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Editor: Mitchell H. Rubinstein
New York Law School

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Tuesday, April 8, 2014

NY Court of Appeals Issues Major Duty of Fair Representation Decision

Palladino v. CNY Centro, ___N.Y.3d___(April 8, 2014), is a major decision.  In a 5-2 decision the New York Court of Appeals affirms the dismissal of a duty of fair representation case brought against a labor union that refused to take a discharge case to arbitration. Why, because each and every member of the union did not ratify the decision. 

In so holding, the Court re-affirmed Martin v. Curran, 303 N.Y. 276 (1951) and quoted my article, Union Immunity from Suit in New York, 2 NYU J. L. & Bus. 641, 649 (2006).  The Court correctly reasoned that NY still follows the common law which does not consider unincorporated associations to be juristic entities. Liability remains with the individual union members.

The Court noted the critisim that the Martin rule has received and the fact that it is virtually impossible for any labor union in New York to have common law liability.

The Court, however, noted that Plaintiff could have filed a DFR improper practice under the Taylor Law. 

It is feels good to be cited by the Court of Appeals.

Mitchell H. Rubinstein

 

April 8, 2014 in Duty of Fair Representation, New York Law, Public Sector Employment Law, Public Sector Labor Law, Unions | Permalink | Comments (0)

Friday, January 3, 2014

State Comptroller is required to correct any errors affecting a retiree's benefits upon the discovery of the error

2013 NY Slip Op 07238, Appellate Division, Third Department
 
A police officer [Officer] submitted an application for disability retirement benefits. While his application was pending, Officer’s employer filed disciplinary charges against him and, on November 19, 2007, he was terminated by the employer.
 
Officer’s application for disability retirement benefits was approved on August 12, 2008 and his effective retirement date was set as November 17, 2007, the date of Officer's last day on the employer’s payroll as reported by the employer.
 
However, after receiving additional information from the employer indicating that Officer had, in fact, remained on the employer’s payroll through November 19, 2007, the Retirement System adjusted Officer’s retirement date to November 20, 2007. 
 
Following an unsuccessful administrative appeal seeking to reinstate November 17, 2007 as the effective date of his retirement for disability, Officer filed an Article 78 petition seeking a court order vacating the Comptroller’s determination.
 
The Appellate Division affirmed the administrative determination noting that Comptroller “is vested with the exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld.”  Citing 2 NYCRR 309.6, the court said that the effective date of a member's disability retirement is either [1] "on the date of filing of such disability retirement application" or [2] "on the day after the last date on which the member receives salary, whichever is later."
 
As the Comptroller is required to correct any changes or errors affecting a retiree's benefits upon discovery thereof, notwithstanding Officer's claim that his effective retirement date was changed as a result of actions taken by the employer in retaliation for a civil rights claim that he had asserted against it, the Appellate Division held that the Comptroller is entitled to rely upon the payroll information provided by the employer.
 
As the record reflected Officer's termination date from the payroll as November 19, 2007, the Comptroller’s determination was held to be supported by substantial evidence and Appellate Division said that it found no basis to disturb it.
 
The decision is posted on the Internet at:
 
Reprinted by permission New York Public Personnel Law
 
Mitchell H. Rubinstein

January 3, 2014 in New York Law, Public Sector Employment Law | Permalink | Comments (0)

Tuesday, November 12, 2013

Off-duty misconduct

2013 NY Slip Op 06085, Appellate Division, First Department
The Appellate Division unanimously affirmed NYC Police Commissioner Raymond Kelly’s dismissal of a police officer found guilty of discharging his weapon “in the direction of his former girlfriend during an altercation” while off-duty. The court said that there was substantial evidence to support the Commissioner’s finding.
In addition, the Appellate Division noted that the officer was also found guilty of the charges that he was “out of residence while on sick report” and provided false information concerning his absence based on his guilty plea to the allegations.
The police officer’s argument that the hearing officer “improperly placed the burden of proof on him” was rejected by the court as the record indicated that Department satisfied its burden of proving that the officer had committed the acts charged and the hearing officer determined that the officer’s testimony did not rebut the Department’s evidence. 
Citing Featherstone v Franco, 95 NY2d 550, the court said that the penalty of termination did not shock its sense of fairness.
The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06085.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

 

November 12, 2013 in Arbitration Law, Public Sector Employment Law | Permalink | Comments (0)

Thursday, October 3, 2013

Court Overturns Firing for Drinking a Beer and Shot

A city employee fired for drinking a beer and a shot during his lunch break on Christmas Eve 2009 won his Article 78 proceeding. Quite simply, the penalty  was too harsh. The case is Application of Peterson v. City of Poughkeepsie, 3428/13, (August 13, 2013).

Read more: http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202615853449&Court_Overturns_Firing_for_Drinking_a_Beer_and_Shot#ixzz2dC5ZQgzN

MITCHELL H. RUBINSTEIN

 

October 3, 2013 in Arbitration Law, Public Sector Employment Law | Permalink | Comments (0)

Thursday, June 27, 2013

Employee terminated following a disciplinary hearing after receiving counseling memoranda regarding serious and specific deficiencies in her job performance

Kuznia v Adams2013 NY Slip Op 03369, Appellate Division, Third Department
An individual [Petitioner] commenced her employment with the County Probation Department in 1979 and in 2004 was named as the Department's deputy director. When the Department’s director retired, Petitioner “effectively was in charge of the Department” until a new director was named in August 2010.

Although prior to serving as the Department's deputy director Petitioner had consistently received positive performance evaluations,* in March 2010 the County Administrator sent Petitioner a "letter of counseling" raising a number of concerns regarding her leadership, supervisory and time-management skills. Petitioner was encouraged to "immediately make every effort to improve [her] management skills" and was warned that her failure to do so could result in a loss of her employment.
In October 2010, Petitioner received a second counseling notification — this time in the form of a memorandum from the newly appointed director. The director noted, among other things, Petitioner's  failure to timely submit various state-mandated reports and surveys to the Department's oversight agency.
Subsequently it was found that there were significant past deficiencies and omissions in the operation of the Department during Petitioner's tenure as deputy director and  was served with disciplinary charges in March 2011 pursuant to Civil Service Law §75 alleging various acts of misconduct. The Hearing Officer sustained the bulk of the charges and specifications filed against Petitioner and recommended Petitioner's "dismissal from service [as] the only viable solution."

The County Administrator adopted the Hearing Officer's findings and recommendation and terminated Petitioner’s employment. Petitioner appealed, challenging the County Administrator’s decision and asked the court to direct her reinstatement as deputy director of the Department with back pay.
The Appellate Division affirmed the County Administrator’s determination, explaining that "[T]he standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole.”
The Appellate Division noted that [1] Credibility determinations solely within the province of the Hearing Officer and that it may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented and [2] a finding of incompetence only requires evidence of some dereliction or neglect of duty.
As to the issue of penalty, the Appellate Division said that it was “well settled” that it would set aside the penalty imposed "only if it is so disproportionate as to be shocking to one's sense of fairness."
Despite the Appellate Division's considering Petitioner's many years of service and her prior positive performance evaluations, the court said that it did not find the penalty of termination to be shocking to its sense of fairness, explaining that in this instance “the record reflects that although Petitioner twice was warned regarding serious and specific deficiencies in her job performance, she continued to exercise poor professional judgment with respect to, among other things, the management, training and supervision of [Department personnel].
Further said the court, “The record … illustrates that Petitioner's neglect of her duties — particularly with respect to her failure to implement certain policies and/or comply with mandated reporting requirements — not only created what [Department’s director] aptly described as ‘a huge public safety issue,’ but also exposed the County to liability.” 

* According to the decision, written performance evaluations of the Petitioner ceased after 2004 because the then County Administrator “preferred to personally conduct yearly evaluations in his office.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03369.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 27, 2013 in Arbitration Law, Public Sector Employment Law | Permalink | Comments (0)

Tuesday, June 18, 2013

An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment

2013 NY Slip Op 03230, Appellate Division, Fourth Department
The City of Niagara Falls’ Local Law No. 7 requires City employees to establish and maintain residency within the City throughout the term of their employment. "Residency" for the purposes of this action was defined as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any."*
The City determined that one of its employees [Petitioner] principally resided outside the City in the Town of Niagara. Concluding that Petitioner did not comply with its residency policy, the City terminated her employment.
Petitioner challenged the City’s decision. Supreme Court granted her petition and directed the City to reinstate her to her former position. The Appellate Division disagreed with the Supreme Court’s ruling and vacated its decision.
The Appellate Division found that the evidence relied upon by the City was sufficient to establish that Petitioner's "actual principal place of residence" was in the Town of Niagara [Niagara] and thus outside the city limits of the City of Niagara Falls.
The evidence presented to the City included an investigative report indicating that Petitioner resided at the Niagara residence, the address of the Niagara residence was listed on Petitioner's joint tax return with her husband, Petitioner's signature appeared on a recent mortgage application for the Niagara residence, Petitioner's husband and children resided at the Niagara residence and Petitioner’s children attend school in the Niagara-Wheatfield School District.
In addition, said the Appellate Division, “a surveillance company observed Petitioner on multiple occasions driving to work from the Niagara residence early in the morning and driving from work to the Niagara residence at the end of the work day, "whereupon she would retrieve the mail and park in the garage."
Petitioner had testified that she resided at a City address and that the City address was listed on various documents, including her voter registration records and her driver's license. Notwithstanding such testimony, the Appellate Division concluded that such "evidence was not so overwhelming as to support the [Supreme] court's determination granting [her] petition."
Citing Beck-Nichols v Bianco, 20 N.Y.3d 540,** a case involving a school district employee’s failure to comply with the district’s residence requirement, the Appellate Division said that under the "extremely deferential standard" of review applicable in Petitioner’s case, it concluded that the City's determination that Petitioner principally resides outside the City is not “without foundation in fact,” and thus the City had "rationally concluded that [Petitioner] did not comply with the residency policy."
The court then reversed Supreme Court's decision "on the law" and the dismissed the City's former employee’s petition.
* The Appellate Division noted that this “definition [of residence] is akin to, if not synonymous with, the legal concept of ‘domicile,’ i.e., ‘living in [a] locality with intent to make it a fixed and permanent home.’”
** NYPPL’s summary of Beck-Nichols is posted on the Internet at:http://publicpersonnellaw.blogspot.com/2013/02/court-of-appeals-holds-that-residency.html
The City of Niagara Falls decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03230.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 18, 2013 in Public Sector Employment Law | Permalink | Comments (0)

Tuesday, March 12, 2013

An administrative determination made without a pre-determination hearing must have a "rational basis" and may not be "arbitrary and capricious”

The Court of Appeals decision in this case sets out the standard of review used by courts when considering appeals from administrative decisions made without first holding a hearing.

A fire lieutenant [Lieutenant] with the City of Long Beach Fire Department applied for accidental disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] §363-c. The State Comptroller granted Lieutenant’s application.
Lieutenant than sought supplemental disability retirement benefits from the City pursuant to General Municipal Law §207-a.
GML §207-a provides that an individual subject to its provisions receiving a retirement allowance as the result of disability incurred in performance of duty pursuant to §363-c of the RSSL, or similar accidental disability pension provided by the retirement system of which he or she is a member,  “shall continue to receive from the municipality or fire district by which he [or she] is employed, until such time as he [or she] shall have attained the mandatory service retirement age applicable to him [or her] or shall have attained the age or performed the period of service specified by applicable law for the termination of his [or her] service, the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages.”*
The Fire Commissioner denied Lieutenant’s request for a GML §207-a supplement without explanation, which determination was subsequently sustained by the City's Corporation Counsel. Lieutenant then filed an Article 78 proceeding challenging the City of Long Beach's decision.
Supreme Court annulled the City's determination and directed it to pay Lieutenant the GML §207-a supplemental benefit. The Appellate Division affirmed the Supreme Court’s ruling.
The Court of Appeals agreed with the Appellate Division’s ruling, explaining that in reviewing the City's determination, which was made without a hearing, the issue is whether the action taken by the administrative agency had a "rational basis" and was not "arbitrary and capricious." An action is arbitrary and capricious, said the court, if it is taken “without sound basis in reason or regard to the facts." In contrast, noted the court, if the administrative determination has a rational basis, it will be sustained, even if a different result would not be unreasonable.
According to the Court of Appeals’ decision the City's denial of the GML §207-a supplement was based on statements made by Lieutenant's estranged wife in the midst of a divorce and the Corporation Counsel's personal observations of Lieutenant.

As Lieutenant not given any notice of the allegations nor an opportunity to respond to them,** despite the substantial contrary record evidence, including medical findings, that led to the approval of Lieutenant's application for disability benefits by the State Employees’ Retirement System, the Court of Appeals said that it agreed with the Appellate Division’s conclusion that the City's justification for its denial of payment of the benefits to be provided in accordance with GML §207-a “lacks the requisite rational basis and was, therefore, arbitrary and capricious.”
N.B. This supplementation of a disability retirement benefit is unique to individuals within the ambit of GML §207-a. GML §207-c, which is applicable to law enforcement personnel disabled in the line of duty and who are subsequently granted an accidental disability or similar retirement benefit are not eligible to received a GML §207-a type “supplementation” to their disability related retirement allowance pursuant to GML §207-c except in certain situations such as the one considered by the court in Matter of the Arbitration between the City of Plattsburgh and Plattsburgh Police Officers, 250 AD2d 327.

** Although as a general rule the payment of the supplement authorized by GML §207-a is a function of the individual's receiving a disability retirement allowance, GML §207-a.6 provides for the forfeiture of the supplement under certain conditions. In view of this decision, prudence suggests that such forfeiture of the supplement pursuant to GML §207-a.6 should be effected only after notice and hearing.  
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

March 12, 2013 in Public Sector Employment Law | Permalink | Comments (0)

Monday, March 4, 2013

Employee found guilty of uploading confidential medical information viewed while at work on Facebook terminated

The Appellate Division affirmed the dismissal of an Emergency Medical Services Supervisor by the Commissioner of the New York City Fire Department for misconduct, ruling that the Commissioner’s determination that the Supervisor was guilty of violating departmental regulations was supported by substantial evidence.
The EMS Supervisor had admitted photographing a computer terminal’s screen showing confidential and privileged information received during a 911 call concerning a medical emergency, as well as the 911 caller's name, address and telephone number, and then uploading the image to his Facebook account, with the caption "[c]an't make this up."
The decision states that approximately 460 of the Supervior’s Facebook "friends" had access to the posting.
Further, said the Appellate Division, at the time of the posting the EMS Supervisor understood that divulging such patient information was in violation of departmental rules, as well as a serious breach of trust.
Considering the “serious nature” of the Supervisor’s misconduct, the court said that the penalty imposed, dismissal,  did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32 and  Berenhaus v Ward, 70 NY2d 436.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell Rubinstein

March 4, 2013 in Public Sector Employment Law | Permalink | Comments (0)

Tuesday, January 22, 2013

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

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

January 22, 2013 in Public Sector Employment Law | Permalink | Comments (2)

Tuesday, January 15, 2013

Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial evidence

Szczepaniak v City of Rochester2012 NY Slip Op 08896, Appellate Division, Fourth Department
The City of Rochester determined that one of its employees was guilty of the disciplinary charges filed against him and terminating him from his employment. Supreme court dismissed the individual's Article 78 petition challenging his dismissal and the Appellate Division affirmed the lower court’s ruling.
One of the arguments advanced by the individual in his petition was that “the determination is not supported by substantial evidence because the evidence presented was hearsay.“*
The Appellate Division, noting that the hearsay evidence admitted at the administrative hearing consisted of attendance records about individual’s outside employment, ruled that the evidence was relevant and probative on the charges that the individual had worked at that outside employment while he was on sick leave, or other leave from his employment with the City, and receiving certain benefits.
The court explained that hearsay is admissible in administrative proceedings "and if sufficiently relevant and probative may constitute substantial evidence." Accordingly, said the Appellate Division, there is no merit to the individual's contention that the determination is not supported by substantial evidence because the evidence presented was hearsay.
Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that it found that the appointing authorities determination as to the employees guilt was “supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."
As to the penalty imposed, dismissal, the court said that it concluded that “the penalty of termination from petitioner's employment is not ‘so disproportionate to the offense[s] as to be shocking to one's sense of fairness,’ and thus does not constitute an abuse of discretion as a matter of law,” citing Kelly v Safir, 96 NY2d 32.
* Essentially hearsay evidence is testimony given by an individual who testifies about what he or she has heard from others rather than testifies about that which he or she personally heard, knows or observed concerning a conversation, an event or a situation.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

January 15, 2013 in Public Sector Employment Law | Permalink | Comments (1)

Sunday, November 11, 2012

A letter placed in an employee file indicating “serious misconduct” that could negatively impact his or her eligibility for future promotion goes beyond “constructive criticism

D'Angelo v Scoppetta, 2012 NY Slip Op 06989, Court of Appeals
May a letter from the Assistant Commissioner of the Fire Department of the City of New York (Department) to a firefighter advising him that he violated the Department's Code of Conduct and Equal Employment Opportunity (EEO) Policy could adversely affect his eligibility for promotion in the future be made part of firefighter's permanent “EEO file” without first providing him an opportunity for a hearing pursuant to §15-113 of the Administrative Code of the City of New York?
Supreme Court had concluded that "the letter [was] a disciplinary reprimand and not a critical evaluation" and, therefore, the firefighter had the right to a formal hearing and other due process safeguards. * The Appellate Division agreed with the lower court’s ruling.
The Court of Appeal affirmed the lower courts’ rulings, holding that the firefighter was entitled to a due process hearing before the Department may place such a letter in his permanent file.
The Department conceded that the Administrative Code §15-113 required a hearing before its employees could be subject to punishment by reprimand but contended that a hearing was not necessary in this instance because the letter it placed in firefighter's permanent EEO file was not a formal reprimand but merely a critical evaluation not subject to the same due process protections. The Court of Appeals, as did the lower courts, disagreed.
Citing Holt v Board of Educ. of Webutuck Cent. School Dist. (52 NY2d 625, the Court of Appeals contrasted the Department’s action with school administrators placing letters in the permanent files of teachers critical of their performance without conducting §3020-a disciplinary hearings.
In one instance, the teacher was admonished for failing to maintain an orderly classroom after he had been directed to do so and for interrupting the class of another teacher. The letters characterized the teacher as incompetent and insubordinate. A second teacher had been sent a letter warning him that his regular absences from his assigned duties violated school policy. The court said it had concluded these letters did not trigger the due process protections of Education Law §3020-a because they were simply "critical evaluations" and not "formal reprimand[s]."
Although the letters sent to the teachers were "sharply critical," the Court of Appeals said that the fundamental purpose of the communications was not to punish but to identify "a relatively minor breach of school policy and to encourage compliance with that policy in the future."
The facts in the firefighter’s case, said the court, “are readily distinguishable from the facts in Holt.” 
While the teachers had received a letter from an immediate supervisor criticizing their performance, the firefighter was the subject of a formal investigation conducted by the Department's EEO office over a two-year period in response to the complaint alleging that he had used “racially offensive language” that had involved the interviewing of several “eyewitnesses” as well as the firefighter.
Significantly, the court noted that ultimately the EEO office determined that the evidence it had collected substantiated the complaint and it supplied a detailed report to the Assistant Commissioner. The Assistant Commissioner then reviewed the EEO office's findings and then “conferred with the Commissioner himself who ultimately approved the EEO office's determination.” This said the court “stands in contrast to the letters in Holt, which only reflect the views of a particular supervisor.”
Further, said the court, the letter to the firefighter noted that the document "serve[d] as a formal Notice of Disposition of the filed Complaint" and “in no uncertain terms,” informed the firefighter that “a thorough investigation revealed that he ‘exercised unprofessional conduct’ and ‘made an offensive racial statement’ [and] as a consequence of his misconduct, he was required to review and sign an EEO Advisory Memorandum and participate in further EEO training.”
The Court of Appeals said that it agreed with the firefighter that “the requirement to participate in additional EEO training is a form of discipline and not, as the Department contends, mere encouragement to comply with EEO policy.”
In addition, the decision notes that the Department conceded at oral argument that the EEO's finding that [the firefighter] was in breach of its racial discrimination policy is serious misconduct that could negatively impact his eligibility for future promotion.
Concluding that the letter sent to the firefighter constituted a “formal reprimand under Administrative Code §15-11,” the court ruled that the Department had denied the firefighter his right to administrative due process by placing the letter in his file without first conducting a hearing. Affirming the Appellate Division’s ruling, Justice Smith dissenting, the majority of the court ruled that the letter to which the firefighter had objected was properly expunged from his permanent EEO file.
* Supreme Court noted that it could not order a hearing because, as the parties conceded, the applicable statute of limitations for conducting such a hearing had expired.

COMMENT: As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work constitutes a lawful means of instructing the employee. 

In Matter of Fusco, Comm. of Ed. Decision 14,396 and Matter of Irving, Comm. of Ed. Decision 14,373, the Commissioner of Education found that the alleged "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance. 

In Fusco’s case, the Commissioner said that “contents of the [counseling] memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was "intended to encourage positive change" in Fusco’s performance. The Commissioner noted that the memorandum "'contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .
The D'Angelo decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

November 11, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Sunday, October 28, 2012

Vacating a finding of being guilty of two of five disciplinary charges requires remanding the matter for reconsideration of the appropriate penalty to be imposed

The appointing authority adopted the findings and recommendation of a hearing officer that the employee was guilty of five charges of misconduct and terminated the individual’s employment.
Supreme Court dismissed the former employee’s petition challenging the appointing authority’s action.
The Appellate Division disagreed with this result, explaining that upon its review of the record it found that  the hearing officer's finding the individual guilty of two of the five charges had to be annulled and those two charges dismissed. In the opinion of the court, there was a lack of substantial evidence to support a finding that the employee was guilty of these two charges.
As the appointing authority had imposed a penalty based on the hearing officer’s finding that the individual was guilty of all five charges, the court said that the penalty imposed had to be vacated and the matter remit to the appointing authority to permit it to consider the appropriate penalty to be imposed upon the individual based on the individual having been found guilty of the three surviving charges
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

October 28, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Wednesday, October 24, 2012

Proving Disciplinary Charges

An employee was found guilty of some of the thirty specifications of misconduct and incompetence filed against her. The hearing officer found the employee guilty of seventeen of these thirty specifications and recommended that she be dismissed from her position.
Specifications of misconduct and incompetence filed against the employee included allegations of excessive lateness, failure to properly carry out assigned duties, and actions in contradiction of established employer procedure. The hearing officer's findings and recommendations were adopted by the appointing authority and the individual was dismissed from her position. In sustaining the determination, the Appellate Division, Third Department noted that: the findings of a Hearing Examiner will be confirmed if they are supported by substantial evidence in the record even where conflicting evidence may have supported a different determination.
What constitutes "substantial evidence" is the significant issue in such cases. The decision illustrates some of the factors that courts weigh in determining whether there is substantial evidence to support the findings of the hearing officer.
The hearing officer found the employee guilty of seven of the 12 specifications concerning her alleged failure to perform assigned clerical tasks properly. The court, however, concluded that "only six of the seven specifications should be confirmed based upon the testimony proffered by petitioner's supervisor." Why? Because, explained the court, testimony that employee had typed the incorrect labels because the witness recognized the font from the individual’s typewriter was insufficient as there was testimony establishing that there were several typewriters in that office using that particular font. As the witness could not testify that she witnessed the employee preparing these folders and the employee denied that the error was hers, the court said it could not conclude that there was sufficient evidence to support this allegation.
The hearing officer also found the employee guilty of six of thirteen specifications alleging that she improperly performing her duties by exceeding her authority or violating the employer’s policy. In this instance the court held that the record supported the hearing officer's findings, noting that the employee was advised of these problems in her performance in various performance evaluation, together with the need for her to improve in these areas.
With respect to disciplinary specifications focusing on the employee's use of the workplace to conduct personal business and engage in lengthy personal telephone calls, the Appellate Division ruled that the testimony of her superiors, confirmed by a co-worker, was sufficient to prove the allegations.
The court also said that it did not find any error in the hearing officer finding the employee guilty of 36 of the 48 allegations that she had arrived late for work on specified dates. These allegations, said the court, were supported either by the employee's time sheets or by testimony from her superior or co-workers.
The Appellate Division remanded the matter to the employer for its consideration of the appropriate penalty to be imposed in view of its finding the employee not guilty of certain charges and specifications. The court also said that it noted that the employee had been given numerous oral admonitions and counseling memoranda warning her of "further disciplinary action," but held that such actions did not constitute "punishment" such that the present disciplinary proceeding could be deemed duplicative.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

October 24, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Sunday, October 21, 2012

School district may be held liable for the negligent hiring and retention of its employees

In an action alleging that a school employee sexually abused a student, Supreme Court denied the school’s and the school district’s motions for summary judgment dismissing the complaint.
The Appellate Division affirmed the lower court’s ruling, explaining that::
1. The school and the school district failed to make a prima facieshowing that they were not negligent with respect to the hiring and retention of the school district employee who allegedly sexually abused the student; and
2. The school and the school district failed “to establish, prima facie, that they discharged their duty to provide adequate supervision of the infant plaintiff.”
The Appellate Division noted that although “an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,’ the employer may be held liable for the negligent hiring and retention of the employee.”
Further, said the court, “a school district has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” citing Mirand v City of New York84 NY2d 44
The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06289.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

 

October 21, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Saturday, October 13, 2012

Statute of limitations for challenging a personnel decision begins running when the individual is notified of the “determination” becomes final and binding

McCarry v Purchase Coll., State Univ. of N.Y., 2012 NY Slip Op 06026, Appellate Division, Second Department 
In a proceeding pursuant to CPLR Article 78 challenging the decision of the President of the State University of New York College at Purchase not to reappoint an assistant professor to the Purchase faculty, Supreme Court annulled the President’s determination and remitted the matter to for a de novo review and a new determination. Supreme Court also directed the retroactive reinstatement of the faculty member with full compensation and benefits pending the de novo review.
The Appellate Division reversed the lower court’s rulings “on the law."
Pointing out that the assistant professor’s challenge to the President’s decision was time-barred by the four-month statute of limitations, the court explained that the statute of limitations set forth in CPLR §217(1) began to run on the date that the challenged determination became final and binding.*
Citing Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62, the Appellate Division said that "A determination generally becomes binding when … the agency has reached a definitive position that inflicts concrete injury to the aggrieved party that cannot be prevented or significantly ameliorated by further administrative action” and the individual has been advised of that determination.
In this instance it was undisputed that the assistant professor commenced his Article 78 action more than four months after receiving notice that he had not been reappointed to his teaching position.
Significantly, the court said that the limitations period did not run from the date upon which the assistant professor's fixed-duration employment contract automatically ended but rather commenced to run when he received notice of the “final determination” that he would not be reappointed to the college faculty.
Further, said the court, even had the faculty member Article 78 action “been timely commenced, the record demonstrates that the [College President] substantially complied with the internal rules of Purchase College, State University of New York and the determination was not arbitrary and capricious."
N.B. A request to “reconsider” a final and binding administrative determination does not toll the running of the Statute of Limitations [Lavin v Lawrence, 54 AD3d 412].
The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06026.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

October 13, 2012 in Litigation, Public Sector Employment Law | Permalink | Comments (0)

Monday, October 8, 2012

National security trumps federal employee’s civil service protection

Various media reports

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of  “security clearance.”
The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”
In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

October 8, 2012 in Public Sector Employment Law, Public Sector Labor Law, Recent Developments | Permalink | Comments (0)

Tuesday, October 2, 2012

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

 

Snead v Village of Spring Valley2012 NY Slip Op 05749, Appellate Division, Second Department

Supreme Court dismissed a petition filed pursuant to Article 78 of the Civil Practice Law and Rules challenging the determination of the Village of Spring Valley Justice Court dismissing the individual from her position, noting that the Justice Court had adopted the findings and recommendation of the disciplinary hearing officer.
The Appellate Division affirmed the Justice Court’s action, noting that the alleged misconduct, falsification of public records, and insubordination, was supported by “substantial evidence adduced at the administrative hearing.”
In addition, the court held that “in light of the charges and the [employee’s] duties, the penalty imposed was not so disproportionate to the offenses as to be "shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law, citing Pell v Board of Education, 34 NY2d 222.
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05749.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 2, 2012 in New York Law, Public Sector Employment Law | Permalink | Comments (0)

Tuesday, September 11, 2012

Using employer’s computer to store sexually explicit results in recommendation the employee be terminated

 

Human Resources Admin. v. Vila, OATH Index No. 1578/08
OATH Administrative Law Judge Julio Rodriguez recommended termination for a paralegal aide who used the agency computer to store thousands of unauthorized images and video clips, many of which were sexually explicit, as well as other programs and files.
The evidence also showed that the individual was insubordinate and committed multiple time and leave violations.

 

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

September 11, 2012 in Administrative Law, Public Sector Employment Law | Permalink | Comments (1)

Monday, September 10, 2012

Judicial review of disciplinary determination of guilt is limited to considering whether the determination is supported by substantial evidence

 

Barthel v Town of Huntington, 2012 NY Slip Op 05738, Appellate Division, Second Department
The Director of the Department of Human Services of the Town of Huntington adopted the findings of a hearing officer, made after a hearing pursuant to Civil Service Law §75, which the employee guilty of certain disciplinary charges and terminated the individual's employment with the Town.
The Appellate Division dismissed the individual’s appeal on the merits, explaining that the standard of judicial review of an administrative determination made after a trial-type hearing required by law, at which evidence is taken, “is limited to considering whether the determination was supported by substantial evidence.”
In this instance, said the court, there is substantial evidence in the record to support the determination that the individual was guilty of the subject disciplinary charges.
As to the penalty imposed, termination, the Appellate Division found that dismissal “was not so disproportionate to the offense as to be shocking to one's sense of fairness,” citing Ellis v Mahon, 11 NY3d 754; Rutkunas v Stout, 8 NY3d 897, Waldren v Town of Islip, 6 NY3d 735 and Pell v Board of Education, 34 NY2d 222.
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05738.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

September 10, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Wednesday, August 29, 2012

The Civil Service Law – an 1888 perspective

 

In 1888 William Harrison Clark wrote a book, The Civil Service Law – A defense of its principles, with corroborative evidence from the works of many eminent American statesmen. It addresses a variety of topics, some of which are still relevant in today’s public personnel law arena.
The text of this historical volume is posted on the Internet at:

 

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

 

August 29, 2012 in Public Sector Employment Law | Permalink | Comments (0)