blogspot.com/2011/05/qualified-immunity-from-civil-lawsuits.html 

The decision is ported on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03698.htm 

See, also, Leonard v Schrader, 2011 NY Slip Op 03699, decided with this action and posted on the Internet athttp://www.courts.state.ny.us/reporter/3dseries/2011/2011_03699.htm In Leonard Supreme Court held “the defenses of absolute and qualified privilege in abeyance.” The Appellate Division ruled that “for the reasons stated in Van Donsel v Schrader (supra), we agree with Schrader that he is entitled to summary judgment dismissing the complaint.”

 

Reprinted  by permission New York Public Personnel Law

Mitchell H. Rubinstein

Movie Review-The Help

A friend of this blog, Jim Castagnera who is a professor at Rider University and Associate Provost, and who edits Castagnera's Law, Education and Employment Watch blog, just wrote an interesting movie review of "The Help," available here. If any of you are thinking of seeing this movie about Jim Crow laws in the 1960's you will find Jim's review of interest. Jim is also the author of several books, including Al-Quaeda Goes To College, which I previously reviewed here.

Mitchell H. Rubinstein