TO RESEARCH NYPPL POSTINGS type in your key word or phrase in the box at the upper left and tap enter.

N.B. “Cookies” provide a method for an Internet site to recognize a visitor and keep track of "visitor preferences." NYPPL does not use “cookies.” Google, its advertisers linked to this site by Google and others, however, may be using "cookies." A visitor's continuing to access NYPPL will be deemed to constitute the visitor's knowledge of, and the visitor's consent to, the use of "cookies" on NYPPL's LawBlog by Google, its advertisers and others.

Thursday, April 28, 2016

The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time


The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time
Appeal of Kavanaugh v Board of Education of the Hamburg Central School District, et al, Decisions of the Commissioner of Education, Decision No. 16,897

Martha A. Kavanaugh, a tenured teacher, appealed the decision of the Hamburg Central School District Board of Education placing her on "administrative leave and/or suspend[ing] her with pay” effective January 15, 2014. The noticed placing Kavanaugh in such status stated that the School Board was “investigating [her] conduct as a school district employee” and that “[w]hile on leave, you are not permitted on District grounds, including any school buildings.” 

On September 2, 2015, the School Board served disciplinary charges against Kavanaugh pursuant to Education Law §§3020 and 3020-a alleging “incompetence/neglect of duty and insubordination.” Kavanaugh requested an administrative hearing on these charges which the Commissioner’s decision indicates “appear to be pending” at the time the Commissioner considered Kavanaugh’s Education Law §310 appeal.

In this appeal Kavanaugh contended that the School Board’s action placing her on “administrative leave” on January 14, 2014, and thereafter extending her “suspension” on March 2, 2015, without filing disciplinary charges against her were unlawful.*

As redress, she asked the Commissioner to [1] declare such action by the Board null and void; [2] direct the Board to reinstate her to her former position; and [3] direct the Board to expunge any reference to the alleged unlawful suspension or to any disciplinary actions relating to that period of time from her personnel records.**  Additionally, Kavanaugh sought reimbursement of legal fees she had incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the Board members’ oath of office; that the Commissioner reprimand the respondents in this appeal; and an order directing such respondents to publicly apologize to her.

The School Board, in rebuttal, argued, among other things, that its placement of Kavanaugh on administrative leave was proper in all respects; that Kavanaugh failed to establish that Board acted in an arbitrary and capricious manner, and that Kavanaugh failed to state a claim. 

Addressing a number of procedural objections advanced by the School Board, the Commissioner ruled that as the Board’s action challenged by Kavanaugh “clearly affected [her] directly and she is asserting an adverse effect upon her personal and property rights as a result of being removed from her teaching duties,” Kavanaugh had standing to maintain her appeal.***

In response to the School Board’s argument that Kavanaugh’s challenging the Board’s actions of January 14, 2014 and March 2, 2015 regarding placing, or continuing, her on leave and/or suspending her with pay was untimely, the Commissioner ruled that Kavanaugh’s appeal was not untimely as these actions by the Board, if proven, would constitute a continuing wrong, commenting that “[t]he continuing wrong doctrine applies when the ongoing action is itself an unlawful action….”

Noting that the suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board, the Commissioner ruled that “the suspension of a tenured teacher without the filing of such charges is ultra vires [acting beyond one's legal power or authority] and, thus, constitutes a continuing wrong” and, accordingly, Kavanaugh’s appeal was not untimely.

Addressing the merits of Kavanaugh’s appeal, the Commissioner again observed that “the suspension of a tenured teacher requires the board of education to file written charges within a reasonable amount of time, and that the suspension without the filing of charges is ultra vires and in violation of the individual’s tenure rights.” In this instance, said the Commissioner, a tenured teacher was suspended more than 19 months before disciplinary charges were served on her and she was prohibited from coming on school property and could not consult with her colleagues during this period.

Conceding that the School Board correctly asserted that a board of education has the right to place an employee on administrative leave pending an investigation and/or pending disciplinary charges being filed against an employee, the Commissioner said that, on this record, she found that the School Board’s actions constitute an unlawful suspension in the absence of the timely filing of disciplinary charges against Kavanaugh.  Accordingly, the Commissioner ruled that as the School Board did not act within a reasonable amount of time to prefer charges against Kavanaugh after removing her from teaching duties, “such removal must be deemed null and void and expungement is warranted.”

The Commissioner then directed “that any and all references to the January 14, 2014 placement of [Kavanaugh] on administrative leave and March 2, 2015 suspension be stricken from [Kavanaugh’s] records and personnel files [but that] nothing herein shall be construed as nullifying [the School Board’s] September 2, 2015 action to prefer charges pursuant to Education Law §3020-a."

* Kavanaugh did not challenge the §3020-a charges preferred against her by School Board on September 2, 2015 that were then the subject of the pending administrative hearing. 

** Kavanaugh also sought reimbursement of legal fees she incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the defendant Board members’ oath of office; that the Commissioner reprimand certain of the defendants; and the Commissioner order the School Board and the School Superintendent publicly apologize to her. The Commissioner indicated that she had no authority to provide such relief in an appeal pursuant to Education Law §310 were she to decide such relief, in whole or in part, was warranted.

*** The Commissioner dismissed that aspect of the Kavanaugh’s appeal that concerned the placement of a memorandum in her file pertaining to the assignments she was given while on leave and, or, suspension as untimely, explaining that Kavanaugh “commenced this appeal approximately three months after the issuance of the memorandum and offers no legal excuse for the delay.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume55/d16897

____________________

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html
____________________ 

  

Wednesday, April 27, 2016

Barbaralee Diamonstein-Spielvogel designated Chair of the New York State Council on the Arts


Barbaralee Diamonstein-Spielvogel designated Chair of the New York State Council on the Arts
Source: Office of the Governor

Governor Andrew M. Cuomo announced his designating Dr. Barbaralee Diamonstein-Spielvogel  Chair of the New York State Council on the Arts. Until now Dr. Diamonstein-Spielvogel served as Vice Chair.

The New York State Council on the Arts is dedicated to preserving and expanding the rich and diverse cultural resources that are and will become the heritage of New York’s citizens. The Council believes in supporting artistic excellence and the creative freedom of artists without censure, the rights of all New Yorkers to access and experience the power of the arts and culture, and the vital contribution the arts make to the quality of life in New York communities. NYSCA, serving all 62 counties, strives to achieve its mission through its core grant-making activity and by convening field leaders, providing information and advisory support, and working with partners on special initiatives to achieve mutual goals.

Throughout her career, Dr. Barbaralee Diamonstein-Spielvogel has served as a leading voice on civic and cultural engagement, having demonstrated a strong commitment to the arts, architecture, design, and public policy across New York City, New York State, and the country.

A former White House staff assistant, in 1966, she became the first Director of the New York City Department of Cultural Affairs. She later served as the longest-term Commissioner of the New York City Landmarks Preservation Commission from 1972 until 1987, and from 1987 to 1995, served as Chair of the New York City Landmarks Preservation Foundation. She has served as a member of the New York City Art Commission (now the Public Design Commission) and the New York City Commission of Cultural Affairs for more than a decade.

In 1987, she was appointed by President Reagan to the Board of the U.S. Holocaust Memorial Museum and in 1996 was appointed by President Clinton to the U.S. Commission of Fine Arts, where she later became the first woman to be elected as Vice Chair. In 2009, President Obama appointed her to the American Battle Monuments Commission.

Dr. Diamonstein-Spielvogel has served on the boards of a variety of educational, visual, literary, and performing arts institutions, including the Brooklyn Academy of Music, the Visiting Committee for Drawings at the Metropolitan Museum of Art; the Collection Committee of the Smithsonian Cooper Hewitt National Design Museum; the PEN American Center; the New York State Historic Archives Partnership Trust; and the Corcoran Gallery of Art in Washington, D.C. She is the founder and chair of the New York City Landmarks50 Alliance, and a founding member of the Highline, New York City, the Trust for the National Mall and the Museum of African Art in Washington, D.C.

Dr. Diamonstein-Spielvogel is the author of 23 books and the curator of eight international museum exhibitions. She earned her doctorate with high honors from New York University, and received honorary doctorates from the Maryland Institute College of Art, Longwood University, and the Pratt Institute.

Leaving employment without good cause will disqualify an application for unemployment insurance benefits


Leaving employment without good cause will disqualify an application for unemployment insurance benefits
Matter of Welsh (Commissioner of Labor), 2016 NY Slip Op 03042, Appellate Division, Third Department

One basis for disqualifying an applicant for unemployment insurance benefits is a determination that the individual left his or her employment without good cause.

Medina Welsh testified that in the course of her being considered for a promotion she submitted a falsified General Education Development certificate to the employer and then, “within minutes,” confessed the falsification to her supervisor. The supervisor warned Welsh that “she could be fired for such conduct.”Welsh then testified that she had submitted her resignation “because she did not want to have a termination on her record and hoped to be able to procure a job reference from the employer.”

The Unemployment Insurance Appeal Board denied Welsh's claim for unemployment insurance benefits and Welsh appealed the Board's ruling. The Appellate Division, however, sustained the Board’s determination, explaining that “quitting [one’s employment] in anticipation of discharge does not constitute good cause for leaving employment.”

Other court rulings sustaining the Unemployment Insurance Appeal Board’s denial of unemployment insurance benefits based on its finding that the claimant for such benefits did not leave his or her employment for good cause include:

Avoiding disciplinary action: Claimant’s election to accept the employer’s offer of an “early retirement package” instead of facing a scheduled disciplinary hearing for alleged misconduct, [Williams v NYC General Services, 256 AD2d 792].

Lack of valid license: The termination of a teacher from his or her position due to the lack of a valid teaching certificate did not constitute leaving one’s employment for good cause, [Matter of Duncanson (Commissioner of Labor), 115 AD3d 1106].

Harassment: Resignation from a position based on what the Appellate Division characterized as the employee's “perceived religious harassment” without first giving the employer an opportunity to investigate the matter, [Matter of Katz (Commissioner of Labor), 122 AD3d 993].

Job dissatisfaction: In Matter of Costello, 268 AD2d 845, the Appellate Division ruled that “dissatisfaction with one's employment, including assertions of being overworked, does not constitute good cause for leaving employment.”

Retirement incentive: Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment
[Rubscha (Commissioner of Labor), 105 AD3d 1217].

Personal reasons: Claimant’s reasons for submitting his resignation  were found to be "personal and noncompelling," [Quintana v NYC Police Department, 297 A.D.2d 857].

Dissatisfaction with employer's business operations: “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns,” [Matter of French v Town of Lyndon, 79 AD3d 1515].

Resigning in anticipation of a layoff: Leaving one’s employment in anticipation of being laid-off is not leaving for good cause for the purposes of claiming, unemployment insurance benefits, [Matter of Thesing (Commission of Labor), 111AD3d 1015]. 

Provoked discharge:  A finding that the employee provoked his or her dismissal. In Matter of Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885, the Appellate Division said that a "Provoked discharge . . . is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him [or her]."

Resignation to accept other employment:  Claimant had a valid offer of employment at the time he tendered his resignation but this offer of employment was subsequently rescinded by the prospective employer after it learned of Claimant’s arrest for “driving while ability impaired” and Claimant’s former employer would not allow him to withdraw or rescind his resignation, [Matter of Bennett (Commissioner of Labor), 106 AD3d 1359].

In contrast, leaving employment to relocate to another state in order to remain with one’s family typically will not disqualify an individual for unemployment insurance benefits,  [Rodriguez v Commissioner of Labor, 256 AD2d 768].

The Welsh decision is posted on the Internet at:

Tuesday, April 26, 2016

Ruth Hassell-Thompson appointed Special Advisor For Policy And Community Affairs of New York State Homes And Community Renewal


Ruth Hassell-Thompson appointed Special Advisor For Policy And Community Affairs of New York State Homes And Community Renewal 
Source: Office of the Governor

Governor Andrew M. Cuomo appointed Ruth Hassell-Thompson as Special Advisor for Policy and Community Affairs of New York State Homes and Community Renewal. She will begin her new role in July 2016.

Hassell-Thompson has served in the New York State Senate since 2000. She is also a former City Council President and Acting Mayor of Mount Vernon, having been first elected to the City Council in 1993. She is also a retired nurse for
Mount Vernon Hospital, specializing in pediatrics and substance abuse counseling and the founding President and CEO of “The Gathering,” a volunteer-staffed women’s center in Mount Vernon that provides counseling and support services, and has also worked extensively with individuals impacted by HIV/AIDS.

Prior to holding an elected office, she was President/CEO of Whart Development Company, Inc., a real estate development company that also provided consultant services to small and developing businesses. She was also the Executive Director of the Westchester Minority Contractors Association, helping to bring opportunities for growth and economic development to minority- and women-owned businesses in the region. Previously, she led the Westchester Community Opportunity Program, which provided medical, social and related support services to local residents in need.

Hassell-Thompson is the recipient of two Honorary Doctorate degrees; Mercy College, Doctor of Humane Letters; and Eastern Theological Consortium, Faculty of Arts and Sciences, Christ Theological Seminary, Doctor of Humanities. She is an alumna of Bronx Community College.

Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits


Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits
Cruz v Buffalo Bd. of Educ., 2016 NY Slip Op 03034, Appellate Division, Third Department

The New York State Workers’ Compensation Board requires that a claimant for benefits have “an attachment to the labor market” if he or she is seeking to receive partial disability benefits when he or she cannot perform the normal duties of his or her position but is able to perform other types of work.*

Such a claimant can maintain “an attachment to the labor market” by [1] making a diligent search for employment that he or she can perform notwithstanding the disability, [2] being employed in a position that is within his or her medical limitations such as working part-time or performing “light-duty” work or [3] self-employment. The entity paying the benefits may require the claimant to maintain appropriate records to demonstrate his or her “attachment to the labor market.”

The claim for workers’ compensation benefits filed by Edelmiro Cruz illustrates the application of the attachment to the labor market requirement.

Cruz, an assistant principal at a Buffalo City School District elementary school, suffered work-related injuries in May 2011 and was awarded workers' compensation benefits until he returned to work in August 2011. Cruz was terminated in February 2012 and subsequently applied for additional causally related lost earnings. The Buffalo City School District, a self-insured employer and its third-party administrator [Buffalo] controverted Cruz’s claim and raised the issue of his attachment to the labor market.Buffalo also alleged Cruz had made misrepresentations regarding his search for work.

A Workers' Compensation Law Judge denied benefits, finding that, due to a lack of a sufficient effort to find work, Cruz had voluntarily removed himself from the labor market. In addition, the Law Judge found that Cruz had made misrepresentations concerning his search for work and thus had violated Workers' Compensation Law §114-a. Cruz was disqualified from receiving further benefits.**

The Workers' Compensation Board, however, concluded that Buffalo had not submitted sufficient evidence to prove that Cruz had violated §114-a. Further, while the Board affirmed the Law Judge's determination that Cruz had voluntarily removed himself from the labor market following his termination, the Board also found that Cruz “had reattached to the labor market in February 2013.”

The Board restored the case to the calendar to address the issue of Cruz's reduced earnings subsequent to February 2013 and Buffalo appealed.

The Appellate Division affirmed the Board’s action explaining that "A claimant must demonstrate attachment to the labor market with evidence of a search for employment consistent with his or her medical restrictions" and the Board's determination as to whether a claimant has demonstrated an attachment to the labor market will be sustained if supported by substantial evidence.

In this instance medical evidence in the record indicated that Cruz, as a result of his injuries, could only sit or stand for no more than two hours a day and he could not lift more than 20 pounds. In addition Cruz had testified that [1] he began using the services of the Office of Vocational and Educational Services for Individuals with Disabilities [VESID] in January 2013; [2] he had obtained a part-time job at an auto parts store in February 2013, (and was working five hours a week at the time of his testimony); [3] he was training for a management position that offered more hours, and the store was willing to accommodate his "restrictions;" and [4] he was still searching for other work with a VESID job counselor.

Based upon the foregoing, said the court, the Board's decision that claimant had reattached to the labor market as of February 2013 is supported by substantial evidence.

Addressing Buffalo’s contention that Cruz made “a material misrepresentation in violation of Workers' Compensation Law §114-a,” the Appellate Division again said that the Board's determination with respect to this issue will not be disturbed if supported by substantial evidence.

Buffalo had relied on the report and testimony of a vocation counselor. The counselor testified that she had contacted 34 companies by telephone with which Cruz reported that he had filed an application for employment between February 2012 and February 2013. Although the counselor confirmed that two of the companies had received an application from Cruz, she also testified that 17 companies either did not respond or could not verify whether or not they had received an application and the counselor conceded that Cruz could have applied for employment with them.

Further, the Board noted that the counselor did not report the name of the individuals she had spoken with and concluded that, although Cruz had not presented sufficient evidence to establish that he had remained attached to the labor market during the period in question, there was a lack of credible evidence that he had knowingly made a false statement or misrepresented a material fact in order to obtain benefits.

As "the Board is vested with the discretion to evaluate witness credibility and to weigh conflicting evidence," the Appellate Division ruled that Board's decision that Buffalo had not met it burden of proof with respect to its allegation that Cruz’s violated §114-a of the Workers' Compensation Law was supported by substantial evidence.

* A claimant for workers’ compensation benefits temporarily totally disabled is deemed unable to perform any work and is not required to maintain “an attachment to that labor market” while so temporarily totally disabled. An individual found permanently totally disabled is not required to maintain an attachment to the labor market in any event.

** Workers' Compensation Law §114-a provides for the disqualification of an individual for worker’s compensation benefits in the event he or she has made a false statement or representation in applying for such benefits.

The decision is posted on the Internet at:

Monday, April 25, 2016

Failing to seek a court order staying an arbitration precludes the objecting party from subsequently contending that there was no valid agreement to arbitrate


Failing to seek a court order staying an arbitration precludes the objecting party from subsequently contending that there was no valid agreement to arbitrate
Ruiz v County of Rockland, 2016 NY Slip Op 02999, Appellate Division, Second Department

Carlos Ruiz was terminated from his position with the County of Rockland. Ruiz, through his employee organization, demanded that the matter of his termination be submitted to arbitration under color of terms set out in collective bargaining agreement (CBA) between the County and United Federation of Police Officers, Inc., Local 613, [Union], of which Ruiz was a member. 

Rockland did not apply for a court order staying the arbitration although it sent letters to Ruiz, the Union and the assigned arbitrator indicating that “it refused to participate in an arbitration proceeding.”  Following the County's refusal, Ruiz and the Union [Petitioners] commenced an Article 75 proceeding to compel the County to arbitrate Ruiz's termination grievance in accordance with the terms of the CBA. The Supreme Court granted the petition and the County appealed the court’s ruling.

The Appellate Division sustained the Supreme Court’s decision explaining that the County's “failure to apply to stay arbitration precludes it from now contending that the CBA does not constitute a valid agreement to arbitrate” the issue, rejecting the County’s argument that the disciplinary procedure outlined in the CBA does not entitle Ruiz to grieve his termination through arbitration. The issue of whether Ruiz's termination was a type of disciplinary action subject to arbitration under the CBA “is a matter of contract interpretation and application to be resolved by the arbitrator.”

Why it is necessary for a party to go to court to seek a stay of arbitration? If the partly refuses to participate in the arbitration and does not have the authority of the court in the form of a “stay of arbitration,” temporary or otherwise, the arbitration can proceed “in absentia” of the objecting party.

For example, in Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division ruled that an arbitrator [1] may proceed with a disciplinary arbitration notwithstanding the fact that the appointing authority refused to participate in the proceeding and [2] thereafter make a final, binding determination.  

The employer had boycotted the arbitration because, it contended, Hall was not entitled submit the matter to arbitration. The court upheld the arbitrator’s award in favor of the employee.

The same result obtains when a party refuses or fails to participate in an administrative proceedings. The decision of the Appellate Division, Third Department in Aures v Buffalo Board of Education, 272 A.D.2d 664, demonstrates this.

In Aures, the employer, the
Buffalo City School District, failed to appear at an unem­ployment insurance hearing as scheduled. The hearing officer proceeded to hold the hearing "in absentia" and awarded unemployment insurance benefits to Aures. Rejecting Buffalo's appeal challenging the award of benefits, the Appellate Division ruled that the administrative determination was binding on the parties.

The decision is posted on the Internet at:

Sunday, April 24, 2016

Reports recently issued by the Office of the State Comptroller


Reports recently issued by the Office of the State Comptroller
Click on text highlighted in color to access the entire report

Recent reports issued by the Office of the State Comptroller
Click on text highlighted in color to access the entire report

Special Education

The Unadilla Valley Central School District saved more than $300,000 in special education costs over a two-year period, according to an audit issued by New York State Comptroller Thomas P. DiNapoli.


School Audits issued

Campbell-Savona Central School District - Liquidating the accumulated deficit in the District’s general fund

Gilboa-Conesville Central School District – Internal controls to safeguard portable devices such as laptop computers, tablets and cameras






Friday, April 22, 2016

A probationary employee employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law


A probationary employee employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law
Johnson v County of Orange, 2016 NY Slip Op 02821, Appellate Division, Second Department

Supreme Court granted the Orange County Sheriff’s motion to dismiss Janine Johnson's Article 78 petition challenging her termination from her position while she was still serving her probationary period “for failure to state a cause of action.” Johnson had filed a “notice of appeal” that the Appellate Division deemed to be an application for leave to appeal, granted the “application” and then affirmed the Supreme Court’s ruling with costs.

The Appellate Division explained that a probationary employee “may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law." 

In addition, it should be noted that Rules promulgated by a civil service commission may set out administrative procedures and standards that control the termination of a probationary employee.* For example, in Scherbyn v Wayne-Finger Lakes BOCES, 77 NY2d 753, the Court of Appeals held that where the rules of a civil service commission specifically set out the reasons for which a probationary employee may be dismissed, the appointing authority's broad discretion with respect to terminating the services of probationers is subject to the limitations imposed by those standards. 

Further, as the court held in
Yan Ping Xu v New York City Dept. of Health and Mental Hygiene, 121 AD3d 559,  a  department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law. 

Another element to consider in the context of terminating a probationary employee is the "probationary status" of the individual. Case law indicates that a probationary employee may be terminated at any time after the completing his or her minimum period of probation prior to completing his or her maximum period of probation [see Gray v Bronx Developmental Center, 65 NY2d 904] unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. 


In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position [see McKee v. Jackson, 152 AD2d 54]. 

In Johnson's case the Appellate Division found that the allegations in her petition were insufficient to state a cause of action that her employment was terminated “in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.”

The Appellate Division also held that:

1. Johnson’s claims that the Orange County Sheriff's Office tolerated other relationships such as the one in which she was involved and did not have a formal anti-fraternization policy were inadequate to state a cause of action alleging that she was terminated in bad faith; and

2. Johnson was not entitled to a statement of the reason for the termination of her probationary employment, citing York v McGuire, 63 NY2d 760.

Accordingly, said the court, Supreme Court properly granted the appointing authority’s motion to dismiss Johnson’s petition.

* See, for example, 4 NYCRR 4.5(b) of the Rules of the State Civil Service Commission. Many local civil service commissions have adopted similar rules. 

The decision is posted on the Internet at:


Thursday, April 21, 2016

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct


Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct
Ronga v New York City Dept. of Educ., 2016 NY Slip Op 02921, Appellate Division, First Department

In an earlier decision, Ronga v New York City Department of Education, 114 AD3d 527, the Appellate Division sustained the findings of the Disciplinary Hearing Officer that Ronga, a probationary principal at a New York City public school, [1] improperly directed subordinates to create fabricated teacher observation reports and professional development plans for which he himself was personally responsible, and [2] submitted those reports and plans to the superintendent.  

That court, however, had dismissed certain other charges and specifications filed against Ronga on due process grounds, vacated the penalty of termination imposed by the Hearing Officer, and then remanded the matter to the Hearing Officer for consideration of the appropriate penalty to be imposed based on the surviving charges and specifications.

The Hearing Officer, in accordance with the Appellate Division’s directive, reconsidered the penalty to be imposed and reimposed the penalty of termination. Again Ronga appealed but this time the Appellate Division affirmed the penalty the Hearing Officer had determined – dismissal from the position.

The Appellate Division explained that “[d]espite [Ronga’s] long-standing work history and lack of prior misconduct, given the fraudulent nature of his misconduct, the fact that he coerced subordinates into being complicit in his malfeasance, and the fact that his misconduct deprived teachers of important observations and evaluations, the penalty of termination does not shock [its] sense of fairness.”

The decision is posted on the Internet at:
__________________________ 
Challenging Adverse Personnel Decisions - A 752-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://nypplarchives.blogspot.com/
__________________________

Wednesday, April 20, 2016

Reassigning individuals to perform duties alleged to be those of a position classified and allocated to a lower title and grade


Reassigning individuals to perform duties alleged to be those of a position classified and allocated to a lower title and grade
Alston v Bertoni, 2016 NY Slip Op 02897, Appellate Division, Third Department

As the result of a perceived increase in criminal activity, Village of Endicott Mayor John Bertoni, directed Endicott Police Chief Michael Cox to assign detectives to police patrol duties.

Chief Cox designated Detectives Scott Alston, Michael McEwan and James Surdoval to perform such police patrol duties.* As a result, these detectives "work[ed] part of [their] normal work week, during [their] normal work hours, in uniform on patrol." The detectives and their union, Endicott Police Benevolent Association, Inc., filed a petition pursuant to Article 78 of the CPLR challenging their patrol duty assignments. Supreme Court found that the assignments were permissible and dismissed their petition.

The detectives had contended that assigning detectives to patrol duty on a limited basis violated Civil Service Law §§58 and 75 by forcing them to perform work "beneath their rank and title" without a hearing,” appealed the Supreme Court's decision. The Appellate Division disagreed with the arguments advanced by the dectectives and sustained the Supreme Court’s ruling.

Initially the Appellate Division noted that the detectives had [1] been permanently appointed to their positions, and there is no dispute that they are entitled to "the higher salaried, preferred status of detective" and [2] they had held their positions as detectives for more than three years and thus they may "not be removed or otherwise subjected to any disciplinary penalty provided in [Civil Service Law §75**] except for incompetency or misconduct shown after a hearing upon stated charges."

With respect to any alleged violation of CSL §58, the court determined that the detectives had not been deprived of their detective positions as a result of their assignment to patrol duties nor was their pay or benefits as detectives adversely affected in any way by such an assignment. The court explained that “§58 only guarantees that the detectives will ‘be permanently designated as . . . detective[s] . . . and receive the compensation ordinarily paid to persons in such designation,’ its provisions are not implicated by the assignment here” challenged."

Significantly, the Appellate Division observed that it is well settled that [1] an employee's displeasure with a work assignment, absent an adverse impact on his or her civil service grade or title, salary or benefits, does not implicate Civil Service Law §75, citing Galatti v County of Dutchess, 64 NY2d 1163, and [2] the assignments of the detectives were within the sole discretion of "the appointing officer.”***

Finally, said the court, assigning the detectives to patrol duty on a limited basis was rational in light of the proof that residents of the Village were demanding a greater police presence to combat a perceived rise in lawlessness, demands that could not be met by hiring more patrol officers because of budgetary problems.

* A footnote in the Appellate Division’s decision refers to the job description for Detective, which included the provision that detectives are required to "[a]ssist Patrol Division concerning criminal cases," and that both detectives and juvenile division detectives must perform any "duties imposed upon them by … [s]pecial [o]rders and lawful orders of their [s]uperior [o]fficers."

** One of the penalties authorized by §75 is “demotion in grade and title.”

*** See Detective Endowment Assn., Police Dept., City of N.Y. v Leary, 36 AD2d 289, affirmed 30 NY2d 577

The decision is posted on the Internet at:

Tuesday, April 19, 2016

Accruing vacation and sick leave credits during leave for ordered military leave


Accruing vacation and sick leave credits during leave for ordered military leave
Andrews v State of New York, 2016 NY Slip Op 02895, Appellate Division, Third Department

An employee of the State as the employer absent from his or her position while on “ordered military duty,” is placed on military leave* from his or her position in accordance with provisions in the State Military Law and the Rules of the State Civil Service Commission. While on such military leave Rules of the State Civil Service Commission provided that the employee does not accrue vacation or sick leave credits unless he or she is "in full pay status for at least seven workdays during [the] biweekly pay period" during such absences for ordered military duty.**

A number of current and former employees [Claimants] of the State Department of Corrections and Community Supervision [Department], absent during various periods of ordered military duty, demanded that the Department credit them with the vacation and sick leave credits that they would have otherwise accrued had they not been absent on such ordered military duty. 

The Department ultimately denied there request and Claimants sued the Department seeking, among other things, a declaration that the denial of vacation and sick leave accruals during their respective periods of military leave violated both the Uniformed Services Employment and Reemployment Rights Act, 38 USC §4301 et sec, [USERRA]), and §242 of the State’s Military Law and sought a court order directing the Department to calculate and credit the amount of vacation and sick leave accruals that they would have otherwise earned but for their absences for ordered military service.

Supreme Court, concluding that [1] the State of New York did not waive its sovereign immunity with respect suit founded on alleged violations of USERRA; [2] that only those claims arising within the four-month statute of limitations applicable to CPLR Article 78 proceedings were timely; and, in any event, [3] the Claimants failed to state a cause of action.  In response to Claimant's appeal of Supreme Court's dismissal of  their petition, the Appellate Division affirmed the lower court’s ruling.

Reviewing of the applicable state and federal statutory and regulatory provisions, the court noted that, with respect to the relevant State law, rules and regulations:

1. An employee in state service "shall not earn" either annual or sick leave credits "for any biweekly pay period unless he [or she] is in full pay status for at least seven workdays during such biweekly pay period" (4 NYCRR 21.2 [b] [1]; 21.3 [b]).***

2. A state employee who is ordered to military duty is entitled to take a leave of absence for such purpose and, consistent with the provisions of Military Law §242 (5), is entitled to be paid his or her salary and other compensation for a specified number of days.

3. Upon the exhaustion of the military leave with pay authorized by Military Law §242(5), certain eligible state employees "shall be granted supplemental military leave with pay for a period or periods not exceeding a total of 30 calendar days or 22 working days, whichever is greater" (see 4 NYCRR 21.15 [a]; 4 NYCRR 21.16). Once that employee has exhausted those available options and, thus is no longer is on full pay status, he or she — consistent with the requirements imposed by 4 NYCRR 21.2 (b) (1) and 21.3 (b) — no longer accrues such credits.

With respect to federal law, the Appellate Division noted that:

1. USERRA prohibits an employer from denying a member of the uniformed services "initial employment, reemployment, retention in employment, promotion, or any benefit of employment" based upon, among other things, such member's performance of military service (38 USC §4311 [a]).

2. USERRA further provides that "a person who is absent from a position of employment by reason of service in the uniformed services shall be . . . deemed to be on furlough or leave of absence while performing such service . . . and . . . entitled to such other rights and benefits not determined by seniority as are generally provided by the employer . . . to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service" (see 38 USC §4316 [b] [1]; 20 CFR 1002.150 [a]).

3. Generally speaking, "accrual of vacation leave is considered to be a non-seniority benefit that must be provided by an employer to an employee on military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence" [emphasis supplied by the Appellate Division].

4. In the event "the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services" [emphasis supplied by the Appellate Division].

For purposes of determining whether two forms of leave are comparable, the Appellate Division said “consideration should be given to the purpose of the leave and the employee's ability to choose when to take the leave, with the duration of the leave being the most significant factor.”

Addressing Claimants’ allegations that the Department violated 38 USC §§4311(a) and 4316(b) when it denied them vacation and sick leave accrual credits during their respective periods of military duty benefits, the court said that Claimants contended were denied benefits provided to state employees on allegedly comparable leaves of absence. However, said the court, Complainants “did nothing more than assert in a conclusory fashion — and without reference to the allegedly applicable statutory or regulatory provisions — that such accruals and credits were ‘generally provided by the [s]tate . . . to such employees on [w]orkers' [c]ompensation [l]eave, jury duty, bereavement, and extended sick leave/[Family Medical Leave Act].’”

Further, the court noted that:

1. “[A]bsent from the petition was any evidence … that state employees who were absent from work due to one of the cited forms of leave did in fact accrue vacation and/or sick leave credits even if they were not ‘in full pay status for at least seven workdays during [the relevant] biweekly pay period;’” and

2. The Claimants’ petition did not set forth any factual assertions demonstrating that the leaves of absence they claimed were “comparable leaves of absences” -- workers' compensation, jury duty, bereavement and extended sick leave - are, in fact, comparable in terms of purpose and duration to the military/supplemental military leaves available to Claimants.

Absent such factual allegations, the Appellate Division ruled that Claimants' allegations of violations of USERRA cannot stand.

The court said it reached a similar conclusion with regard to Claimants’ allegations of violation of Military Law §242(4). 

Although §242(4) prohibits an employer from subjecting an employee on a leave of absence due to ordered military duty "to any loss or diminution of time service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence," the Appellate Division pointed out that “state employees on military leave/supplemental military leave (such as [Claimants]) are entitled to be paid for certain specified periods of time, and the parties do not dispute that such employees also may utilize certain accrued leave credits to extend their full pay status.”

While on full pay status, explained the court, "employees on leave for military service — like any other full pay status state employee — continue to accrue vacation and sick leave credits". However, "once employees on leave for military service exhaust their options to remain in full pay status, they — like all other state employees on unpaid leave — no longer accrue vacation and sick leave credits."

Finding that Claimants failed to demonstrate that they were treated differently than any other state employee on an unpaid leave of absence, the Appellate Division ruled that Supreme Court correctly concluded that Claimants failed to state a cause of action and properly granted the Department’s motion for summary judgment dismissing the Article 78 petition in its entirety.

* Military Leave is leave without pay except as otherwise provided by State law, rule or regulation.

** See 4 NYCRR 21.2[b][1]; 21.3[b]

*** Employees absent on leave for ordered military leave may elect, but may not be required, to use vacation, overtime and similar leave credits to remain on the payroll until such leave credits are exhausted.

The decision is posted on the Internet at:

Monday, April 18, 2016

Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law [OATH] Judges


Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law [OATH] Judges

Failure to report to work during a snow emergency
OATH Index No. 106/16

The New York City Department of Corrections filed charges alleging a correction office was absent without leave [AWOL] when the officer failed to report to work “during a snowstorm.” The Department had denied officer’s request for emergency leave, indicating that the officer “had notice of the storm and should have made other travel arrangements.”

The correction officer testified that she did not report to work during a snowstorm because [1] there was a travel ban in place and [2] she could not get her car out of her driveway.

OATH Administrative Law Judge Susan J. Pogoda dismissed AWOL charges against filed against a correction officer. Judge Pogoda ruled that, based on the evidence in the record in this disciplinary action, the Department had failed to failed to prove that the officer’s absence rose to the level of misconduct.

The decision is posted on the Internet at:


Failure to submit to a random drug test
OATH Index No. 806/16

A sanitation worker was charged with misconduct after he failed to submit to a random drug test when ordered to do so.

The worker had “called in sick on the morning of the test” after the testing unit personnel had arrived at his garage. He was then directed to report to the Department of Sanitation's clinic for drug testing that afternoon. He failed to appear at the clinic as directed.

OATH Administrative Law Judge Astrid B. Gloade ruled that the worker had failed to prove that he had been too ill to travel and recommended that the individual be suspended without pay for thirty days.

The decision is posted on the Internet at:


A co-worker’s demeaning behavior towards an employee charged with using expletives and a racial slur deemed sufficient to mitigate the penalty proposed by the appointing authority
OATH Index No. 801/16

The New York City Transit Authority filed disciplinary charges against an employee alleging that he had used expletives and a racial slur towards a co-worker. It sought to have  the penalty of termination from employment imposed if the employee was found guilty of such misconduct.

In the course of an investigation by the Authority’s Office of Equal Employment Opportunity [EEO], and at the disciplinary hearing, the co-worker admitted that he had repeatedly cursed at and used demeaning language towards the employee charged with misconduct.

ALJ Ingrid M. Addison explaining that “A preponderance has been defined as the burden of persuading the trier of fact to believe that the existence of a fact is more probable than its non-existence,” found that in this instance a preponderance of the evidence, including testimony of the co-worker and the investigating EEO officer at the disciplinary hearing, as well as documentary submissions, supported a finding that the employee had, indeed, used the racial slur and expletives.

However, said Judge Addison, the employee’s behavior was the result of his being subjected to a protracted period of insults and demeaning behavior based on his perceived disability and ethnic origin.

Noting that employee had no disciplinary record and was reacting to his co-worker demeaning behavior towards him, ALJ Addison found the the Authority’s request for termination to be disproportionate to the offense, given the circumstances and  recommended the employee be suspended without pay for 20 days, with credit for time served. In light of his 30-days pre-trial suspension. Accordingly, Judge Addison recommended that the Authority “restore” the employee to his job and reimburse him 10 days’ pay.*

The decision is posted on the Internet at:


Employee disciplined after threatening supervisors with physical harm
OATH Index No. 1099/16

OATH ALJ Noel R. Garcia sustained the disciplinary charges filed against an assistant manager [Manager] by the appointing authority that alleged she had made oral threats to two supervisors and had failed to follow a directive “to report directly to the Assistant Personnel Director at the Human Resources Office the day after the alleged [oral] threats were made.”

Manager, after an alleged theft of money from her purse, telephoned two supervisors and threatened physical harm in the course of her demanding to speak to a “higher-up because no one has followed through with her request to be transferred.” Administrative Law Judge Noel Garcia found that there was evidence that in the course of the telephone calls Manager stated that if this did not happen “she would have to get physical,” and “something to the effect of would fists have to fly before anything would happen.”

As both supervisors provided credible testimony consistent with contemporaneous written reports of the incident, Judge Garcia found Manager guilty of making the oral threats. The ALJ, however, dismissed the charge that Manager failed “to follow a directive,” finding that was an apparent miscommunication between a supervisor and manager and Manager did not intend to disregard the order. Judge Garcia explained that he found the relevant instruction given to Manager was “ambiguous” and that Manager “did not willfully refuse to obey” the directive.

Accordingly, Judge Garcia recommended that, under the circumstances, the appointing authority impose a penalty of a 30 day-suspension without pay.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1099.pdf

* Civil Service Law §75.3 provides that "that the time during which an officer or employee is suspended without pay may be considered as part of the penalty."


__________________________



Challenging Adverse Personnel Decisions A 752 -page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://nypplarchives.blogspot.com/
__________________________
 

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

The Disability Benefits E-book: - This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Readers may share material posted in NYPPL with others provided attribution to NYPPL is given.

Copyright© 1987 - 2016 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.