NYCTA Employee request for lump sum retirement payout denied

 After retiring with an investigation pending a NYCTA employee filed an Article 78 petition alleging that the NYCTA's decision denying a hearing about his request for a lump sum payout for his time on the books was improper.  The court determined that the employee was not entitled to a hearing because he held a non-competitive class title which was classified as confidential or policy-making and New York State Civil Service Law does not guarantee disciplinary hearings for these titles.  Furthermore, the decision was not arbitrary nor capricious.  Read about this New York State Civil Service Law case. 

Off-duty NYPD Detectives use of force found not actionable

 An off-duty NYPD detective fired his weapon at a vehicle but the driver was not struck nor harmed. The officer and City were found not liable after trial.

The Appellate Division, First Department affirmed the lower court's ruling that the verdict for the defendant's should not  be set aside.  The NYPD patrol guide states that deadly force should only be used against the occupants of a moving vehicle are using deadly force against the officer of others by means "other than the vehicle." 

The reviewing court held that the detective was justified in the use of force because he fired two shots before the driver drove the vehicle towards the same detective almost hitting him. The decision of the Firearms Discharge Review Board that the detective violated the Patrol Guide was not a precedent for the negligence trial in Supreme Court.   Read about this NYPD negligence case

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CSEA forces arbitration before termination

 Nikki is handled by the law William Scoma civil-service employees Association was able to convince the second department Appellate Division to afford and employee who was terminate arbitration prior to the termination. The Freeport Housing Authority playing employee was probationary employee. The agreement indicated under the collective bargaining agreement that probationary employees served between 26 weeks. Cheryl Scott employee in question answered for one year. Accordingly the court held that Ms. Scott entitled to an arbitration prior to termination you can read about this service civil-service discipline case by clicking here.

to see cases and information about Long Island DWI defense click here.

Teacher's Improper Enrollment of granddaughter does not warrant Termination

 In a case handled by the  Law Office of Glass & Krakower an arbitration award was reversed and  but one portion of the arbitrator’s determination was  affirmed.  The facts underlying this case were:  a Public School Teacher enrolled her granddaughter in a school whose geographical  district the child did not reside in.  The arbitrator recommended termination of the employee.  On appeal it was found that the child was a City resident and accordingly was entitled to a tuition- free education.  The final determination of the appeals court was that the teacher had filed a false instrument but the penalty of termination was inappropriate and this case was sent back to the lower court to impose a lesser appropriate penalty.

Teacher's Contract Protest Protected by 1st Amendment Free Speech

 East Meadow school district fined Richard Santer $500 after he parked his car at the curb and placed his contract protest sign in the car window on a rainy day.  On other days the teachers protesting for a better contract walked on the sidewalk in front of the school.  East Meadow School District filed charges pursuant to Education Law Section 3020a.

The Second Department held that review under Section 75 is broad and requires: 1) the arbitrator's determination display good faith under the law and in the record and 2) the determination must not be arbitrary and capricious.

The arbitrator found that Santer "intentionally created a health and safety risk by purposely situating his vehicle alongside the curb of Westwood Drive prevented the school buses from dropping the kids off at curbside.  The arbitrator sided with the school district and found Santer culpable.  The Supreme Court, Nassau County confirmed the determination after Santer filed a CPLR Section 75 appeal.

The Appellate Division, Second Department reversed and held that Santer had a protected First Amendment right to protest because contract rights are a "matter of public concern."

Read about this 3020-a and CPLR 75 case here.

 

Suspension due to unauthorized electronic device! (Dep't of Correction v. Blount)

          Respondent, a Corrections Officer was found guilty of bringing a Nook Wi-Fi Reader into a prohibited area of the inmate facility at the Rose M. Singer Canter.  Respondent admitted to her wrong doing immediately when Petitioner found the item that was not permitted in the facilities.  Respondent alleged that she had grabbed the wrong shopping bag from her locker, and hid the bag that contained the unauthorized item behind a garbage bag.  Petitioner claimed she had a good track record and had not been any trouble before that incident.

          Following her conversation with senior members at the facility, she was immediately suspended pre-hearing for fifteen days suspension without pay.  The Administrative Law Judge recommended she be suspended for 10 days.  Given that she had already been charged with fifteen days it was recommended she be credited with the extra five days pay.

          It was recommended that due to Respondents clean disciplinary record and her overall acceptance of responsibility that a penalty suspension of ten days without pay is appropriate, and because Respondent was immediately suspended without pay for fifteen days, that the Department credit her five days pay.

Read about this New York City Corrections Officer discipline here.

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Teacher Appeal of Hearing Officer's Decision Denied

Matter of Luft v New York City Bd./ Dept. of Educ.

 

Petitioner pursuant to CPLR 7511. 

            I. Background

Petitioner began employment in Brooklyn, 1987 as a pre-kindergarten teacher by respondent New York City Department of Education.  After an incident on May 10, 2008 petitioner was “charged with conduct unbecoming her position, conduct, prejudicial to the good order, efficiency, or discipline of the service, and endangering the welfare of a child.”  This was in response to petitioner’s responsibilities concerning a child’s release at dismissal.  The hearing officer “declined to terminate petitioner, finding that while it is (her) responsibility . . . to make sure her students are properly dismissed to the appropriate caregivers, the failure of the school to provide (her) with a substitute paraprofessional mitigates (her) culpability for the incident.”  However, petitioner was ordered to pay a fine of $1,000 for failing to ask for help during the end of the day procedures. 

            II. Contentions

Petitioner sought to prove that the hearing officer’s decision was not proper in accordance with CPLR 7511.

            III. Analysis

Petitioner was unable to prove that the hearing officer’s decision was based on corruption, fraud of misconduct.  The petitioner’s allegations of bias of the hearing officer were denied.  Petitioner contends that the New York City Board of Education did not vote on the above situation, that the hearing officer overstepped her position.  That in accordance to Education Law 3020-a(2)s, “the Board must vote on charges against a teacher to determine “whether probable cause exists to bring a disciplinary proceeding against (her) pursuant to this section.”” But, Education Law 2590-h(38) allows for the Chancellor and then community superintendents to “duties and responsibilities of the (Board).”  Hearsay is permitted therefore, the hearing officer reached her decision within allowance.  Hearing procedures and timeliness were also followed.  It was found that the award imposed was supported.  The petitioner’s argument that the hearing officer needed K.Z.’s testimony are without substance since the petitioner did not show how this addition would change the conclusion.  Lastly, the adequate punishment was inflicted as to the petitioner’s involvement in the event.  The petitioner displayed a lack of proposed help during the time of dismissal, and therefore, in part, responsible for the event. 

            IV Conclusion

The petition for an order to vacate the award was denied. 

 

NYC Tenured Teachers Petition to Expunge Letters of Reprimand Denied

In the Matter of Helen Hickey v. New York City Department of Education

In the Matter of Rachel Cohn v. New York City Department of Education

Petitioners Helen Hickey and Rachel Cohn are two tenured teachers who seek to have “letters of reprimand” removed from the personnel files for failure to follow Education Law § 3020-a procedures by filing an Article 78 petition against the Board of Education.

For Petitioner Hickey, the letters of reprimand placed in her file stated that she demonstrated incompetence and “unsatisfactory professional attitude” when preparing students for a field day. For Petitioner Cohn, the letter was a complaint filed with the Department of Education’s Office of Equal Opportunity. The complaint was in regards to a heated discussion with the principal, where Cohn told her to watch her “Latin temper.” The letters of reprimand was placed in both Petitioners’ file in 2008 and indicated that it “may lead to further disciplinary action.”

Respondent maintains that the letters were appropriately placed in their files according to the 2007-2009 Collective Bargaining Act (CBA). According to the 2007-2009 CBA, Petitioners’ union waived the section 3020-a procedures, allowing the letter of reprimand in tenured teacher’s filed and replaced it with a different procedure stated in Article 21A.

Supreme Court granted the petitions and ordered the letters be expunged from the Petitioners’ files. However, the Appellate Division reversed the decision and denied the petition.

According to Section 3020, “a CBA negotiated between respondent and the United Federation of Teachers, petitioners’ union, can modify or waive the 3020-a procedure.” The Supreme Court agrees that Article 21A of the 2007-2009 CBA states the procedure directing the placement of reprimands letter in tenured teacher’s files. Article 21A is broad provision that clearly states procedures for letters of reprimands and the issue in these two cases fell within the purview of Article 21A.

The Supreme Court concluded that the union knowingly waived the procedural rights granted in Education Law § 3020-a. Therefore the letters of reprimand are not subject to 3020-a procedures and Petitioners are not permitted to have them expunged.

For both cases, the Order is affirmed, with costs.

Read more about this Article 78 case here.

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Petition Against OCA Transferred to Appellate Division for to Determine if Termination is Supported by Substantial Evidence

In the Matter of John Dickinson v New York State Unified Court System, Office of Court Administration

Pursuant to Article 78, Petitioner, John Dickinson, seeks to annul the determination of Respondent, Office of Court Administration (OCA), to terminate Petitioner.

John Dickinson, Petitioner, was an Associate Court Clerk for OCA. He was terminated from his position on May 24, 2010 due to charges of excessive absence from work and excessive lateness. A written Report and Recommendation dated April 24, 2010 was submitted by Deputy Chief Administrative Judge Joan B. Carey. According to the Report, “…pattern of excessive absence and latenesses demonstrates in crystal clear fashion his [Petitioner] lack for fitness in this job title.”

Petitioner sought to annual OCA’s decision to terminate him because the Administrative Judge took into consideration additional time sheets that were submitted in OCA’s Brief but not presented at the hearing. Petitioner contends that this was a “manifest violation of due process” and that the penalty of termination was cruel. Petitioner also “…argues that the questions presented here is where there was substantial evidence in the record to support the Report, so as to require that this petition be transferred to Appellate Division, First Department, for consideration under CPLR 7804(g).”

CPLR 7804(g) states that issues of substantial evidence raised in a hearing are required by law to be transferred to the appellate division and “…Article 78 prohibits the Supreme Court from reaching the issue of whether an agency determination is supported by substantial evidence,” and requires the petition be transferred to the Appellate Division.

The Judicial Hearing Officer had an abundance of documentation as to petitioner’s transgressions, therefore the additional documents submitted after the hearing did not really play any part in the decision of termination. So, “the only matter before this court is whether the JHO’s determination that petitioner was excessively absent or late so at to warrant the penalty of termination, is supported by substantial evidence.

Therefore, it is ORDERED that this issue be transferred to the Appellate Division, First Department, for review and determination.

Read more about this Article 78 case here.

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Police Discipline hearings open to the public

From the New York Public Personnel Law written by Harvey Randall:

Disciplinary hearings involving police officers are open to the public

 
Disciplinary hearings involving police officers are open to the public 
Matter of Doe v City of Schenectady, 2011 NY Slip Op 03694, Appellate Division, Third Department
 
The City of Schenectady appealed an order and judgment of the Supreme Court Judge Barry Kramer that among other things, ”permanently enjoined” Schenectady from permitting the public to attend disciplinary hearings involving City of Schenectady police officers.* 
 
In response to Schenectady’s Public Safety Commissioner Wayne E. Bennett advising the City Council of his plan to modify the City's police disciplinary process notwithstanding the disciplinary procedures set out in the collective bargaining agreement between the City and the Schenectady Police Benevolent Association (SPBA), SPBA filed an improper practice charge against the City with the Public Employment Relations Board (PERB).
 
The City filed its own improper practice charge against SPBA with PERB, asserting, that SPBA had impermissibly sought to negotiate disciplinary proceedings, which the City contended was a prohibited subject of collective bargaining.
 
Bennett issued a general order setting out the new disciplinary proceedings policy providing, among other things, that such proceedings would in the future be governed by Second Class Cities Law §137, pursuant to which Bennett would be the sole trier of fact and the formerly-confidential disciplinary hearings would be open to the public.
 
Subsequently SPBA filed an amended improper practice charge alleging that the parties' collective bargaining agreement governed disciplinary procedures and could not be unilaterally modified by respondents.
 
While the City's and SPBA's charges were pending before PERB, two police officers, James Roe and John Doe, were each served with a notice of discipline and advised that, pursuant to Second Class Cities Law §137, the City would be conducting public hearings with respect to those disciplinary charges. SPBA’s petition set out two causes of action:
 
1. Pursuant to Civil Rights Law §50-a and Public Officers Law Article 6-A, Roe and Doe were entitled to declaratory relief in that police disciplinary hearings must be confidential; and
 
2. The City’s "unilateral use of public hearings . . . in connection with [police] disciplinary proceedings [was] in excess of [the City’s] jurisdiction, illegal and contrary to law, in violation of lawful procedure and the [D]ue [P]rocess [C]lauses of the State and Federal Constitutions and [was] arbitrary, capricious and an abuse of discretion."
 
Ultimately Supreme Court ruled that Civil Rights Law §50-a superseded Second Class Cities Law §137 and that the legislative intent of §50-a would be thwarted by public disciplinary hearings.
 
The Appellate Division, in vacating Judge Kremer’s ruling, said that “individual police officers possess no private right of action for claimed violations of Civil Rights Law §50-a and for this reason alone the petition/complaint should have been dismissed to that extent.
 
Commenting that §50-a provided an exemption of document that might otherwise be disclosed pursuant to Freedom of Information Law (Article 6, Public Officers Law) but noting in that section “mentions the word disciplinary hearing, let alone requires that such hearings be held in private and we discern no import from this omission other than the obvious — that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended.”
 
Citing Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, affd 67 NY2d 562, the Appellate Division said that the legislative history of §50-a indicates that the "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination."
 
Concluding that SPBA failed to state a cause of action or legally cognizable claim, the Appellate Division said that “Supreme Court erred in denying [Schenectady’s] cross motion for dismissal of the petition/complaint.

The court, however, declined to divest PERB of its exclusive jurisdiction over the improper practice charges, including whether police disciplinary matters are a prohibited subject of negotiations.
 
On this last point, it could be argued that negotiating alternative disciplinary procedures to those provided by law is a permissive rather than a mandatory subject for collective bargaining.
 
Civil Service Law §76.4, provides: 4. Nothing contained in section seventy-five or seventy-six of this   chapter shall be construed to repeal or modify any general, special or   local law or charter provision relating to the removal or suspension of   officers or employees in the competitive class of the civil service of   the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state** and an employee organization pursuant to article fourteen of this chapter. [Emphasis supplied] Where such sections are so supplemented, modified or replaced, any   employee against whom charges have been preferred prior to the effective   date of such supplementation, modification or replacement shall continue   to be subject to the provisions of such sections as in effect on the   date such charges were preferred.
 
Accordingly, the use of the word “may” suggests that either party negotiating a collective bargaining agreement could decline to negotiate an alternative to a statutory disciplinary procedure but may elect to do so, making any demand for an alternative to a statutory disciplinary procedure a permissive subject of collective bargaining within the meaning of the Taylor Law.
 
* In a disciplinary action taken against an employee pursuant to Section 75 of the Civil Service Law the court ruled that the hearing could not be closed to the public unless the accused employee agrees or requests that the proceedings be held privately [See 74 Misc.2d 315]. With respect to disciplinary procedures initiated pursuant to §3020-a of the Education Law, 8 NYCRR 82-1.9, “Demand for public hearing,” provides that [u]nless the employee notifies the hearing officer at least 24 hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. The prehearing conference shall be private.” §3020-a, however, is silent with respect to “a public hearing.” Presumably 8 NYCRR 82-1.9 was adopted pursuant to the authority vested in the Commissioner of Education by §3020-a.3.c, which provides that “The commissioner of education shall have the power to establish necessary rules and procedures for the conduct of hearings under [such] section.”
 
** Although it could be argued that the use of the word “State” limits the negotiation of alternative disciplinary procedures to the State and employee organizations representing State workers, in practice alternatives to statutory disciplinary procedures have been negotiated by political subdivisions of the State and employee organizations representing employees of such political subdivisions for decades.
 
The decision is posted on the Internet at: 
 
 

Two Separate Article 78 Petitions Filed to Overturn a Special-Use-Permit Ruling in Russia, NY

Both parties have started separate legal proceedings to have the Town Land Use Board of Appeal decision thrown out. The Land Use Board of Appeals determined which ruled that the “addition of an asphalt batch plant to a nonconforming quarry is an expansion of mining and requires a special use permit from the Planning Board of the town of Russia.” 

The first petition was filed in early March by 14 residents living near the proposed asphalt plant. The “citizens’ petition” is requesting the court prevent the town planning board from making a decision based on the appeals board’s determination. Also, they are requesting that Respondents, Material Sand and Troy Sand and Gravel, be prohibited from constructing and operating a plant there.

The second petition, “the company’s petition,” was filed on behalf of Material Sand and Troy Sand and Gravel requesting that the Land Use Board of Appeals’ decision be dismissed due to “pre-existing nonconforming use consisted not only of ‘mining’ bt also related aggregate product manufacturing” and for the court to allow the construction of an asphalt plant without the issuance of a special use permit.

Read full article here.

Correction Officer Receives 60 Days Suspension for Excessive Use of Force

In the Matter of Department of Correction v Stanley Saint-Phard

In this disciplinary proceeding, pursuant to Article 75 of the Civil Service Law, Respondent, a Correction Officer, allegedly used impermissible force against an inmate by dispersing a chemical agent in the inmate’s face and also placed the inmate in a chokehold.

On October 16, 2008, Eric Smith, an inmate at George Motchan Detention Center was mopping up an area near the A station. Respondent entered the area and asked Smith to return to his cell. After some conversation between the two, Respondent dispersed oleoresin capsicum (“OC”) spray towards Smith’s face. Then Smith began to leave the room when Respondent grabbed him and walked him to the front of the A station wall. Smith began to remove one of his hands from the wall when Respondent brought him to the ground and restrained him.

There were several testimonies by witnesses, but the crucial evidence in this case was the videotape of the incident. The videotape did not have sound, but it depicts that Smith’s hands were behind his back when Respondent used the OC spray within a the three feet radius and is also shows that Respondent’s left arm was around Smith’s neck and he maintained that hold while forcing him to the floor.

First, the video evidence showed that Smith was compliant and not aggressive immediately prior to being sprayed and contradicts Respondent’s written statement. Respondent use of the OC spray was prohibited under the Directive 4501R-E. Directive 4501R-E states that “that dispersal of hand-held chemical agents is authorized to defend oneself, another employee, inmate or visitor, to maintain the safety and security of the facility, or to enforce Department rules where necessary to promote the good order and safety of the facility.” Also, Respondent use of the OC spray was impermissible because the directive states that use the spray in less than three feet away from the intended target because spraying the OC spray in close range can cause severe eye and skin irritation or other injuries.

Second, Respondent’s written statement he maintained that he put Smith in an upper body control hold. However, in. the videotape showed that Respondent pushed Smith up against the wall and then put his arm around Smith’s neck. Directive 5006R-C § V (C) prohibits the use of the chokehold except in situations where there is deadly physical force. According to Directive 5006R-C § V (C), you are allowed to use deadly physical when there is no other reasonable alternative to stop or prevent an escape, or when an officer must “defend him/herself of another person from what he/she reasonably believes to be the use or imminent use of Deadly Physical Force by the inmate.” Respondent’s use of the chokehold was unnecessary and is constituted as excessive force.

Lastly, Respondent written statement and use of force report was false and misleading and he submitted the report approximately eleven days after the incident, on October 27, 2008. When an officer is in a use of force incident, a report must be submitted before leaving the facility on the day of the incident. The only exception to this is if you are injured than the use of force report can be submitted at a later time. Respondent claimed that he sustained an injury during the use of force incident and was immediately taken to the hospital. Respondent acknowledges that he may have been back to work before October 27, but cannot provide any plausible reason as why he did not submitted the use of force report earlier.

The Administrative Law Judge has come to the following conclusions: (1) although there was no evidence of actual choking, the use of pressure around someone’s neck can potentially cause serious or even fatal consequences; (2) the use of the OC spray at a close range is also dangerous because of the risk of retinal damage with a pre-existing condition; and (3) submission of a late and misleading use of force report is wrong. Due to Respondent have no prior disciplinary record during his five years as a Correction Officer, it is recommended that Respondent be suspended for 60 days.

Read more about this case here.

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Arbitration Award Vacated Due to Failure to Consider Whistleblower defense

Kowaleski v. DOCS

The Court of Appeals recently overturned an arbitrator's award:

The Court reported that:

In 2002 Barbara Kowaleski a CO assigned to Hale Creek observed another CO use excessive force against an inmate and refused her sergeants request to sign a report that the inmate had assaulted the officer.  Thereafter, Kowaleski was the victim of continual harassment.

When Kowaleski received charges the case was referred to an arbitrator.  The arbitrator refused to consider her "Whistleblower" defense.  NY Civil Service Law 75-b [3] [a] states: "the merits of such defense shall be considered and determined as part of the arbitration awardd or hearing officer decision." The Court of Appeals cited Matter of Obot v DOCS (where employee did not raise Whistleblower defense)

Read more about this NY whistleblower case.

NY Public Personnel Law on Whistleblower case

 The always informative NY Public Personnel law blog on a recent whistleblower case:

Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award

 
Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award

Matter of Kowaleski v New York State Dept. of Correctional Servs., 2010 NY Slip Op 09379, Decided on December 21, 2010, Court of Appeals

Barbara Kowaleski, a correction officer employed by the New York State Department of Corrections, was served with disciplinary charges alleging that she violated provisions of the employees' manual on three separate occasions when she "made inappropriate comments of a personal nature about another staff member in the presence of staff and inmates"; argued with a fellow employee; and was "disrespectful and insubordinate" when she ignored a superior's order.
The proposed penalty: termination and the loss of any accrued leave.

Ultimately the matter was submitted to a disciplinary arbitration.

At the outset of the hearing, Kowaleski argued that the disciplinary action was only being brought to retaliate against her for reporting a fellow officer's misconduct and that she was entitled to raise this as an affirmative defense pursuant to Civil Service Law §75-b, contending that §75-b prohibits public employers from retaliating against employees for reporting their coworkers' improper conduct.

The arbitrator determined that because the Collective Bargaining Agreement [CBA] limited his authority "to determinations of guilt or innocence and the appropriateness of proposed penalties," he lacked authority to consider Kowaleski's retaliation defense. The arbitrator, however, indicated that he would consider evidence of retaliation when determining witness credibility and "in the larger context of guilt or innocence."

The arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate and Kowaleski filed a petition pursuant to Article 75 of the CPLR seeking to have the award vacated.

Although Supreme Court and the Appellate Division rejected Kowaleski’s appeal, the Court of Appeals reversed the lower courts’ rulings “[b]ecause we find that the arbitrator's failure to separately consider and determine Kowaleski's affirmative defense of retaliation on the merits requires the award to be vacated”

The Court of Appeals explained that an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made (see CPLR 7511 [b] [1] [iii]). Further, said the court, an arbitrator "exceed[s] his power" under the meaning of the statute where his "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

As the lower courts found, and Correction conceded, the arbitrator “not only had authority to consider Kowaleski's retaliation defense, but was required to do so.”

Further, the opinion indicates that Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting "improper governmental action" and in the event the employee reasonably believes disciplinary action would not have been taken “but for" the whistle blowing, the employee may assert such as a defense before the designated arbitrator or hearing officer."

Whatever the terms of the CBA, the Court of Appeals said that
"[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision." Further, should the arbitrator or hearing officer find that the disciplinary action is based “solely on the employer's desire to retaliate,” the disciplinary proceeding must be dismissed.

Accordingly, the arbitrator's finding that he did not have authority under the CBA to consider Kowaleski's retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the court ruled that the award must be vacated.

Finally, the Court of Appeals noted the Kowaleski has requested that any rehearing be before a different arbitrator. That request, said the court, should be ruled on by Supreme Court in the exercise of its discretion.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09379.htm
 

Court Confirms Petitioner's Termination for Misconduct.

Court Confirms Petitioner’s Termination for Misconduct.

Matter of Gibbons v. New York Unified Ct. Sys., Off. of Ct. Admin.

In this Article 78 case, Petitioner, Grace Gibbons, sought review of Respondent’s decision that found her guilty of incompetence and misconduct and terminated her employment.

Gibbons was a court reporter for the District Court in Nassau County for approximately 22 years. In May 2007, Respondent served Gibbons with a notice of disciplinary charges. At the hearing, the Office of Court Administration (OCA) stated that Petitioner was insubordinate to supervisors and a District Court Judge, failed to produce transcripts in a timely matter, and was excessively absent without sufficient notice, which left the District Court short notice to find a replacement.

In December 2008, the hearing officer recommended that Petitioner be terminated from his position. A few months later, on February 4, 2009, the Deputy Chief Administrative Judge found the Petitioner guilty of the misconduct and incompetent in at least 20 specifications. Thereafter, Gibbons was terminated.

In an Article 78 proceeding, the Appellate review is limited to whether that determination was supported by substantial evidence. Substantial evidence is defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” and “[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists.”

The Appellate Division found that the decision was supported by substantial evidence and the penalty of termination did not shock one’s sense of fairness.

The determination was confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Read more about this Article 78 case here.

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Retirement Benefits Denied Due to Substantial Evidence Presented by New York State

Retirement Benefits Denied Due to Substantial Evidence Presented by New York State

In the Matter of Stephen C. Caruana v. Thomas P. DiNapoli, as Comptroller of the State of New York, et al..

Petitioner, Stephen C. Caruana, sought to review a decision of Respondent which denied his application for accidental disability retirement benefits.

In March 2006, Petitioner, a police officer, applied for accidental disability retirement benefits. Caruana claimed that he was permanently incapacitated due to neck and back injuries that were a result of three work-related incidents. Initially, his application was denied and petitioner requested a redetermination, therefore, a hearing was held. The Hearing Officer concluded that Petitioner “…failed to establish that such incapacity was caused by either 1987 incident or the 2003 incident, resulting in the denial of his application, an Article 78 followed.

The Appellate Division stated that the Petitioner has the burden of proving that his injuries were the results of the alleged incidents and in deciding whether Petitioner has fulfilled this burden, Respondent is entitled to produce “…conflicting medical evidence and to credit the opinion of one expert…” over the other.

In 2007, Petitioner had an orthopedic surgeon perform a spinal fusion surgery who agreed that Caruana condition was related to the 1987 incident and a chiropractor who agreed that his disability is related to the 1987 and 2003 incidents. Respondents brought in a board certified surgeon, Austin Leve, to examine Petitioner and review his medical records in August 2006. Leve concluded that Caruana’s injuries were not significant enough of an injury to permanently incapacitate him.

The court concluded that Respondent’s decision was supported by substantial evidence. Therefore the decision was confirmed, without costs and the petition is dismissed.

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Court Officer Terminated for Acts of Misconduct

In the Matter of Thomas Hughes v. New York Unified Court System, Office of Court Administration.

Pursuant to Article 78, Thomas Hughes, Petitioner, sought to review a decision of Respondent which adopted the recommendation of a hearing officer, who found that “…the petitioner engaged in acts of misconduct and incompetency prejudicial to the good or and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court officer…,” which resulted in his termination.

In February, 2007, Respondents filed administrative charges against Petitioner. Hughes requested a hearing, where a hearing officer found that Petitioner had accelerated his vehicle “...while it was in close proximity to his supervisor as the supervisor was entering a crosswalk, reported late for duty several times, was repeatedly insubordinate to several supervisors, failed to keep his uniform in proper condition, failed to keep his weapon properly loaded, and kept an impermissible metal-jacketed round in his weapon, which was capable of piercing courthouse walls.

In October of the next year, the Office of Court Administration ordered that Petitioner be terminated from his position. By February, 2009, Hughes filed this appeal. According the Appellate Division, an administrative decision made after a hearing mandated by law is limited to whether that decision is supported by substantial evidence. Substantial evidence “…relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact…”

The court concluded that the decision was support was substantial evidence and that the penalty of termination of employment is not disproportionate to the misconduct as to shock the conscience.

The petition was denied and the proceeding was dismissed with costs.

Read more about this Article 78 case here.

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Town's Article 78 Regarding Road Denial Dismissed

 

In the Matter of Eastern Oaks Development v Town of Clinton, et al.

In this Article 78 case, petitioner, Eastern Oaks Development, asked the court to review a decision of Clinton where petitioner was denied their application to have its road accepted for dedication by the Town of Clinton.

In 2005, petitioner applied with the Town of Clinton Planning Board for approval of a residential subdivision that contained eleven lots. Petitioner stated they did not intend to builds any homes on the lots and that it was up to the purchasers to build their own homes. A few months later, the Planning board granted the application for conditional final approval for the Subdivision. Planning Board stated that at least eighty percent of the construction must be done in the Subdivision in order for formal acceptance of the roads.

The Town Engineer wrote a letter to the Board pleading that they disapprove the road based on the fact that there was not eighty percent of construction done in the Subdivision. The Planning Board took this into consideration and declined  acceptance of the road stating that the Town Board disapprove of the dedication “…until there are sufficient houses constructed on the subdivision parcels.”

Petitioner, then commenced this Article 78 proceeding alleging the following: (1) the Town was aware that in order to attract potential purchasers it was necessary for the Town and Town Board to accept the dedication of the road; (2) before an actual vote took place, the Town Board already determined that they were going to decline the acceptance of the road by the influence of Budd, who had a interest of conflict; (3) Budd and the Town Engineer were good friends and they “collaborated and conspired to thwart the perfunctory approval of the road…”; (4) after a dispute between Eastern and Budd, Eastern has a dispute with the Town Engineer “... over baseless charges and has been advised that same threatened the Subdivision."

The Court denied the Town Parties motion to dismiss holding that Budd, although recused from the vote could have influenced it.

Read more about this Article 78 case here.

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NYPD Prior Probationary Service Counts Upon Reinstatement

NYPD Prior Probationary Service Counts Upon Reinstatement

Ward v  Kelly

Petitioner, Michael Ward, sought to annul a decision of the NYPD, to terminate him as a Probationary Police Officer on March 11, 2009.

In July 2006, Petitioner was originally appointed as a probationary police officer. Approximately nineteen months later, Ward resigned from his position in order to join the New York City Fire Department and less than a month later, on February 13, 2008, he resigned from the Fire Department and reapplied to the NYPD on the same day.

When Petitioner reapplied to the NYPD, he was required to sign a document called “Police Officer Terms of Probation,” which states that he was informed that there will be a twenty-four month probationary period. On February 21, 2008, Ward was appointed as a Probationary Police Officer. Upon appointment, Petitioner alleges that his probationary period would only last thirty-two days because he had started his probationary period on his initial appointment into the NYPD.

In December 2008, Petitioner was arrested for assault, menacing and harassment. Eventually, the charges were dropped, but as a Probationary Police Officer, Ward was terminated from the NYPD.

Petitioner argues that his initial probationary period should have been counted towards the two year probationary period, which ended in August 2008. Therefore, this would entitle Ward to a disciplinary hearing before his termination because he was no longer a Probationary Police Officer.

According to the Personnel Rules and Regulations of the City of New York, when “…a probationary employee has been separated from service, for any reason other than fault or delinquency, and is thereafter re-appointed by the same agency, the length of his prior probationary term shall be deducted from his current probationary term.”

The petition was granted and the decision terminating petitioner was vacated and rescinded. Petitioner will also be subject to such other disciplinary procedures applicable to him as a non-probationary police officer from his December 14, 2008 arrest.

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Petitioner Granted Back Pay With Interest

John Tipaldo v Christopher Lynn, etc., et al.

Pursuant to Article 78, plaintiff appealed an order by the Supreme court that granted his back pay without interest in his Civil Service Law § 75-b action. The plaintiff is also asking for the court to grant his reinstatement to the prior position.

In August 1996, plaintiff, John Tipaldo, was promoted to the position of Acting Assistant Commissioner for Planning by the New York City Department of Transportation (DOT). Plaintiff, which was a salary of $55,000 and if the position became permanent, he would receive a $25,000 increase. Six months later, plaintiff was demoted from the new position. As determined in the Civil Service Law § 75-b action, the demotion was in retaliation for the plaintiff reporting a supervisor violated bidding rules. Due to the demotion, the plaintiff new position never became permanent and he never received the $25,000 salary increase.

At the trial court, plaintiff presented an expert economics testimony to establish the total amount of back pay the plaintiff was entitled to. The expert determined that if the plaintiff had not been demoted he would have received the $25,000 increase and would have been making $81,000. The expert also calculated the amount of money the plaintiff would have earned through the time of trial if he was not demoted by comparing two managers with similar position and salary to that of the plaintiff and applied a statutory interest rate of 9% to the lost earning. The expert arrived at a total of $662,721.

The Appellate Court found that the back pay calculated by the plaintiff’s expert had sufficient support and that the plaintiff was likely to have received the raise.

Therefore, it was determined that the predetermination interest is available for those who claim under the Civil Service Law § 75-b. Further, it Supreme Court granted an interested award because the defendants did not offer any counter argument as to why the plaintiff’s expert testimony is flawed. Finally, the Supreme Court order that the plaintiff be reinstated “to the same position held before the retaliatory personnel action, or to an equivalent position.”

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Petition Dismissed Due to Administrative Remedies Not Being Exhausted

Pitts II v City of New York Office of Comptroller

Pursuant to Article 78, petitioner sought the court to review a decision of the New York City Department of Health and Mental Hygiene (DOHMH) stating that he had violated New York City Health Code.

Petitioner received a violation notice from the DOHMH which cited him for violations of the New York City Health Code. A DOHMH hearing examiner determined that petitioner had two violations and he would be fined $500 total. Petitioner brought suit but failed appeal the decision prior to suit.  Due to the petitioner not exhausting all administrative remedies the Supreme Court granted DOHMH’s motion to dismiss.

The court stated that in order for a proceeding to be litigate in a court of law, petitioner must exhaust all available administrative remedies

The Supreme Court ordered that the order and judgment is affirmed, without costs or disbursements.

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Petitioner Request for Temporary Release Program Denied

In the Matter of Frank Lapetina v Brian Fischer, as Commissioner of Correctional Services, et al.

 

Pursuant to Article 78, petitioner sought to appeal a decision by the respondent rejecting his request to partake in a temporary release program.

 

Petitioner is a prison inmate, who applied to partake in a temporary release program. The facility’s Temporary Release Committee approved his request. However, upon review by the Department of Correctional Services, it was denied. The respondent upheld the decision on administrative appeal. Therefore, the petitioner initiated this Article 78 proceeding, which was denied by the Supreme Court and led to the petitioner appealing.

 

The Supreme Court affirmed the decision stating that partaking in a temporary release program is not a right, but a privilege. The petitioner was not suitable for the program because of the nature of his crimes committed and his recidivist history.

 

The court order that the judgment is affirmed without costs.

 

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The court affirmed the judgment and order imposing a deficit assessment on the Peitioner by Workers' Compensation Board.

In the Matter of Aides at Home, Inc. v State of New York Workers' Compensation Board et al.

 

In this Article 78 case, petitioner asked the court to review a determination of respondent imposing an assessment against the petitioner.

 

From 1997 to 2000, petitioner was a member of a workers’ compensation group self-insured trust, New York Health Compensation Trust. In 2006, respondent terminated the Trust due to underfunding. Respondent assumed that the Trust would administer and distribute the assets and liabilities. Approximately two years later, the Board administered a deficit assessment to current and former Trust members, including the petitioner. The purpose of the deficit assessment was to cover the costs of fulfilling the Trust’s workers’ compensation claims.

 

Petitioner, then, initiated a combined proceeding of Article 78 and a declaratory judgment challenging the Board’s assessment. Petitioner claimed that the Board could not impose an assessment because the Board did not have statutory or regulatory authority and petitioner believes that the assessment is arbitrary and capricious and it violated the petitioner’s due process rights. The court dismissed the petition and the petitioner appealed.

 

Originally, the Board decision was limited to whether it "was affected by an error of law or was arbitrary and capricious or an abuse of discretion." Additionally, "the construction given statutes and regulations by the agency responsible for their administration will, if not irrational or unreasonable, be upheld" Therefore, the Trust was allowed to administer its workers’ compensation liabilities after the Board terminated the Trust., the Board, according to the regulation, was allowed to assume that the Trust would administer and distribute the assets and liabilities and the Board was authorized to levy an assessment up the member in order to make up for the deficiency.

 

The court affirmed the judgment and order, without cost.

 

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FDNY Employee Petition Granted; Petitioner Allowed to Retire Instead of Being Terminated.

In the Matter of Thomas J. McDougall v Nicholas Scoppetta, etc., et al.

 

Pursuant to Article 78, petitioner, Thomas J. McDougall, requested the court review a decision of the respondent and the administrative law judge, where the petitioner was found guilty of two charges of misconduct resulting in his termination. The court needed to determine whether the penalty of termination of the petitioner’s employment was top-heavy and shocking, which was perceived as an abuse of power.

 

The petitioner has been a member of the Fire Department of New York City for twenty-five years. After testing positive for the presence of cocaine in a random drug testing, a “Step 1” meeting was held to review the charges for violation the Fire Department regulations. McDougall was found guilty of all charges. However, due to the petitioner’s lengthy service to the Fire Department without any prior disciplinary problems, he should be allowed to resign and only be fined the sum of $80,000.

 

Following the “Step 1” conference, the matter was submitted to the Office of Trials and Hearing (OATH) for a hearing by an administrative law judge. The administrative law judge stated that pursuant to the Administrative Code of the City of New York § 15-113, the petitioner’s employment should be terminated.

 

The Commissioner of the Fire Department of the city of New York agreed with the administrative law judge and terminated the petitioner’s employment at the Fire Department. Resulting from his termination, petitioner had to forfeit his pension and retirement benefits, which included health insurance.

 

As stated in Administrative Code of the City of New York § 15-113, the power of the Commissioner to discipline members of the Department is reviewable under Article 78. The court needs to determine where the petitioner’s penalty was “arbitrary and capricious as a matter of law such that there was an abuse of power.”

 

Due to petitioner’s termination, the petitioner and his family will suffer from the loss of his pension and retirement benefits to which he earned during his 25 years of service in the Department. Petitioner was the sole financial supporter in his family. Therefore, no pension and retirement benefits would be devastating on the entire family.

 

The court acknowledges that this was an isolated incident for the petitioner in his twenty-five year employment with the Fire Department. Petitioner penalty is extremely shocking that an annulment of the administrative law judge decision should be imposed and a lesser penalty should be administered.

 

The petition is granted, with costs. The penalty of termination of the petitioner's employment is annulled and the matter is remitted to the respondents for a lesser penalty allowing the petitioner to retire and fining the petitioner the sum of $ 80,000.

 

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Petitioners states that Respondents' decision are forcing conditions upon them; Court denied and dismissed Petition

The Matter of David Layne v Eastchester Planning Board

 

Pursuant to Article 78, petitioner sought the court to review a decision of the Town of Eastcheaster Planning Board.

 

Jalo Realty, LLC owns three adjacent properties that are designated as three separate tax lots. One lot is completely within a single-family zoning district, and another lot is completely within a retail business district that allows multi-family residential units. The third lot is situated in between those other two lots. This means that it is divided by the boundary between the two zoning district.

 

In June 2007, Jalo Realty, LLC applied for site plan approval to build 10 multi-family units on the three lots with the respondents. Jalo Realty, also, requested a special permit that “provides that where the boundary of a district divides a lot, a special use permit may be granted to extend a lawful conforming use on that portion of the lot lying in the less restricted district 75 feet into the more restricted district.

 

In February 2008, the board granted the application on grounds that Jalo demolish the present buildings and merge the three lots into one tax lot. The petitioners then sought to appeal, which the court denied and dismissed due to respondents decision had a rational basis. Jalo Realty, LLc stated that respondents’ decision was in conformance with the legislatively forced conditions.

 

Court stated that the petitioners’ contentions are without merit.

 

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Petitioner Appealed Denied Due to Violation of Condition Six with the Parole Requirements

The Matter of Derrick Wingate v New York State Division of Parole

 

In this Article 78 case, petitioner requested the court review a decision of the respondent to revoke petitioner’s parole.

 

Petitioner, Derrick Wingate, has an extensive and violent criminal record. In 1982, he was convicted of escape in the second degree and two counts of criminal possession of a weapon in the third degree. Petitioner was sentenced to 15 years to life in prison. In January 2008, he was release to parole supervision. Under condition six of his release, petitioner was required to inform his parole officers of any contact (including arrests) with any law enforcement agency.

 

In June of the same year of his release, petitioner was charged with violating condition six. Petitioner did not inform his parole officer that the police were summoned to his residence to investigate a shooting involving his grandchildren.

 

Petitioner sought an appeal under article 78, after a decision not given within 4 months. The court stated that if there was a violation of the procedural requirements, then petitioner parole revocation will be confirmed. There was a tremendous amount of evidence present supporting the respondent’s decision to revoke his parole.

 

On the day in question, petitioner gave the officer a false name, refused to allow the officer to search his home and his interaction last several hours with a few officers. “The nature and interaction with the officer would lead a reasonable person to conclude that it was “contact” with the police” and would require the petitioner to report this to his parole officer. The parole officer testified that no such incident was ever reported by the petitioner.

 

The court concluded that the respondent’s decision is confirmed, without costs and the petition is dismissed.

 

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Petitioner tenancy terminated due to Violation of the Housing Authority's Policy

The Matter of the Application of Judy Florence against The New York City Housing Authority

In this Article 78 case, petitioner sought to reverse respondent’s decision to terminate her lease due to failure to register and maintain her two dogs in compliance with the Housing Authority pet policy and her outstanding rent balance.

 

According to the respondent, their decision to terminate her tenancy was based on substantial evidence. First, petitioner admitted that she owned a pit bull that was involved in an attack with her neighbor in the hallway near the petitioner’s apartment and she did not register both of her pets. Second, petitioner also admitted that she failed to pay her rent on time and this was a violation of the housing Authority Policy. According to the Housing authority, failure to make payments on time is a good enough reason to terminate tenancy.

 

The petition was denied and the proceeding is dismissed, without costs and disbursements to the respondent.

 

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Petition denied; Appeal Confirmed Initial Guilty Finding

The Matter of Carlos Ortiz v Brian Fischer, as Commissioner of Correctional Services

 

In this Article 78 case, the court reviewed a decision where respondent found petitioner guilty of violating a prison disciplinary rule.

 

Petitioner urine was tested positive twice for the presence of cannabinoids. He was, then, charged with the use of a controlled substance and found guilty in a tier III disciplinary hearing. After the petitioner’s administrative appeal was ineffective, petitioner commenced an Article 78 proceeding.

However, the court still confirmed this initial finding. The following substantial evidence aided in the court’s decision: (1) the misbehavior report; (2) positive test results; (3) testimony of the testing officer; and (4) petitioner’s admission that he smoked marijuana.

 

The court reviewed the record and determined the petitioner’s guilty charge was a result of the substantial evidence and not a result of any alleged hearing officer bias. Petitioner’s argument was unpreserved or unpersuasive.

 

The determination was confirmed, without costs and the petition was dismissed.

 

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Zoning Board of Appeals Denied Petitioner Application for Area Variances; the Court Affirmed.

Matter of Estate of Phyllis Gravino v Thomas Young

In this Article 78 case, the court reviewed a decision of the Zoning Board of Appeals of the Town of Babylon. The Zoning Board denied the petitioner’s application for area variances.

 

The Zoning Board of Appeals of the Town of Babylon decision to deny petitioner because they found that the requested variances would cause an adverse effect on the surrounding neighborhood. The court’s determination was rational and not arbitrary and capricious. Also, petitioner had failed to show that the Zoning Board had granted variances to other in similar situation.

 

The court denied the petition and dismissed the proceeding, with costs.

 

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Plaintiff's Complaint was Dismissed on the Grounds that FELA Did Not Apply

Paul Zuckerberg, et al. v Port Authority of New York and New Jersey

Pursuant to the Federal Employers’ Liability Act, the plaintiffs sought to recover damages for personal injuries.

The injured plaintiff was employed by the defendant as a police lieutenant. One day, the injured plaintiff was stationed at John F. Kennedy International Airport. While on duty, he tripped over a door saddle while exiting the tour commander’s office. The injured plaintiff applied and received worker’s compensation benefits for his injuries from the fall.

The plaintiff and his wife, then commenced this action against the Port Authority pursuant to the Federal Employers’ Liability Act (FELA). Port Authority argued that FELA did not apply to this action and that the injured plaintiff was already covered by worker’s compensation. Therefore, they moved for summary judgment to dismiss the complaint. In opposition, the injured plaintiff asserted that he was assigned to a central lieutenant’s pool and would be randomly to different areas. This included areas in the Port Authority Trans-Hudson Corporation.

The court states that FELA was inapplicable to this case. However, plaintiffs still asserts that the Port Authority, “in its capacity as the operator of an interstate railway transit system, may be subject to liability as an interstate "common carrier by railroad" within the meaning of FELA.”

The court concluded that FELA still did not apply under the circumstances of this case and granted Port Authority motion for dismissing the complaint.

Read more about this Article 78 case here.

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Petitioner Name Removed from the DOE's Ineligible/Inquiry List After Criminal Charges are Dismissed

Matter of the Application of Philomena Brennan v New York City Department of Education

 

 

Petitioner, a tenured teacher, started an Article 78 proceeding against the New York City Department of Education. She wanted her name to be removed from the DOE’s Ineligible/Inquiry List and for the DOE to allow her to withdraw her resignation.

 

In the spring of 2006, petitioner was working as a full-time teacher Frederick Douglas Academy in Brooklyn. At the end of the school year, the principal informed petitioner that she was receiving an unsatisfactory rating. Immediately after being informed of her “U” rating, petitioner formally resigned.

 

A few years later, petitioner began to take steps to with her resignation. In January 2009, she returned to the school to speck to the principal. Petitioner saw the principal and was escorted to her office and told to wait. Approximately ten minutes later, petitioner was “handcuffed and charged with misdemeanor of trespass and the violation of harassment.” She immediately informed the DOE of the arrest, as the rules are stated and she was placed on the DOE’s Ineligible/Inquiry List, which makes her ineligible for rehire or for a teaching assignment.

 

In June 2009, all criminal charges against the petitioner were dismissed. So, she requested the DOE remove her for the DOE’s Ineligible/ Inquiry List. The IA Deputy Chancellor Teaching and Learning signed an undated letter stating she has been approved to be removed for the list. However, due to no date on the letter, the court determined that the effective date would be June 11, 2009, when petitioner initially applied to have her name removed from the list. Now, petitioner sought to have her resignation withdrawn, but she had to wait for all paperwork regarding the list is completed. Therefore, the petition to withdraw he resignation is premature.

The petition was granted as it requests the removal of the name of Philomena Brennan, petitioner, from the Ineligible/Inquiry List maintained by respondent New York City Department of Education, effective June 11, 2009 and the court ordered that respondent's cross-motion to dismiss petitioner's claim regarding the withdrawal of her resignation as a teacher is granted, and that claim is dismissed without prejudice and without costs or disbursements to either party due to it prematurity.

 

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Court questions if Petitioner was financially capable of "equally sharing" arbitration fees

Matter of Lorrainer C. Brady v The Williams Capital Group, L. P.

In this Article 78 case, the question is whether the petitioner was financially capable of sharing arbitration fees and costs.

 

In 1999, the respondent hired petitioner to sell fixed income securities. As a requirement for the position, petition needed to complete a Uniform Application for Securities Industry Registration to Transfer in order to become registered with the National Association of Securities Dealers (NASD). Upon registration, petitioner was no subject to the NASD rules.

 

In 2000, respondent created an employee manual and each employee was required to sign and follows and condition set aside in the manual. The employee manual included a “Mutual Agreement to Arbitrate Claims,” which states that all disputes will be arbitrated and each party will equally share the fees and costs of the arbitrator.

 

Approximately five years later, in February 2005, petitioner was terminated from her position at The Williams Group. Following her termination, petitioner filed a discrimination complaint with the New York State Division of Human Rights. However, eight months later, before a decision was made, petitioner withdrew her complaint. In December of the same year, petitioner filed a Demand for Arbitration with American Arbitration Association. She was seeking money damages against the respondent. Petitioner claimed that her termination of employment at the Williams Group was in violation of her Civil Rights.

 

According to the AAA rules, employers were required to pay all arbitration fees. Therefore, AAA decided on behalf of the petitioner and sent an invoice for $42,300 to the respondent. Respondent refused to pay the entire amount due to the Williams Group arbitration agreement in the employees’ manual.

 

Pursuant to Article 78, petitioner sought to force respondent to pay the fees or to force AAA to issue a judgment on respondent for failure to cooperate.

 

The Appellate Division sided with the petitioner because they found that respondent “equal share” provision in the agreement was “unenforceable as against public policy.” However, now the petitioner has the burden of showing that she withdrew her initial petition on the grounds that the fees were discouraging to continue the arbitration.

 

Respondent appealed on the grounds that petitioner was financially capable of paying half of the fees, at the time of the filing the complaint.

 

Order modified, without costs, by remitting to Supreme Court, New York County, for further

proceedings in accordance with the opinion herein and, as so modified, affirmed.

 

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Article 78 appeal for revoked insurance license denied

Matter of Jessica Coulter v State of NY Insurance Department

Petitioner brought about this Article 78 case to review a determination of the State of New York Insurance Department adopting the recommendation of a hearing officer and revoking petitioner’s insurance broker license in New York. Petitioner was charged with untrustworthiness and incompetence as an insurance producer based on her license being revoked by the state of New Jersey and her owing restitution and fines of over $100,000. Additional charges of misconduct included failure to remit payroll taxes to the IRS for a period of eight years and making a false statement under oath. After a hearing regarding these charges, the hearing officer recommended that petitioner’s license be revoked in New York and the Department adopted this recommendation. Petitioner then brought about an Article 78 appeal contended that there was not sufficient evidence to support the determination. The Court disagreed and felt that the evidence was, in fact, sufficient and the penalty of revocation was not disproportionate to the offences committed and thus, not shocking to one’s sense of fairness.

Accordingly, the Supreme Court confirmed the determination, denied the petitioner, and dismissed the proceeding, with costs.

Read more about this Article 78 employment case here.

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For other interesting information in the personal injury file go to www.negligenceatty.com.

Two Onondaga County jail deputies disciplined after inmate's suicide

According to Sheriff Kevin Walsh, two jail deputies have been disciplined as a result of an investigation into an inmate suicide at Onondaga County Justice Center in 2008. The first deputy was suspended and the second was counseled and retrained. Inmate, Michael Tew, 19, had been charged with second-degree arson and violating terms of probation from a 2006 incident. On November 2, 2008 at 7 a.m. Tew was found dead in his cell after hanging himself. It was concluded that he had been dead for three to four hours by the time his body was discovered, even though the first deputy performed checks every half-hour and the second deputy toured the cells at 4:15 a.m. The suspended officer failed to perform the Justice Center’s required population count at 6:30 that morning. It is impossible to know whether Tew’s death could have been prevented even if rounds had been made promptly because he would have enough time between them to kill himself. As a result the first deputy was suspended for 30 days without pay then assigned to the Temporary Assignment Unit. Sheriff Walsh is waiting on a Civil Service hearing where he is looking to have the deputy terminated. Unfortunately no comments made by Tew threatening to take his life were reported to authorities.  

Read full article here.

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For other interesting information in the personal injury file go to www.negligenceatty.com.

Former police chief's termination appeal for cover up attempt is dismissed

Former Saranac Lake Police Chief Donald Perryman was involved in a cover up involving two police officers who were in a car accident on their way home from a training seminar. The officers admitted to drinking that afternoon. Perryman directed another officer to drive the two officers home, arranged to have the car towed from the scene of the accident and did not compel the officers to submit to alcohol testing. Perryman has been charged with 12 counts of misconduct. He filed an Article 78 appeal following his termination claiming that the hearing board’s decision was arbitrary and capricious. The state appeals court dismissed Perryman’s claim and upheld the ruling of the board.

Read full article here.

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For other interesting information in the personal injury file go to www.negligenceatty.com.

CBA requires exhaustion of administrative remedies prior to filing Article 78 petition

Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts

Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts
Matter of Julicher v Town of Tonawanda, 2009 NY Slip Op 03273, Decided on April 24, 2009, Appellate Division, Fourth Department

Dismissed from his position, Joseph J. Julicher filed a grievance in accordance with the grievance and arbitration procedure set out in the relevant the collective bargaining agreement between the Tonawanda and Julicher’s union. Before completing the grievance and arbitration procedure in which he challenged his termination by the Town, Julicher filed a petition pursuant to CPLR Article 78 in an effort to obtain a court order annulling his dismissal.

The Appellate Division said that Supreme Court’s granting Julicher’s petition was incorrect and unanimously reversed the lower court’s ruling and dismissed Julicher’s lawsuit.

The Appellate Division said that "[W]here[, as here], a collective bargaining agreement requires that a particular dispute be resolved pursuant to a grievance procedure, an employee's failure to grieve will constitute a failure to exhaust [administrative remedies], thereby precluding relief under CPLR Article 78."

Although Julicher commenced the grievance and arbitration procedure pursuant to the collective bargaining agreement, he failed to complete the procedure before commencing legal action and thus he failed to exhaust his administrative remedies.

N.B. In this instance, the grievant filed the petition seeking judicial relief pursuant to Article 78 of the CPLR. Presumably any challenge to an arbitrator’s determination, had the grievant not discontinued his or her participation in the grievance procedure, would have been brought pursuant to Article 75 of the CPLR.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03273.htm

Judge continues stay of West Albany Rod & Gun Club appeal

A Supreme Court Justice decided to extend a temporary restraining order barring Colonie’s personnel chief, Michael Foley, from considering the appeals of two demoted highway supervisors for another ten days. The stay was first issued in December 2008 after the town sough to freeze the process arguing that the supervisors had already appealed their demotions and that Foley had a conflict of interest.

The Town Board demoted these two men in December 2008 and they subsequently appealed to Foley and commenced a lawsuit on the town in Supreme Court alleging that the public works commissioner and not the Town Board had the authority to discipline them. Originally, the supervisors received suspensions without pay for two months which the town then changed to demotions with pay cuts.

The judge wants to prevent Foley from taking any action regarding the appeals until after he has a chance to hear arguments on both the pending lawsuits.

Read article here.

Police officer's termination for insubordination upheld

Matter of Jason Longton Jr. v. Village of Corinth

Petitioner Jason Longton Jr. brought about this Article 78 proceeding to review the determination of the Village of Corinth Board of Trustees terminating his employment as a police officer. Petitioner began working as a police officer in 2003. In 2004, he was charged with violating multiple department rules and suspended. The most serious charge was insubordination involving his investigation of an individual after receiving a direct order by the Chief of Police not to do so. Following a hearing, petitioner’s employment was terminated but the determination was later annulled due to an issue with improper stenographic transcription. A second hearing resulted in a recommendation for termination which the Board of Trustees enforced. Petitioner then commenced this appeal.

In August 2004, petitioner quarreled with a restaurateur, Trevor Downie, during a traffic stop. Downie complaints about petitioner’s conduct were then forwarded to the Chief of Police. Petitioner then confronted Downie at his restaurant resulting in Downie threatening a lawsuit against the Village of Corinth. Further altercations between petitioner and Downie led to the Chief of Police ordering petitioner to stop any investigation or contact with Downie. Petitioner ignored the orders and continued investigating Downie secretly.

Petitioner argued that the penalty of termination was excessive. The Court feels that petitioner, being an employee of short duration, deliberately disobeying the orders of the Chief of Police constitutes conduct at odds with the strict discipline necessary to perform the duties of a police officer and therefore the penalty was not shocking.

Accordingly, the Court confirmed the determination, without costs and dismissed the petition.

OATH judge dismisses charges against Environmental Police Officers

DEP v. Nuccio and Williamson  OATH Index #s 2360/08 &2361/08 (9/26/08)

Response to 911 call without supervisory approval was proper. 

Nuccio and Williamson were experienced officers who patrolled watershed areas in upstate New York. In May of 2007 the DEP issued an interim order directing officers not to respond to 911 calls without supervisory approval.  This directive was to avoid DEP officers responding to routine calls in local jurisdictions. In Ulster County a 911 call generates a 911 "poll" seeking response from local law enforcement.  When a 911 "poll" is transmitted the DEP supervisor would authorize a DEP response.  

On 10/2/07 when Nuccio and Williamson were patrolling near the Ashokan Reservoir Ulster County received a 911 call for a domestic violence complaint across from the Reservoir.  Respondent's were 2 to 3 miles away at the time of the call.  No units responded to the first poll and it was retransmitted. Thereafter, respondents picked up the call.  They called their base and asked the officer assigned to desk duty to get the supervisors approval.  Sergeant Wood called the base and denied the officer request to handle the domestic violence 911 call. Inspector Milazzo overturned the Sergeant's disapproval after learning that the officers had already comitted to pick up the job to the 911 operator.

ALJ Kevin Casey analyzed the "obey now, grieve later" principal as it applied to the respondents action.  Common sense dicates that the "obey now, grieve later" concept does not apply and common sense dictates that orders do not apply when adherence would pose a threat to health and safety of employees or others. Officers must show that an imminent threat justifies disobedience of an order.  eg.  officer with allergies, asthma, heart disease justified not reporting to site near Ground Zero;  failure to inspect justified not operating vehicle.  HRA v. Dottin OATH Index 1260/02 and DOS v. Jones OATH Index 2186/99 respectively. 

Judge Casey ruled that the respondents proved that the health and safety exception applied and dismissed the charges against the officers.

OATH decision to demote respondent for incompetence

Transit Authority v. Wong

This Article 75 disciplinary proceeding was brought about by Petitioner, NYC Transit Authority, against Respondent, Sze Tung Wong, alleging incompetence and misconduct and seeking termination. Respondent was accused of being unable to complete tasks appropriate to his position and title of Computer Specialist II, being uncooperative and unwilling to complete assignments in a timely manner.

 

Respondent’s incompetence charges include being unable to retrieve files from a shared library, failing at completing basic Oracle-related assignments, and not completing an analysis of data error log. He was also accused of misconduct for refusing to participate in a scheduled roll-out, purposefully delaying a work assignment, and being uncooperative and confrontational during the roll-out of a new program.

 

After reviewing all of the evidence and testimonies, the OATH judge dismissed the misconduct charges but agreed with the allegations of incompetence. She felt that Respondent clearly was not able to perform certain aspects of his job without intensive instruction and supervision. In light of his lengthy tenure with the City, the judge felt that termination was too harsh of a punishment. Instead, she recommended demotion as a more fitting penalty that would give Respondent another chance to prove himself in a less demanding position.

 

Accordingly, the Judge ordered Respondent demoted from his position of Computer Specialist II to a position better suited to his skills and knowledge.

Challenges to Civil Service Commission Decisions



Challenging an administrative determination by a civil service commission

Challenging an administrative determination by a civil service commission
Horn v The New York City Civil Service Commission, 43 A.D.3d 760, Appellate Division, First Department

Sharhann Lane, had been terminated from her position with the New York City Department of Corrections. She appealed to the New York City Civil Service Commission, which directed the Department to reinstate her to her former position.

Martin Horn, the Commissioner of the New York City Department of Correction, filed an Article 78 petition seeking to annul the Commission’s determination reinstating Lane to her former position as a correction officer.

Citing Matter of New York City Dept. of Envtl. Protection v New York City Civil Service Commission, 78 NY2d 318, the Appellate Division ruled that the lower court properly dismissed the Commissioner’s petition as a determination by the New York City Civil Service Commission is subject to judicial review only if “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction”.

The Commissioner of Corrections had argued that the Civil Service Commission’s determination was against public policy and inconsistent with the Commission’s precedents in such matters. Challenges based on an alleged violation of public policy and, or, a failure to follow precedents, said the court, do not fall within the scope of judicial review permitted – i.e., consideration of alleged illegal or unconstitutional actions by the Commission or rulings alleged to be on matters beyond the Commission’s jurisdiction.

Source: Initially published on the Internet inNew York Public Personnel Law. Reproduced with permission. Copyright© 2006, 2007, 2008, Public Employment Law Press.

Article 78 appeal to review revoked medical license denied

Matter of Monreal v Administrative Review Board of the State Board for Professional Medical Conduct

Petitioner, F. Javier Monreal, brought about this Article 78 to review determination of respondent which revoked petitioner’s license to practice law in New York. Last year, petitioner who is a pediatric neurologist was personally served with a notice of hearing and statement of charges alleging multiple instances of misconduct involving his treatment of 12 children. When contacted by the Administrative Law Judge (ADJ), petitioner said he would not attend the hearing. All subsequent letters regarding the upcoming hearing petitioner returned unopened. Due to petitioner’s failure to respond, the charges were deemed admitted and his license to practice medicine in New York was revoked.

Petitioner argued that he suffered from a mental health affinity and thus the Committee’s decision should be vacated and a hearing conducted. No evidence exists to support a claim that petitioner did not understand the charges against him. In fact, the evidence proves the contrary. Instead of answering the charges, petitioner wrote a letter to the Department of Health and State Board for Professional Medical Conduct saying that he was commencing a separate action to prevent the hearing from taking place. These circumstances make it apparent that petitioner understood the charges against him and was able to assert his legal rights.

Accordingly, the Supreme Court confirmed the determination, without costs and dismissed the petition.

Firefighters lose appeals against terminations for drug usage

Reinhard v City of New York

Petitioner, Christopher Reinhard, brought about petition to appeal the decision terminating him from the FDNY for illegal drug use. Petitioner argued that he was denied due process because the disciplinary hearing was conducted in his absence. The Court made multiple attempts to contact petitioner at his home address, through his attorney, and through his union. Petitioner did not inform the Court that he had entered an inpatient treatment facility. He was fully aware that disciplinary action would follow his positive test result and should have given notice of a change of address. Accordingly, the Supreme Court dismissed the petition, without costs.

Kirk v City of New York

Petitioner, Michael Kirk, tested positive for cocaine during a random drug test and the Fire Department terminated his employment. Petitioner argued that the random drug testing policy is unconstitutional. Although alcohol dependency qualifies as a disability under Human Rights Law, drug abuse does not and petitioner failed to prove his drug use to be casually related to his alcoholism. Accordingly, the Supreme Court dismissed the petition, without costs.

O’Neill v City of New York

Petitioner, Kevin O’Neill, was terminated for testing positive for marijuana during a random drug test under a zero tolerance policy in effect at the time of the decision. Petitioner argued that changes were made to the Fire Department’s policy regarding drug usage subsequent to his termination. The Court rejects petitioner’s claim that the changes should be retroactively applied to his case. Accordingly, the Supreme Court dismissed the petition, without costs.

Decision to vacate teacher misconduct unanimously reversed

Lackow v Department of Education of City of New York

Supreme Court granted petitioner, Douglas Lackow’s, petition to have certain determinations of teacher misconduct vacated and remanded for imposition of a lesser penalty than termination of employment in January of 2007.

Respondent, Department of Education of the City of New York brought about this appeal seeking reconsideration. A number of complaints were filed against petitioner concerning his use of sexual innuendo in high school classes he taught. Petitioner made multiple inappropriate comments to different students that can be verified by witnesses.

In light of petitioner’s proven misconduct and the fact that he had been warned in writing three times about the inappropriateness of his behavior, the penalty of dismissal does not shock the conscience. The repetitive nature of petitioner’s misconduct is especially alarming. Such conduct is indicative of a continued pattern of offensive behavior that reflects an inability to understand the necessary separation between a teacher and his students.

Accordingly, the Supreme Court ordered the petition to vacate certain determinations of teacher misconduct and remand for imposition of a lesser penalty than termination reversed, the cross motion to dismiss granted, and the petition dismissed.

BOCES termination penalty too severe; back pay awarded at demontion level salary

Matter of DeStefano v Board of Cooperative Educational Services of Nassau County

Index No. 11638/06

Petitioner brought about this Article 78 proceeding to review a determination by the Board of Cooperative Educational Services of Nassau County (BOCES) demoting her from her position as a Teacher’s Aide to that of a School Monitor awarding her back pay of $25,927.05. January 2004, BOCES found petitioner guilty of misconduct and terminated her employment as punishment. In February 2006, the Court found that the sanction of dismissal was so disproportionate to petitioner’s misconduct as to be shocking to one’s sense of fairness and demanded a less severe punishment. March 2006, BOCES demoted petitioner to the position of School Monitor and awarded her back pay based on a School Monitor’s salary, which was less than a Teacher’s Aide salary.

 Petitioner commenced an instant proceeding to review BOCES’ determination. The Supreme Court dismissed the proceeding. No basis exists for annulling the determination of BOCES to base the back pay on a School Monitor’s salary.

 Accordingly, the Supreme Court ordered that the judgment is affirmed, without costs.

Article 78 appeal of FDNY termination for false statements denied

Matter of Loscuito v Scoppetta

Article 78 proceeding was sought to review a determination of Nicholas Scoppetta, as Fire Commissioner of the City of New York. Petitioner knowingly made false statements to investigators in the course of an investigation. Additionally, petitioner was found guilty of six charges of misconduct. The petitioner’s false statements made under oath related to serious charges implicating the integrity of the FDNY gave good reason for his termination and was not so disproportionate to the offenses to be shocking to one’s sense of fairness.

 Accordingly, the Supreme Court ordered that the determination is confirmed, the petition is denied, and the proceeding dismissed on the merits, with costs.

Order to Show Cause to Withdraw Resignation denied

Gilliam v. New York City Department of Sanitation

Index No. 1664/08

Charles Gilliam, Petitioner, moves, by order to show cause, to withdraw his resignation from the New York City Department of Sanitation, Respondents.

 Mr. Gilliam while a uniformed sanitation worker, tested positive for cocaine in June 2007. Accordingly, he was suspended and sent to a rehabilitation center. Prior to returning to work, Mr. Gilliam submitted to a second drug test in August 2007 and again failed. After his two failed drug tests and his attempt at rehabilitation, DSNY gave Mr. Gilliam a third chance in the form of a Last Chance Agreement. The Last Chance Agreement was an offer for Petitioner to accept a plea bargain to resolve all departmental charges against him. By signing this agreement, Petitioner waived any hearing or right to be heard for the purpose of contesting a subsequent positive drug test or refusal to test and have the Department Advocate the right to submit his resignation in the case of a third positive drug test. Mr. Gilliam voluntarily entered into the Last Chance Agreement and was aware that a third positive drug test would result in the termination of his employment.

 In November 2007, Petitioner failed a drug test for the third time. The urine sample, Mr. Gilliam submitted was substituted and found to be not urine. As a result of these laboratory findings, as required by the Last Chance Agreement, Petitioner’s resignation was submitted.

Mr. Gilliam does not dispute the test results but claims that the City and DSNY should have treated him for a line of duty injury due to Post Traumatic Stress Disorder caused by his experiences working during the 9/11. Mr. Gilliam, however, has failed to present the Court with any documentation that he worked at Ground Zero or the Staten Island landfill where Ground Zero debris was transported. While, the Court is sympathetic to Petitioner’s plea for help, they feel he has been given ample opportunity by respondents to solve his drug and alcohol problems.

 Petitioner Gilliam failed to present any evidence that he was coerced to sign the Last Chance Agreement. He voluntarily entered into his Last Chance Agreement in order to dispose of various departmental disciplinary charges resulting from his positive drug tests and substance abuse.

 Accordingly, the Supreme Court denied the petitioner’s order to show cause and granted respondents’ summary judgment and dismissal of the instant petition.

Substantial evidence supports child care license revocation

Alexander v. NYS Office of Children and Family Services
Index # 20906/06

The Appellate Division, Second Department determining this Article 78 Petition held that there was substantial evidence in the hearing record to uphold the determining of the designee of the Commissioner of the New York State Office of Children and Family Services to revoke the Petitioner's licencse.  The penalty of license revocation was neither arbitrary and capricious nor disproportionate to the misconduct.  The decision can be found here www.nycourts.gov/reporter/3dseries/2008/2008_03451.htm

The NYPD Department Advocate's Office "Civilianized"

A recent article in the New York Law Journal reported that the NYPD Department Advocate’s Office is now “civilianized”. The Department Advocate’s Office, which prosecutes officers in courtroom hearing before administrative law judges, is now composed of veteran litigators recruited primarily from the offices of district attorneys and the Legal Aid Society.

 Traditionally, the advocate’s office has been staffed by police officers straight out of law school. In 2005, Commissioner Raymond Kelley hired Julie Schwartz, former chief of the Sex Crimes and Special Victims Bureau at the Brooklyn District Attorney’s office, to alter the public perception of the advocate’s office. Ms. Schwartz’ aim was to “professionalize” the advocate’s office as a legal agency.

 This effort to bring credibility to the department has given way to a plethora of benefits to the parties involved. Officer-lawyers pursuing criminal charges against fellow police officers were commonly referred to as “rats” and most officers did not desire the position of a rat. Now, with the shift to civilian attorneys, more police officers are back out on patrol. A handful of the 25 lawyers under Ms. Schwartz command are uniformed police officers but these individuals do not have caseloads nor do they try cases.

 Positive statistics show prove an “improvement of the quality of service” provided by the civilian lawyers. In the past three years, since Ms. Schwartz’ reform, trials have gone down and negotiations have gone up. This means that the NYPD advocate’s office is being more careful about what they bring to trial. Also, fewer dismissals mean more credibility with the public and fewer cases brought to trial mean less unnecessary anxiety for police officers.

 Read entire article here.

Article 78 Reinstatement as a Police Cadet Denied

Chan v. Kelly, the New York Police Department, and the City of New York
Index No. 110513/07

Petitioner William Chan sought reinstatement as a police cadet by respondents Raymond Kelly, the New York City Police Department, and the City of New York in this Article 78 petition. 

Patrol Guide §212-34 governs probationary police officers, and states in part that when a probationary police officer or person eligible for appointment to the NYPD is involved in a police incident, a member of the service must report the incident to a commanding officer. The Police Cadet Corps Handbook also states, at § 105-4, that “[a] police incident not only involves arrests but includes all police incidents”. 

While Chan denies he violated written procedure, he does not deny that he left the scene of a serious multi-car accident, that he did not attempt to render assistance, and that he failed to notify a commanding officer. On the basis of these facts, respondents concluded that Chan violated Patrol Guide §212-34 and “failed to demonstrate the integrity, judgment, and character required of either a New York City Police Officer or a Police Cadet”. 

The court wrote that:

“Chan’s petition does not meet this burden [of bad faith]… On the contrary, evidence in record supports the conclusion Chan was discharged by respondents in good faith on the basis of his unsatisfactory performance.” 

Accordingly, the Court denied this Article 78 petition.

 Read entire article here.

Summary New York State Civil Service Commission

The New York State Civil Service Commission

The CSC exercise authority over the classified civil service of the State.

The CSC retains broad merit system oversight responsibilities for both State and local government.

The functions of the Commission can be divided into three categories:

Quasi-Legislative Authority :The Commission promulgates rules and regulations for the classified service (this includes the Rules for the Classified Service and the Commission's Regulations).

Appellate Authority :The CSC can hear appeals in disciplinary cases for employees not covered by contract; appeals regarding involuntary leaves of absence; appeals from examination ratings; and appeals from actions of the President of the Commission,

Investigative Authority : The CSC can investigate any matter concerning the enforcement and effect of the Civil Service Law or Rules.

The CSC is comprised of three members appointed by the Governor, on the advice and consent of the State Senate. By law, no more than two Commissioners can be members of the same political party. The Governor designates one of the three Commissioners as the President of the Commission.

The CSC conducts its business during its annual schedule of eleven monthly meetings. 

The Commission Meeting Calendar lists the issues before the CSC at each monthly meeting.

  1. Executive Items :

Jurisdictional: By law, classified service positions are in the competitive jurisdictional class, unless the CSC acts to approve placement outside of the competitive class. CSC resolutions are signed by the President of the Commission and take effect upon signature by the Governor and filing with the Secretary of State.

Text Amendments:The CSC can amend the text of the Rules for the Classified Service, Attendance   Rules and the Regulations of the State CSC (Commission's Regulations).

  1. Staffing Services : The Civil Service Law allows for discretionary unpaid leaves of absence for permanent employees who depart State service or accept State positions outside of the competitive class. CSC approval

      is required to extend these leaves beyond the original two-year period.

  1. Reinstatements : Within one year of resignation, an agency may restore a former permanent employee to his or her previous job, without examination, if the position is unfilled when reinstatement is sought. Beyond one year from the resignation date, reinstatement requires Commission approval.

4.      The Testing Program:

      Committee on Appeals: The Establishment of Rating Keys for Written Tests.

      Two members of the CSC act as Chairpersons of the Committee(s) on Appeals.The Committee on Appeals decides whether the exam rating keys should be adjusted, based upon candidates' objections and the Testing Division's analyses. CSC approve final rating keys, eligible lists can be established.

      The CSC examines proposed changes to the text of municipal civil service rules and proposed changes to the rules.

      RSSL § 211 authorizes the State CSC to waive the § 212 income limitations. A § 211 waiver enables a retiree to accept a full-time government job without compromising the pension benefit earned from prior service

5 . Extensions in Service Over Age Seventy (Superannuation Retirement): Employees who remain subject to RSSL § 70 must obtain CSC approval to continue in office.

6.   Appeals: Aggrieved individuals can appeal departmental actions to the CSC, Appeals from Determinations of the Staffing Services Division , Candidate Disqualification, Appeals from Determinations of the Testing Services Division, Appeals from Determinations of the Director of the Division of Classification and Compensation, Appeals from Determinations of the Employee Health Service Regarding Eligibility under the CSL § 55 (b)(c) Programs & Appeals Regarding Disability Leaves and Reinstatement Issues, a) Reinstatement after Separation for Disability under Workers' Compensation (CSL § 71 b) Leave for Ordinary Disability (CSL § 72 c) Separation for Ordinary Disability; Reinstatement (CSL § 73) d) Employee Disciplinary Proceedings (CSL § 75 and § 76)

7          Merit Awards: State worker or retiree is eligible to submit ideas through the Employee Suggestion Program.

            Suggestions recommended for an award, is approved by CSC. Awards can range from a Certificate of Merit     to payments totaling $50,000

      8    Conferences : Parties with business before the CSC can request a Conference with the Commission.

Section 75 case dismissed- Misconduct due to Mental Disability Section 72 applies

NYC Human Resources Administration v. Barnes

 This Office of Administrative Trials and Hearings (OATH) case was decided by ALJ Alessandra Zorgniotti on November 15, 2007.   Human Resources Administration (HRA) filed charges under Section 75 of the Civil Service Law against the respondent Barnes. Ms. Barnes had been involuntarily committed by her son and did not appear at the hearing. 

The issue was whether the misconduct which resulted in charges being filed by HRA against Ms. Barnes was the result of a mental disability.  Trial testimony revealed that after the death of her child’s father and her mother Ms. Barnes behavior took a radical turn for the worse.  Respondent had been previously described as “warm; soft spoken and respectful.” 

The Court held that the evidence proved that the misconduct was the result of a mental disability and that HRA should have filed an action under Section 72 of the Civil Service Law rather than Section 75. Finally, the ALJ held that OATH could not convert a disciplinary hearing to a disability hearing  in the respondent’s absence but left HRA the option to proceed under Section 72 for a disability leave. 

Corrections Officer's Article 78 Petition to Reverse Termination Denied

                                                                                                                                               

Matter of Curtis Marshall v. Martin Horn

Index No.: 100879/07   SUPREME COURT, NEW YORK COUNTY

 In this Article 78 proceeding, Petitioner sought a judgment annulling the determination of Mr. Martin Horn, which terminated his employment as a correction officer. Respondent sought to dismiss the petition for failure to state a cause of action.  

Petitioner was a probationary correction officer with DOC. He stopped at a local bodega and bought a straight edge razor in order to make an opening inside the stitched area of the upper left side of his new regulation shirt so that he could affix his shield to the shirt. After using the razor, Mr. Marshall placed it in a small plastic container which he put in his gym bag. He then reported to work to begin his 7:OO a.m. to 3:OO p.m. tour of duty.

Upon entering his work site, Petitioner placed his gym bag on the x-ray scanner and proceeded to walk through security.  The correction officer manning the security post, noticed the razor in Petitioner’s gym bag and instructed him to put it in the amnesty box outside. The officer on dutyinformed Petitioner that she would have to report the incident.

 After being transferred to a different assignment the Petitioner was terminated from his position.

Petitioner then commenced this Article 78 proceeding by the filing a notice of petition and

verified petition on January 19,2007, challenging DOC’S determination that he be discharged on the

grounds that DOC’S actions were arbitrary, capricious and made in bad faith.

Petitioner asserts in his petition that DOC’S decision to terminate him for mistakenly placing the razor in the gun box instead of the amnesty box lacked a rational basis because his

 “unfamiliarity with the amnesty box does not violate any rule or regulation and the only directive pertaining to amnesty boxes makes clear that it exists for individuals visitingthe correction facilities.”

The Court wrote that :

“Inasmuch as the petition fails to “allege evidentiary facts suggesting that the dismissal was motivated by an improper purpose or bad faith,” the petition must be dismissed for failure to state a cause of action.

The cross motion to dismiss the petition was granted.

Overview of New York State Civil Service Commision

The New York State Civil Service Commission

The CSC exercise authority over the classified civil service of the State.

The CSC retains broad merit system oversight responsibilities for both State and local government.

The functions of the Commission can be divided into three categories:

Quasi-Legislative Authority :The Commission promulgates rules and regulations for the classified service (this includes the Rules for the Classified Service and the Commission's Regulations).

Appellate Authority :The CSC can hear appeals in disciplinary cases for employees not covered by contract; appeals regarding involuntary leaves of absence; appeals from examination ratings; and appeals from actions of the President of the Commission,

Investigative Authority : The CSC can investigate any matter concerning the enforcement and effect of the Civil Service Law or Rules.

The CSC is comprised of three members appointed by the Governor, on the advice and consent of the State Senate. By law, no more than two Commissioners can be members of the same political party. The Governor designates one of the three Commissioners as the President of the Commission.

The CSC conducts its business during its annual schedule of eleven monthly meetings. 

The Commission Meeting Calendar lists the issues before the CSC at each monthly meeting.

  1. Executive Items :

Jurisdictional: By law, classified service positions are in the competitive jurisdictional class, unless the CSC acts to approve placement outside of the competitive class. CSC resolutions are signed by the President of the Commission and take effect upon signature by the Governor and filing with the Secretary of State.

Text Amendments:The CSC can amend the text of the Rules for the Classified Service, Attendance   Rules and the Regulations of the State CSC (Commission's Regulations).

  1. Staffing Services : The Civil Service Law allows for discretionary unpaid leaves of absence for permanent employees who depart State service or accept State positions outside of the competitive class. CSC approval

      is required to extend these leaves beyond the original two-year period.

  1. Reinstatements : Within one year of resignation, an agency may restore a former permanent employee to his or her previous job, without examination, if the position is unfilled when reinstatement is sought. Beyond one year from the resignation date, reinstatement requires Commission approval.

4.      The Testing Program:

      Committee on Appeals: The Establishment of Rating Keys for Written Tests.

      Two members of the CSC act as Chairpersons of the Committee(s) on Appeals.The Committee on Appeals decides whether the exam rating keys should be adjusted, based upon candidates' objections and the Testing Division's analyses. CSC approve final rating keys, eligible lists can be established.

      The CSC examines proposed changes to the text of municipal civil service rules and proposed changes to the rules.

      RSSL § 211 authorizes the State CSC to waive the § 212 income limitations. A § 211 waiver enables a retiree to accept a full-time government job without compromising the pension benefit earned from prior service

5 . Extensions in Service Over Age Seventy (Superannuation Retirement): Employees who remain subject to RSSL § 70 must obtain CSC approval to continue in office.

6.   Appeals: Aggrieved individuals can appeal departmental actions to the CSC, Appeals from Determinations of the Staffing Services Division , Candidate Disqualification, Appeals from Determinations of the Testing Services Division, Appeals from Determinations of the Director of the Division of Classification and Compensation, Appeals from Determinations of the Employee Health Service Regarding Eligibility under the CSL § 55 (b)(c) Programs & Appeals Regarding Disability Leaves and Reinstatement Issues, a) Reinstatement after Separation for Disability under Workers' Compensation (CSL § 71 b) Leave for Ordinary Disability (CSL § 72 c) Separation for Ordinary Disability; Reinstatement (CSL § 73) d) Employee Disciplinary Proceedings (CSL § 75 and § 76)

7          Merit Awards: State worker or retiree is eligible to submit ideas through the Employee Suggestion Program.

            Suggestions recommended for an award, is approved by CSC. Awards can range from a Certificate of Merit     to payments totaling $50,000

      8    Conferences : Parties with business before the CSC can request a Conference with the Commission.

Late Notice dooms suit for School Employee

Matter of Angarano v. Harrison Cent. School Dist. (Special Term, Westchester County)

Petitioner was a probationary employee of Respondent School District.  During his probationary period, Petitioner was accused of sexual harassment by two co-workers and subsequently terminated based on Respondents’ findings during the investigation of the sexual harassment claims.  Petitioner sought reinstatement claiming that Respondents’ decision to terminate him was in bad faith because it was not based on the sexual harassment claims, but, instead, those claims were solicited and used as a pretext for respondent to terminate Petitioner.  The Court found for Respondents, but never reached the merits of the case.  Instead, it dismissed Petitioner’s claim for failure to file a notice of claim to the School District within the appropriate three month time period.  While not deciding the case on the issue of whether termination was proper, the court discussed that issue and reasoned Respondents’ decision was based in good faith and neither arbitrary nor capricious, so still would be upheld.

The Harrison Central School District website is

www.harrisoncsd.org/

Deputy Sheriff's Article 78 denied - Firing for off duty investigation was proper

Matter of Eck v. County of Del. (App Div Third Dept)

A deputy Sheriff was terminated after it was found that he had engaged in an off-duty investigation of another employee and his ex-wife.  Petitioner brought an Article 78 appeal for reinstatement.  Termination was upheld as proper.  It was determined that there was sufficient evidence to show that he used his position to conduct the surveillance and his conduct amounted to conduct unbecoming of  a County employee.