Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

A Member of the Law Professor Blogs Network

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)

Sunday, August 26, 2012

A factual demonstration to support allegations that an individual was denied a fair hearing by an administrative tribunal is critical to rebutting the presumption of honesty and integrity accorded to administrative bodies

 

Dutrow v New York State Racing & Wagering Bd., 2012 NY Slip Op 05699, Appellate Division, Third Department

One of the issues in this appeal challenging a disciplinary action taken against an individual by the New York State Racing & Wagering Board was a claim that the target of a disciplinary action by the Board was deprived of a fair hearing as a result of the refusal of Board’s chair, John Sabini, to recuse himself from the proceeding.
Sabini, in addition to serving as the Board’s chair, was an unpaid officer of the Association of Racing Commissioners International, an organization devoted to maintaining a multi-jurisdictional database of licensed horse racing professionals' disciplinary histories.Sabini, however, had no prior official involvement with, and made no appearance in, this case stemming from his position with the Association. 
The Association’s president, however, had informed Sabini that a United States Senator's office had inquired about the case. The Association's president also had publicly urged the Board to assess individual’s "suitability to continue his participation in racing." The court, however, observed that [1] Sabini was not bound to follow any suggestions made by the Association or its president and [2] there was nothing in the record indicating that Sabini took any action based upon these communications or otherwise "gave the impression that [he] had prejudged the facts."
The Appellate Division said that such a “bare allegation” that these communications led to bias is insufficient absent "a factual demonstration to support the allegation . . . and proof that the [adverse] outcome flowed from it."
As the accused individual had failed, in the words of the court, "to rebut the presumption of honesty and integrity accorded to administrative bodies," the Appellate Division held “it cannot be said that he was denied a fair hearing.
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05699.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

August 26, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Wednesday, July 25, 2012

Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise

 

Roberts v Gavin2012 NY Slip Op 05239, Appellate Division, First Department
Lillian Roberts, Executive Director of District Council 37, AFSCME, AFL-CIO [DC 37], petitioned Supreme Court seeking an order annulling the Personnel Review Board of the New York City Health and Hospitals Corporation [PRB] determination the Health and Hospitals Corporation [HHC] decision to restructure its layoff units in response to a recent financial crisis.
Supreme Court dismissed DC 37’s petition; the Appellate Division affirmed the lower court’s ruling.
HHC, which initially had a single corporation-wide layoff unit that included all of its facilities throughout New York City, subsequently created smaller layoff units based on individual hospitals and health care facilities within HHC. In 2009, in response to financial pressures faced by the City, HHC again restructured its layoff units by creating eighteen additional, smaller, layoff units within the existing hospital and medical centers that had previously been designated as the layoff units. HHC then announced plans to either close or reduce staff at the clinics and programs designated as the new layoff unit, which would affect about 87 HHC employees.
After noting that Supreme Court “should not have dismissed the proceeding as time-barred,” the Appellate Division considered the merits of DC 37’s petition.
DC 37’s contended that PRB’s action was arbitrary and capricious. 
The Appellate Division said that an administrative body’s act or omission is arbitrary if it "is without sound basis in reason and is generally taken without regard to the facts," citing Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222. In contrast, said the court, “Where a rational basis exists for an agency's action, a court may not substitute its judgment for that of the agency, and the agency's determination, acting pursuant to legal authority and within its area of expertise, is entitled to deference.”
The Appellate Division said that DC 37 failed to show that PRB's upholding HHC's creation of additional layoff units was arbitrary or capricious, or affected by an error of law, pointing out that HHC acted consistent with its past practice of designating hospital programs as layoff units.
Citing the relevant HHC Rules, which, in pertinent part, sets out HHC’s the authority to amend its own rules and regulations and which, in particular, provides that HHC "may by rule designate an individual facility or division of any facility of [HHC] as separate units for layoff or demotion under this rule," the court concluded that the HHC Rules explicitly grant HHC the discretion to designate programs and clinics of HHC facilities as layoff units. 
At the hearing, HHC explained that the closing of the clinic and hospital-based programs was necessary to provide continuity of patient care in light of the budget deficit crisis facing the City. And in its decision, PRB found that HHC's actions were predicated on budgetary deficits that required closure and/or consolidation of programs and clinics in order to minimize the impact on patient care. PRB's decision was consistent with its previous precedent that "a presumption of regularity exists in the establishment of separate layoff units, until it is demonstrated that the layoffs were not done in accordance with a rational plan" (PRB Decision No. 682 [May 27, 1992] [emphasis in original]).
Noting that "A public employer may abolish civil service positions for the purpose of economy or efficiency," the court rejected DC 37’s claim that the creation of the new layoff units violated the seniority and displacement rights of certain employees, commenting  “although some longtime employees may lose their jobs, and newer employees may not,” in the absence of any nonconclusory showing of bad faith, it declined to disturb HHC's determination establishing the additional layoff unit.
Recognizing that there may have been a different way for HHC to structure its layoff plan, the Appellate Division said that it could not say that the agency acted in an arbitrary or capricious manner as "a court's opinion that a particular outcome is not fair or is not in the interests of justice is not sufficient to overcome the deference to be afforded an agency acting rationally within its area of expertise" and declined to substitute its judgment as to how HHC “should implement personnel decisions when determining how best to provide health care to the people of New York City” as to do so “would be an unwarranted intrusion into the managerial prerogative of HHC, which acted within its rule-making authority.”
The decision is posted on the Internet at:

 

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

July 25, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Thursday, July 19, 2012

Continuation on leave of absence from a teaching position upon permanent appointment to a classified service position critical to educator’s right to reinstatement to the teaching position

 

Fehlhaber v Board of Educ. of Utica City School Dist., 2012 NY Slip Op 04904, Appellate Division, Fourth Department
Craig S. Fehlhaber was initially employed by the Utica City School District as a tenured teacher. In 1997 the district appointed Fehlhaber as "Clerk of the Works" and later as Superintendent of Buildings and Grounds.
In 2010 the Board abolished the position of Superintendent of Buildings and Grounds and Fehlhaber asked to be "bump" vertically into the position of Maintenance Foreman or, in the alternative, to resume a teaching position. The Board denied both of these requests and Fehlhaber filed an Article 78 petition seeking a court order directing the Board to place him in one of those positions. Supreme Court dismissed his petition and Fehlhaber appealed..
Initially the Appellate Division resolved a procedural issue.
Supreme Court had ruled that Fehlhaber had failed to file a timely notice of claim. However, the Appellate Division agreed with Fehlhaber that “no notice of claim was required” in this instance.
Although, said the court, Education Law §3813(1) mandates that a notice of claim be filed when a claim is asserted against a board of education, "the notice of claim requirement is inapplicable to cases which seek to vindicate tenure rights which are legal rights guaranteed by State law and in the public interest," citing Cowan v Board of Educ. of Brentwood Union Free School Dist., 99 AD2d 831 and other decisions.
That said, the Appellate Division held that Supreme Court had properly dismissed the petition on the merits. Although Fehlhabercontended that he was entitled to a vertical "bump" into the position of Maintenance Foreman pursuant to Civil Service Law §80(6), the court noted that the record established that the Utica Municipal Civil Service Commission, after consulting with the New York State Civil Service Commission, said that "[i]n order for the rights of bumping' to exist, the [Fehlhaber] would have to demonstrate a legal entitlement to that bumping right.”
The Utica Commission, however, determined that Fehlhaber did not have any such bumping right. 
Here, said the court, in a case concerning an employee's bumping rights under the Civil Service Law, Matter of Hughes v Doherty, 5 NY3d 100, the Court of Appeals ruled that "judicial review of [the Commission's] classification system and determinations are limited to whether there was a rational basis for the agency's conclusion.... Unless the [Commission's] determinations were arbitrary or capricious, a court should not undermine its actions."
As the Appellate Division found that Fehlhaber failed to establish that the Commission's determination was arbitrary or capricious, or that there was no rational basis for its determination, it sustained the Supreme Court’s dismissal of his Article 78 petition on the merits.
Fehlhaber had raised an alternative theory  -- that he is merely on a leave of absence* from his tenured teaching position and was thus entitled to be reinstated to that position. The Appellate Division said that it agreed with Supreme Court that “[Fehlhaber] voluntarily abandoned his teaching position and thereby relinquished his tenure rights, at the latest, upon leaving the position for which the leave of absence was approved.”
Although it is well settled that "[t]he burden of proving abandonment is upon the [Board] and must be established by clear and convincing evidence that the [educator], by a voluntary and deliberate act, intended to relinquish [his or] her teaching position and forfeit [his or] her tenure rights," in this instance the Board granted Fehlhaber a leave of absence in 1997 "[t]o assume duties as Clerk of the Works."
When Fehlhaber left the Clerk of the Works position in 2002, he received a permanent appointment to the position of Superintendent of Buildings and Grounds, a position in the classified service, and he failed to seek reinstatement as a teacher or an extension of his leave of absence when he received that permanent appointment.

* 4 NYCRR 5.2, Leaves of Absence applies to classified service employees of the State in the service as the employer. Subdivision (c) provides as follows: (c) Successive leaves of absence. Where a leave of absence without pay has been granted for a period which aggregates two years, or more if extended pursuant to subdivision (b) of this section, a further leave of absence without pay shall not be granted unless the employee returns to his position and serves continuously therein for six months immediately preceding the subsequent leave of absence. Many local civil service commissions have adopted a similar rule.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

July 19, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Saturday, July 7, 2012

Failure to designate the §75 disciplinary action hearing officer in writing is a fatal procedural defect

 

Arthur v  Soares,  2012 NY Slip Op 04255, Appellate Division, 3rd Dept.
The Albany County District Attorney, P. David Soares,  filed disciplinary charges pursuant to §75 of the Civil Service Law against one of his subordinates, D. Richard Arthur, then serving as the office’s Director of Administration.
The Hearing Officer found Arthur guilty of the charges and recommended that he be terminated from his position. Soares adopted the hearing officer’s findings and recommendation and dismissed Arthur from his position. Arthur file a petition pursuant to Article 78 seeking a court order vacating Soares' action.
The Appellate Division annulled Soares' decision, finding “the record evinces that the Hearing Officer lacked jurisdiction.” and directed that Arthur be reinstated to his former position with back pay and benefits.*
The court noted that Civil Service Law §75(2), provides that a hearing on employee disciplinary charges "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a . . . person designated by such officer or body in writing for that purpose" [emphasis supplied].
It is well settled, said the Appellate Division, that absent "a written delegation authorizing a deputy or other person to conduct the hearing," the hearing officer did not have jurisdiction to conduct the §75 disciplinary hearing,  citing Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, among other decisions.
Significantly, the Appellate Division, Third Department had earlier ruled that the requirements of Civil Service Law §75(2) could be satisfied by a written record of such designation such as the minutes of a board meeting at which a resolution was adopted appointing the hearing officer or a letter to the hearing officer advising him or her that the official designation has taken place. In contrast, the court observed that “correspondence to the hearing officer that does not reference the official designation is insufficient, as is written notice to the [accused] of the hearing officer's identity.”
The Appellate Division found that there was no evidence in the record on appeal that the appointing authority had ever designated the Hearing Officer in a writing sufficient to satisfy the statutory requirement. The court specifically noted that reference to the designation of the hearing officer in the notice of charges sent to Arthur is not sufficient in the absence of any evidence of the written designation itself.”**
In addition, the employee’s failure to object to the absence of such written designation “is of no moment, inasmuch as this jurisdictional defect cannot be waived,” said the court, citing Gardner v Coxsackie-Athens Cent. School Dist. Bd. of Educ., 92 AD3d at 1095. This clearly implies that the individual being disciplined has no duty to inform the appointing authority of this procedural defect.
As the Hearing Officer lacked jurisdiction to conduct the hearing, his determination and Soares’ adoption thereof are nullities and Arthur, said the court, “must be restored to his former position with back pay and benefits.”
The court also noted that while courts employ the substantial evidence standard of review in resolving challenges to Civil Service Law §75 determinations, the disciplinary hearing officer does not review an employer's disciplinary actions taken against a public employee "to determine whether those actions were undertaken based upon substantial evidence," as occurred in Arthur's disciplinary proceeding; rather," it remains the responsibility of the hearing officer to weigh the evidence and resolve credibility determinations."
Further, said the court, "administrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review."
* The Appellate Division also held that the hearing officer “did not properly weigh the evidence, and failed to adequately detail the specific factual findings and hearing evidence relied upon.”
** Such notice to the accused has been deemed to satisfy the statutory mandate when the appointing authority separately issues a written resolution incorporating the notice by reference (Scharf v Levittown Union Free School Dist., 294 AD2d 508, lv denied 98 NY2d 613).

 

July 7, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Sunday, June 17, 2012

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations

 

Robida v Ziemba, 2012 NY Slip Op 01041, Appellate Division, Fourth Department 
Town of Cheektowaga police officer David K. Robida was served with disciplinary charges pursuant to both Civil Service Law §75 and Town Law §155. A hearing was held in accordance with those statutes.
Ultimately the Town Board adopted a resolution that terminated Robida pursuant to Town Law §155.
Town Law §155 specifically provides that a CPLR Article 78 proceeding to review a determination pursuant to the statute must be commenced within 30 days of the determination; §75 of the Civil Service Law provides that such a proceeding must be commenced within four months after the determination becomes final. *
The Appellate Division said that it was undisputed that Robida commenced his action more than 30 days after the Town Board's determination. Accordingly, said the court, “it is time-barred.”
The court rejected Robida’s argument that the time limits set out in §75 controlled and thus his petition was timely, ruling that “the 30-day limitations period set forth in Town Law §155 is not limited to those disciplinary proceedings that were brought solely pursuant thereto.”
The Appellate Division explained that the statute of limitations for a CPLR Article 78 proceeding pursuant to which Robida sought to annul th Board's determination is governed by CPLR §217(1), which provides that, "u]nless a shorter time is provided in the law authorizing the proceeding," the proceeding must be commenced within four months after the determination to be reviewed becomes final.
As in this instance the "shorter time" was set out in Town Law §155, which authorized the disciplinary proceeding, Robida was required to file his petition challenging the Town’s determination within 30 days of the Board's decision becoming final.
* §76.1 of the Civil Service Law provides that an appeal from an adverse disciplinary decision made pursuant to §75 of the Civil Service Law may be made to the civil service commission having jurisdiction within twenty days after service of written notice of the determination to be reviewed or in accordance with the provisions of Article 78 of the CPLR. An even shorter statute of limitations is set out in §3020-a.5 of the Education Law for appealing a disciplinary arbitration decision pursuant to Article 75 of the CPLR – 10 days. 
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01041.htm

reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 17, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Monday, June 11, 2012

An appointing authority has broad discretion in determining if an omission in the probationer’s application form is material to his or her qualifications for the position

 

The Appellate Division unanimously affirmed a Supreme Court ruling that dismissed a probationary police officer’s challenge to his termination during his probationary period.
The court said that the appointing authority was “entitled to discharge a probationary police officer ‘for almost any reason, or for no reason at all' as long as it is not in bad faith or for an improper or impermissible reason," citing Duncan v Kelly, 9 NY3d 1024.
The probationer alleged that he was terminated because of his “inadvertent” failure to disclose the psychological treatment he underwent at the age of six. The Appellate Division held that even if the probationer was "ignorant or unaware of or oblivious to his personal history,” the appointing authority was entitled, given the broad discretion vested in it, to deem "such omissions a[s] material to his qualifications."
Citing Talamo v Murphy, 38 NY2d 637, the decision notes that even assuming the truth of the probationer's allegations, his petition failed to allege any facts that would, if proven to be true, constituted a violation of "statute or policies established by decisional law."
As the probationer failed to allege facts supporting a conclusion that his termination was in bad faith, the Appellate Division ruled that “Given this failure, a hearing to resolve the truth of the facts alleged is unnecessary.”
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03516.htm

reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

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

Wednesday, May 23, 2012

Health insurance benefit enjoyed by retired individuals not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties

 

DiBattista v County of Westchester35 Misc3d 1205
The action involved some 1,600 individuals who retired from Westchester County as their employer between 1993 and 2004.
Between 1993 and 2001, two collective bargaining agreements were executed between CSEA and Westchester County. These agreements, among other things, provided for certain medical health insurance benefits. Those provisions remained in effect until May 2004 when a new agreement was made.
The 2004 agreement changed the health benefits available to active employees and Westchester County decided that such changes should also be imposed on its then retired employees. The County indicated that it had been its policy to treat retirees the same as active employees whenever a new collective bargaining agreement negotiated.
The retired employees sued, contending the County could not modify their health insurance benefits to reflect the benefits it and CSEA had negotiated on behalf of active employees in the collective bargaining unit when such modification resulted in an increase in their medical and health insurance costs.
Justice Lefkowitz agreed, ruling:
1. “Absent consent of all parties, a union does not represent retirees when it negotiates with an employer in collective bargaining;
2. “Vested retirement rights may not be altered without the pensioner's consent;
3. “Where, as here, there is no durational limit in the immediate prior collective bargaining agreements as to retiree health insurance benefits 'it is unlikely that such benefits, which are typically understood as a form of delayed compensation for past services, would be left to the contingencies of future negotiations';
4. “Retiree benefits 'carry with them an inference that they continue so long as the prerequisite status is maintained'; and
5. “This inference trumps any general duration clause as to the life or termination of the agreement.”
Deciding in favor of the retirees, Justice Lefkowitz held that the retirees’ health insurance benefits set out in the prior collective bargaining agreements survived the 2004 negotiated agreement and could not be modified without their consent, citing Hudock v. Village of Endicott, 28 AD3rd 923 and other decisions.
N.B. The County appealed Justice Lefkowitz's decision but subsequently decided to withdraw its appeals. The Appellate Division granted the County’s application to withdraw the appeals [DiBattista v County of Westchester, Slip Opinion No: 2010 NY Slip Op 60446(U), Appellate Division, Second Department, Motion Decision].
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52731.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

May 23, 2012 in Employee Benefits Law, Employment Law, Public Sector Employment Law | Permalink | Comments (0)

Tuesday, May 22, 2012

Failure to possess a valid license or certificate required by law to perform the duties of the position held a valid basis for terminating the incumbent from the position

 

Lutz v Krokoff, 2012 NY Slip Op 22083, Supreme Court, Albany County, Justice Michael C. Lynch
An Albany, New York police officer’s driver’s license was revoked as the result of an off-duty incident.
The Chief of Police wrote the officer indicating that possession of a valid driver’s license “is a minimum qualification for [a] Police Officer in the City of Albany” and offered him “the opportunity to present ...written documentation regarding the status of [his] license.…” The officer told the Chief that his driver's license was "currently suspended pending prosecution and revoked ... but that he had filed a “Notice of Appeal.”
Chief Krokoff terminated the police officer from his position "effective immediately" explaining:
“In that you no longer hold a valid State driver's license allowing you to lawfully operate a motor vehicle in this State, you no longer meet a critically important minimum qualification of a Police Officer in the City of Albany.”
The officer sued, contending that the Chief’s determination to terminate his employment based on his failure to possess a valid driver's license was affected by an error of law and was arbitrary and capricious. The officer also argues that the determination was without a rational basis and arbitrary and capricious because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ...for the failure to possess a valid New York State driver's license".
Addressing the issue of “due process,” the court said that “A pre-termination hearing pursuant to Civil Service Law §75 or, in certain cases, a collective bargaining agreement, is not necessarily required where a public employee becomes ineligible or unqualified for continued employment,” citing New York State Office of Children and Family Services v. Lanterman, 14 NY3d 275 and Felix v. NY City Dep't of Citywide Admin. Servs., 3 NY3d 498.
Justice Lynch, referring to Felix, commented that in that case the Court of Appeals distinguished between conduct that renders an employee ineligible to continue employment (i.e.the failure to maintain a residence in the City as required by the City Code) with conduct constituting misconduct.
Only action in the nature of discipline is subject to pre-termination review pursuant to the Civil Service Law or a similar law, or a disciplinary procedure set out in a collective bargaining agreement. 
In contrast, where an individual is required by law to posses a valid license or “professional certification” in order to lawfully perform the duties of the position was the individual’s failure to produce evidence of his or her possession of the required license or certification meant that he or she was not qualified to hold the position rather than “incompetent,” in a pejorative sense, to perform the duties of the position.*
In this instance, said the court, the issue was whether Chief Krokoff's determination to summarily terminate the police officer based on his failure to posses a valid New York State driver's license was made in violation of lawful procedure, affected by an error of law or was arbitrary and capricious or an abuse of discretion.
The question presented here did not implicate issues concerning the police officer’s performing the duties of his job satisfactorily or allegations of misconduct or competency. Rather, the police officer's ability “to operate a vehicle legally (i.e. with a valid license) is “a defined standard that is not related to job performance.” Justice Lynch concluded that once an officer loses his or her driver’s license, he or she is no longer able to perform the duties of his or her job lawfully. Whether that officer has engaged in misconduct or failed to competently perform such duties was not at issue.
In Justice Lynch’s view, the maintenance of a valid driver's license was a qualification for employment as a police officer in the City of Albany. As such, the Chief's decision to terminate the police officer without a hearing because he was unable to produce evidence of having a valid driver’s license was not arbitrary, capricious, contrary to law or a violation of due process.
As to the police officer’s claim of “disparate treatment” because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ... for the failure to possess a valid New York State driver's license," the court noted that Chief Krokoff had indicated that “since he became Chief of Police … no other police officer has been similarly situated to [the police officer] insofar as not having a valid driver's license" and the officer “has not demonstrated otherwise.”
Justice Lynch denied the police officer’s petition and dismissed his complaint.
* In Martin ex rel Lekkas, 86 AD2d 712, the appointing authority had terminated Lekkas from his position because he did not hold a valid New York State license to practice medicine. However, Lekkas served in an administrative capacity and did not practice medicine. The court held that only where the duties of the position required the incumbent to be licensed may the lack of such a license be grounds for termination.
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22083.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

May 22, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Tuesday, May 8, 2012

Public employer’s agreement to defend and indemnify officers and employees being sued in a civil action may be rescinded for failure to cooperate

 

Lancaster v Incorporated Vil. of Freeport, 2012 NY Slip Op 01465, Appellate Division, Second Department
The Board of Trustees of the Incorporated Village of Freeport revoked its earlier resolution adopted in accordance with §18 of the Public Officers Law providing a defense and indemnification in certain civil actions for certain officers or employees of the Village. *
§18, in pertinent part, provides for the defense and indemnification of officers and employees of public entities being sued for an act or omission related to the performance of official duties.
Subdivision 5 of §18 requires the officer or employee to meet the following requirements in order to meet the following conditions with respect to the public entity’s “duty to defend or indemnify and save harmless” the individual being sued:
 (i) delivery by the employee to the chief legal officer of the public entity or to its chief administrative officer of a written request to provide for his defense together with the original or a copy of any summons, complaint, process, notice, demand or pleading within ten days after he is served with such document, and
 (ii) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the public entity based upon the same act or omission, and in the prosecution of any appeal.
In response to the officers and employees challenging the action of the Board rescinding its earlier resolution to defend and indemnify them, the Appellate Division sustained Supreme Court’s dismissal of their petition.
The Appellate Division explained that such action on the part of the Board was neither arbitrary and capricious nor an abuse of discretion as the conduct of such officers and employees “after their cooperation in the defense of those actions was diligently sought, was one of willful and avowed obstruction.”
* §17 of the Public Officers Law provides similar protections to officers and employees of the State as the employer.
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01465.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

May 8, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Thursday, April 26, 2012

Commissioner’s holding office for a specified term may only be removed during such term for cause

 

Sedacca v Kelly, 2012 NY Slip Op 01319, Court of Appeals

The Court of Appeals has ruled that the Nassau County Executive did not have the authority to terminate Commissioners of the Nassau County Assessment Review Commission (ARC), in the absence of cause, prior to the expiration of their fixed, statutory terms. 
The ARC consists of nine commissioners appointed by the County Executive subject to approval by the County Legislature and have staggered five-year terms and that no more than six of the commissioners can be enrolled voters of the same political party.
The outgoing Nassau County Executive had appointed six ARC Commissioners. The counsel to the then-newly elected County Executive sent letters to each of the nine commissioners informing them that they were being removed from office pursuant to §203 of the Nassau County Charter. The letter stated that the commissioners had an opportunity to be heard, if they so desired. 
The Court of Appeals noted that the Nassau County Charter vests the County Executive with authority to appoint members of county boards and commissions, subject to approval of the County Legislature, citing Nassau County Charter § 203 [1]). Concomitantly, said the court, "[t]he County Executive may at any time remove any person so appointed; provided that in the case of members of boards and commissions appointed for definite terms, no removal shall be made until the person to be removed has been serv[ed] with a notice of the reasons for such removal and given an opportunity to be heard, publicly if he or she desires, thereon by the County Executive. The decision of the County Executive shall be final." 

Nassau County argued that, according to the plain language of the County Charter, the County Executive was within his authority to terminate Commissioners notwithstanding the absence of any wrongdoing on their part and regardless of the statutory term of office “in order to appoint individuals of his choosing.”
The Court of Appeals said that, in its view, the County’s argument “is inconsistent with the salutary purpose of the legislation at issue.” The court explained that “Although Real Property Tax Law §523-b does not set forth any procedure for the removal of commissioners, the statute demonstrates the legislative intent to protect the ARC from political influence. It is evident that the fixed, staggered terms of office along with the requirement that all of the commissioners must not be members of a single political party, are designed to promote stability of membership and political diversity. Notably, the five-year term of office exceeds the length of the County Executive's own. This design may frustrate the most recent expression of the electorate's mandate, but it is meant precisely to avoid a wholesale change of membership of the ARC upon the installation of each successive administration.”
As Nassau County’s Charter makes clear that when members of a commission appointed for a fixed term are removed, the "reasons for such removal" must be provided. "Reasons," in this context said the Court of Appeals, can reasonably be read as a synonym for "cause." Thus §203 permits removal of commissioners serving fixed terms for cause, but not otherwise. The court ruled that "the Real Property Tax Law §523-b and County Charter §203 are not incompatible, and read them together "to accomplish the clear legislative intent."
Although the Court of Appeals said that the commissioners, as County employees, are not protected by §36 of Public Officers Law,* it then noted that “it is instructive that a finding of some type of misconduct would be required to remove members of the similarly situated Board of Assessment Review (see 4 Ops Counsel SBEA No. 27 [1974])”**.
The court then observed that “Removing the Commissioners without cause under County Charter §203 would frustrate the legislative intent by nullifying the requirements of the RPTL and rendering the staggered statutory terms of office in RPTL 523-b superfluous. \”
Thus, said the court, under the circumstances the commissioners are not essentially at-will employees, subject to termination for any reason whatsoever.
As to the several commissioners’ claim that that they were entitled to attorneys' fees they incurred in the course of this litigation, the Court of Appeals disagreed, holding that although the County is required to "provide for the defense" of an employee involved in a civil action arising out of an act or omission that occurred during the scope of his or her employment, in this instance the “employees commenced the action.” Accordingly, there is no obligation on the part of the County to pay for their "defense."
* §36 of the Public Officers Law provides for the removal of public officers "for any misconduct, maladministration, malfeasance or malversation in office."
** Office of Real Property Tax Services, New York State Department of Taxation and Finance. Opinions of Counsel are posted on the Internet at:http://www.tax.ny.gov/pubs_and_bulls/orpts/legal_opinions/index.htm
The decision is posted on the Internet at:

 

http://www.publicpersonnellaw.blogspot.com/

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 26, 2012 in Public Sector Employment Law | Permalink | Comments (1)

Saturday, April 21, 2012

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

 

Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 2012 NY Slip Op 00623, Appellate Division, Fourth Department
David Zehner alleged that the Jordan-Elbridge Central School District had engaged in a pattern of violating New York's Open Meetings Law (Public Officers Law §100 et seq.) with respect to its going into executive session. Supreme Court agreed.
Affirming the lower court’s ruling, the Appellate Division said that the Open Meetings Law [OML] provides that "Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Section 105]" Here, said the court, the school district had violated the OML on three occasions.
Although the OML does allow a public body to go into executive session, the Appellate Division noted that “the topics that may be discussed [in such an executive session] are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.”
The problem underlying this action was that the school district “merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so.”  Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division explained that §105 is to be “strictly construed,” and the real purpose of an executive session will be carefully scrutinized "lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder."
Noting that the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party,” the Appellate Division said that it did not perceive any abuse by the Supreme Court, in it's exercise of its discretion, awarding attorney fees to Zehner.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

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

Tuesday, April 3, 2012

Rare Civil Service Law Section 75 Overturned

James v. Hoosick, ____A.D.3d____(3d Dep't. March 29, 2012), is an interesting case. A school  custodian had a physical altercation with his girlfriend and broker her ribs. The school terminated him for this off duty misconduct. The court over-turned the penalty of termination, finding it to be shocking. As the court explained:

 We do, however, find merit in petitioner's assertion that termination was so disproportionate as to be shocking to one's sense of fairness (see Matter of Senior v Board of Educ. of Byram Hills Cent. School Dist., 37 AD3d 610, 611 [2007]). Petitioner had been employed by the District for 20 years without any prior incidents of misconduct. The misconduct [*3]in question occurred off premises, it did not involve anyone associated with the school, and he did not hold a high profile job at the school. Moreover, even under the version of events found credible by the Hearing Officer, it is apparent that the girlfriend was intoxicated, she instigated the physical conduct during their fight and she struck petitioner before he pushed her to the floor. The prosecutor determined not to pursue any criminal charges for the incident. Facin stated that the District pursued the disciplinary charges out of concern for the safety of the school, but he acknowledged that no school staff had indicated a concern about working with petitioner and no proof was introduced indicating that the students at the school were in any danger because of petitioner's presence. Although Facin further expressed concern since "everybody" knew about the incident because it is a "small community," there is no legal basis for making discipline more severe based on the size of the community. Clearly, any domestic violence is serious and the absence of the mitigating factors mentioned herein could justify termination. However, we find that, under these circumstances, termination is unduly disproportionate.

Mitchell H. Rubinstein

April 3, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Saturday, March 31, 2012

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record

 

Rauschmeier v Village of Johnson City2012 NY Slip Op 00158, Appellate Division, Third Department
The Village of Johnson City filed disciplinary charges against an employee pursuant to Civil Service Law §75. Following a disciplinary hearing, the Hearing Officer recommended that employee be found not guilty of the charges filed against him and that he be reinstated to his position with full back pay, benefits and seniority.
The Mayor of the Village, with support of the Village Board of Trustees, rejected the Hearing Officer's recommendation, found the employee guilty of misconduct and dismissed the employee from service.
Contending that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, the employee sued, seeking, among other things, an annulment of the penalty imposed by the Mayor. 
Although Supreme Court rejected the employee’s claim that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, a determination sustained by the Appellate Division,* another issue, whether the Mayor’s decision to reject the Hearing Officer's recommendation was supported by substantial evidence, was referred to, and considered by, the Appellate Division.
Addressing the Mayor’s decision to reject the Hearing Officer's recommendation, the Appellate Division said that its review of such a determination was limited to whether it is supported by substantial evidence.
When, however, the appointing authority, rejects a disciplinary recommendation made by a hearing officer after a hearing, the appointing authority must set forth in its decision "findings of fact based on competent proof contained in the record and then employ those findings to arrive at conclusions that are supported by substantial evidence."
The Appellate Division said that the Mayor, in rejecting the Hearing Officer's recommendation, referred to testimony of certain witnesses given at the hearing, but did not specify what in their testimony supported his conclusion.
More is required said the court, “especially since the other evidence introduced at the hearing – all of which is uncontradicted and not in dispute — supports the Hearing Officer's determination.”
Accordingly, the Appellate Division ruled that the Mayor’s “conclusion to the contrary was not supported by substantial evidence,” and thus his determination must be annulled and the employee reinstated to his position with full back pay and benefits.
* The Appellate Division also rejected the employee’s contention that the Mayor acted beyond his legal authority, pointing out that Civil Service Law §75(2) provides that an employee disciplinary proceeding shall be conducted "by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose" and where such a designation is made, the person so designated is to make a record of the hearing  and a recommendation as to the penalty to be imposed in the event the individual is found guilty of one or more charges. The record of the hearing and the recommendation is then to "be referred to [the appointing authority] for review and decision."
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

March 31, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Saturday, March 24, 2012

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary Rogan v Nassau County Civ.

 

Rogan v Nassau County Civ. Serv. Commn, 2012 NY Slip Op 00217, Appellate Division, Second Department 
A candidate in Nassau County”s Police Officer Examination No. 7000 failed to attain a passing score on the physical fitness screening test.
The candidate sue, contending that the Commission acted irrationally or arbitrarily and capriciously in relying upon a proctor's assessment that the candidate failed to complete the number of sit-ups required to pass the physical fitness screening test promulgated by the State’s Municipal Police Training Council.
Supreme Court denied his petition and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division, noting that “An appointing authority* has wide discretion in determining the fitness of candidates,” explained that such discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”
A court, said the Appellate Division, “may not substitute its judgment for that of the agency responsible for making the determination and, as long as the administrative determination is not irrational or arbitrary and capricious, [it] may not annul it.”
* Although this decision may give the reader the impression that the Commission was the appointing authority with respect to police officers, a Civil Service Commission is the agency responsible for determining the eligibility of candidates seeking appointment to positions in the competitive class of the classified service by examination and then certifying those found eligible and qualified to the appointing authority for selection for appointment to the position. [People v Gaffney, 201 NY 535]
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

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

Thursday, March 22, 2012

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”

 

Clark v Schriro, 2012 NY Slip Op 00118, Appellate Division, First Department
Jesse Clark filed a CPLR Article 78 petition “in the nature of mandamus” seeking to compel the New York City Office of Administrative Trials and Hearings [OATH] to hold a disciplinary hearing on charges that had been filed against him by the NYC Department of Correction. Supreme Court dismissed Clark’s petition and the Appellate Division affirmed the lower court’s decision.
In the words of the Appellate Division, “Supreme Court properly found that since respondents were not required to provide [Clark] with a hearing within a specifically prescribed period, but only within a "reasonable time" (New York City Charter §1046[c]), their failure to do so for more than a year after charging [Clark] with misconduct did not constitute failure to fulfill a nondiscretionary duty or perform a purely ministerial act.”
Should an employee be suspended from his or her position without pay upon his or her being served with disciplinary charges, however, typically the individual must be restored to the payroll after a specified period of time if such action is mandated by law [see, for example, Civil Service Law §75.3] or as required by a collective bargaining agreement.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

March 22, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Thursday, March 15, 2012

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits

 

Levy v Plainview Fire Dept., 89 AD3d 1331

Danny Levy, a member of the Plainview Fire Department, submitted a volunteer firefighters' claim for benefits based upon injuries allegedly sustained while assisting the City of New York Fire Department at the World Trade Center disaster in September 2001.
The Workers' Compensation Board awarded claimant benefits, finding dual liability between the Plainview Fire Department and the self-insured employer, the City of New York, on the ground that Levy's activities at ground zero were directed and controlled by both entities. Rejecting the City’s appeal, the Appellate Division affirmed the Board’s ruling.
The court noted that the General Municipal Law §209-i 1) provides that "Whenever a volunteer [firefighter] is within this state, but outside the area regularly served by the fire company or fire department of which [the volunteer] is a member and has knowledge of a fire or other emergency at or near the place where [the volunteer] is for the time being, such volunteer . . . may report to the officer in command of the paid or volunteer fire company or paid or volunteer fire department, or in command of one of the paid or volunteer fire companies or one of the paid or volunteer fire departments, engaged in the handling of any such fire or other emergency and, on an individual basis, offer his [or her] services to assist such fire company or fire department. After [the volunteer's] services are so accepted, the volunteer . . . shall then be entitled to all powers, rights, privileges and immunities granted by law to volunteer [firefighers] during the time such services are rendered, in the same manner and to the same extent as if [the volunteer] were a volunteer member of the fire company or fire department which he [or she] is assisting, including benefits under the volunteer [firefighters'] benefit law."
The Appellate Division said that the record establishes that Levy initially volunteered on his own at ground zero on September 11, 2001. Thereafter, on September 12, 2001, claimant reported to the Plainview fire house where the fire chief requested volunteers to assist in the rescue and recovery efforts at ground zero. Levy testified that over the course of the next two weeks, he reported to the City's headquarters with other Plainview firefighters who volunteered and that their activities were then directed and controlled by the City.
Accordingly, the court held that substantial evidence supported the Board's factual conclusions regarding Levy’s dual employment.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

 

March 15, 2012 in Public Sector Employment Law | Permalink | Comments (1)

Sunday, March 11, 2012

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record

 

Rauschmeier v Village of Johnson City2012 NY Slip Op 00158, Appellate Division, Third Department
The Village of Johnson City filed disciplinary charges against an employee pursuant to Civil Service Law §75. Following a disciplinary hearing, the Hearing Officer recommended that employee be found not guilty of the charges filed against him and that he be reinstated to his position with full back pay, benefits and seniority.
The Mayor of the Village, with support of the Village Board of Trustees, rejected the Hearing Officer's recommendation, found the employee guilty of misconduct and dismissed the employee from service.
Contending that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, the employee sued, seeking, among other things, an annulment of the penalty imposed by the Mayor. 
Although Supreme Court rejected the employee’s claim that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, a determination sustained by the Appellate Division,* another issue, whether the Mayor’s decision to reject the Hearing Officer's recommendation was supported by substantial evidence, was referred to, and considered by, the Appellate Division.
Addressing the Mayor’s decision to reject the Hearing Officer's recommendation, the Appellate Division said that its review of such a determination was limited to whether it is supported by substantial evidence.
When, however, the appointing authority, rejects a disciplinary recommendation made by a hearing officer after a hearing, the appointing authority must set forth in its decision "findings of fact based on competent proof contained in the record and then employ those findings to arrive at conclusions that are supported by substantial evidence."
The Appellate Division said that the Mayor, in rejecting the Hearing Officer's recommendation, referred to testimony of certain witnesses given at the hearing, but did not specify what in their testimony supported his conclusion.
More is required said the court, “especially since the other evidence introduced at the hearing – all of which is uncontradicted and not in dispute — supports the Hearing Officer's determination.”
Accordingly, the Appellate Division ruled that the Mayor’s “conclusion to the contrary was not supported by substantial evidence,” and thus his determination must be annulled and the employee reinstated to his position with full back pay and benefits.
* The Appellate Division also rejected the employee’s contention that the Mayor acted beyond his legal authority, pointing out that Civil Service Law §75(2) provides that an employee disciplinary proceeding shall be conducted "by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose" and where such a designation is made, the person so designated is to make a record of the hearing  and a recommendation as to the penalty to be imposed in the event the individual is found guilty of one or more charges. The record of the hearing and the recommendation is then to "be referred to [the appointing authority] for review and decision."
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

 

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

Wednesday, March 7, 2012

Resignation in anticipation of being served with disciplinary charges

 

Claim of Cohen (Town of Brookhaven--Commissioner of Labor), 2012 NY Slip Op 00068, Appellate Division, Third Department

The decision explores the eligibility of an individual who resigned from his position when threatened with disciplinary action.
Citing Matter of Jimenez [New York County Dist. Attorney's Off. —Commissioner of Labor], 20 AD3d 843, the Appellate Division said that "A claimant 'who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct."
In this instance Brookhaven was preparing to file Civil Service Law §75 disciplinary charges against the employee unless some type of negotiated resolution was agreed upon or the employee resigned from the position.*
The employee resigned and applied for unemployment insurance benefits claiming that he felt he had no option but to leave his employment since disciplinary charges were imminent, that he did not believe he could prevail at a hearing and that he could lose his medical benefits.
The Unemployment Insurance Appeal Board ruled that employee was entitled to receive benefits provided that he did not engage in disqualifying misconduct and remanded the matter to the Unemployment Insurance Administrative Law Judge for “a further hearing on the misconduct issue.”** 
The Appellate Division sustained the Board's determination. Although the employer never actually filed before the employee resigned, the court ruled that “under the circumstances presented,” this does not establish that [the employee] voluntarily left his employment without good cause and thus was ineligible for unemployment insurance benefits."
* In some instances an employee threatened with disciplinary action unless he or she resigns does, in fact resign only to subsequently attempt to rescind his or her resignation claiming that it was coerced. In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals sustained the appointing authority’s refusal to allow Rychlick to withdraw his resignation that Rychlick claimed had been obtained under duress -- the threat of disciplinary action unless he resigned -- ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.
** 4 NYCRR 5.3, which applies to officers and employees of the State as an employer, provides that in the event charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation. Many local civil service commissions have adopted a similar rule with respect to public employees under their respective jurisdictions.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

 

March 7, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Wednesday, February 22, 2012

A formal rule or regulation describing the alleged act of misconduct is not required in order to file disciplinary charges against an employee

 

Matter of Matter of Foster v Aurelius Fire District2011 NY Slip Op 09483, Appellate Division, Fourth Department
Kevin Foster commenced a CPLR Article 78 proceeding challenging the determination finding him guilty of misconduct based upon actions constituting insubordination and failure to follow the chain of command. The penalty imposed: suspension and then reinstatement subject to a probationary period.
When Supreme Court transferred, the Appellate Division addressed the merits of Foster’s arguments “in the interest of judicial economy.”*

As to the merits of the issues raised by Foster, the Appellate Division rejected his argument that the charge against him should have been dismissed because it failed to specify any rule, regulation, policy or bylaw that he violated.
Noting that Forster had conceded at the administrative hearing that he was aware of Fire District's policies with respect to the chain of command, the court said that record establishes that Foster “deliberately circumvented that chain of command to undermine the authority of his superior officer.”
Citing Murphy v County of Ulster, 218 AD2d 832, leave to appeal denied 87 NY2d 804, the Appellate Division held that under the facts of this case Foster’s contention that “a specific act or misdeed must be embodied in a formal rule or regulation before it may serve as a basis for disciplinary action is unavailing."
The court also rejected Foster’s claim that the penalty imposed, which includes suspension followed by a probationary period, is "so disproportionate to the offense as to
* The Appellate Division commented that as Foster did not raise a substantial evidence issue, Supreme Court erred in transferring the proceeding to it.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

February 22, 2012 in Public Sector Employment Law | Permalink | Comments (0)