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

Thursday, October 30, 2014

Using the services of a private entity to select and provide qualified medical personnel to conduct medical examination required by Civil Service Law §72.1

Using the services of a private entity to select and provide qualified medical personnel to conduct medical examination required by Civil Service Law §72.1
Agency v Anonymous, OATH Index #866/14  

Civil Service Law §72.1, in pertinent part, provides: “When in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workers' compensation law, the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction.”

In the course of a hearing brought pursuant to §72 of the Civil Service Law,* Anonymous contended that the statutory requirement providing for the selection of the physicians who were to examine her was violated because she was examined by doctors who were selected by a private entity, JurisSolutions,** and not by physicians selected by the Department of Citywide Administrative Services (DCAS).

OATH Administrative Law Judge Kevin A. Casey found that the controlling provisions of the Civil Service Law were complied with, holding that DCAS’s delegation of the task of recruiting qualified medical specialists to perform §72 fitness-for-duty examinations to JurisSolutions did not constitute an unlawful delegation of its statutory authority.

Judge Casey found that while JurisSolutions employed the physicians who examined Anonymous, DCAS maintained control over the process by specifying minimum criteria for each specialty and retaining, in its the sole discretion, the authority to reject a doctor named by JurisSolutions to conduct the examination.*** Accordingly, said the ALJ, DCAS “did not unlawfully delegate its authority by contracting with a vendor to provide qualified, independent doctors to perform fit-for-duty examinations.”

Further, the ALJ found that Anonymous failed to show prejudice on the part of the independent and well qualified physicians who examined her..

Judge Casey's findings and recommendation were adopted by the appointing authority.

* Civil Service Law §72.1 provides that “An employee shall be allowed ten working   days from service of the notice to object to the imposition of the   proposed leave of absence and to request a hearing.

** JurisSolutions is a vendor selected by the New York Department of Citywide Administrative Services to provide qualified medical personnel in designated specialties “to conduct fitness-for-duty examinations.”

*** DCAS's delegation of its administrative authority appears to comply with the guidelines set out by the U.S. Supreme Court in Schechter Poultry Corp. v. United States, 295 U.S. 495, in addressing the delegation of legislative powers by Congress.

Wednesday, October 29, 2014

Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff

Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff
Matter of the Arbitration between Hudson Val. Community Coll. and Hudson Val. Community Coll. Faculty Assn., 2014 NY Slip Op 07240, Appellate Division, Third Department

Christine Raneri, a part-time adjunct professor employed by the Hudson Valley Community College (HVCC), was appointed as a full-time probationary teacher by the College in 2007. In March 2012, HVCC notified Raneri that “her position had been retrenched,” and that her employment would end in August 2012.

The Hudson Valley Community College Faculty Association [Association] submitted a grievance on Raneri's behalf challenging HVCC's decision to retrenchment her from the position. HVCC's president denied the grievance following a hearing and the Association served a demand for arbitration on the college.

HVCC and the County of Rensselaer commenced an Article 75 CPLR action seeking a permanent stay of arbitration [proceeding No. 1]. The Association answered and then cross-petitioned to compel arbitration. The Association also initiated an Article 78 action, proceeding No. 2 against the County, the Board of Trustees of HVCC and others challenging Raneri's retrenchment on the merits. HVCC moved to dismiss the CPLR Article 78 petition.

Supreme Court granted HVCC’s petition in proceeding No. 1, permanently staying arbitration, denied the Association’s cross petition in proceeding No. 1 to compel arbitration, and dismissed the Association’s CPLR Article 78 proceeding (proceeding No. 2).

In its appeal from Supreme Court's ruling concerning proceeding No. 1 the Association contended that Supreme Court erred in determining that the issue of retrenchment was excluded from arbitration by the terms of the CBA and thus was incorrect in permanently staying the arbitration.

The Appellate Division disagreed with the Association’s claim, holding that the sole issue before Supreme Court was whether the CBA reveals that the parties agreed to arbitrate this grievance. Noting that the CBA provides that grievances — defined as claims "based upon the interpretation or application of" the CBA — are generally subject to arbitration, the court pointed out that the controlling CBA also provided that "[m]atters relating to [HVCC's] decision to retrench, fill, refill, establish and/or re-establish bargaining unit positions shall not be arbitrable hereunder”. The CBA further provided that if such a staffing issue is grieved, “the decision of the [HVCC] President or designee shall be final and binding and shall constitute the exclusive remedy thereunder."

The Appellate Division, agreeing with Supreme Court, said that this language clearly and “unambiguously manifests the parties' intention to exclude the subject matter of retrenchment from arbitration.”

Turning to the Association’s challenge to the Supreme Court’s dismissal of its Article 78 petition, the Appellate Division said that in reviewing such a claim, a court may not substitute its judgment for that of the administrative body and must confirm the challenged determination unless the body "acted in excess of [its] jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of [its] discretionary power," citing Pell v Board of Educ, 34 NY2d 222.

The court rejected the Association’s argument that the reason given by HVCC to Raneri for the retrenchment — the discontinuance of a particular program — was pretextual.

Although the Association contended that minutes from a curriculum committee meeting held in the same month as the retrenchment revealed that the faculty was advised that the discontinuance would have no impact on student numbers or faculty hours, the Appellate Division noted that affidavits in the record also reveal that, for economic reasons, HVCC was reducing the number of sections in Raneri's teaching area at the time in question and increasing the number of students in each section.

The Association also claimed that the retrenchment violated the CBA in that the positions of two faculty members in Raneri's teaching area who had less seniority "were not retrenched." The court said that the record showed that both of these instructors were ASE-certified and were scheduled to teach a full load of courses for which this certification was required — and which Raneri, not being ASE-certified, could not teach — in the fall of academic 2012.

Thus, the Appellate Division concluded, "the retrenchment of Raneri's position" was in conformity with a requirement in the CBA that such actions "shall be made in inverse order of seniority provided a faculty member has the qualifications to teach the courses to be taught" (emphasis in the decision).*

Regarding the Association’s claim that an incumbent serving in an adjunct faculty should be laid off first, the court noted that the adjunct faculty member also possessed ASE certification and taught classes for which such certification was required; thus, retrenching his position would not have prevented Raneri's being laid off

As the record revealed that assignments were made for legitimate reasons having to do with the instructors' qualifications and other responsibilities, the Appellate Division said that “Supreme Court did not err in determining that HVCC's decision was not arbitrary or capricious, an abuse of discretion or in violation of lawful procedure.”

* The Appellate Division said that it agreed with Supreme Court's view that “this provision requires a faculty member to be qualified to teach upcoming classes, rather than those for which the faculty member's qualifications may have sufficed in previous years.”

The decision is posted on the Internet at:

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

Tuesday, October 28, 2014

Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment
2014 NY Slip Op 07270, Appellate Division, First Department

Among the issues considered in this appeal was the teacher’s [Teacher] claim that she had suffered retaliation as a result of her having sued the New York City Department of Education [NYCDE] and having made statements to the media.

The Appellate Division held that neither Teacher's lawsuit nor her statements to the media constituted protected speech under the First Amendment or Article I, §§8 and 9 of the New York Constitution “as they primarily concern personal grievances, rather than matters of public concern.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern. In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution. As the court explained in Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, a public employee’s speech is not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

As to Teacher’s claim that she had suffered age discrimination within the meaning of the State and City Human Rights Laws, respectively Executive Law §290 et seq. and the Administrative Code of City of NY §8-101 et seq., the Appellate Division said that her allegations that she was 51 years old and was treated less well than younger teachers were insufficient to support her claims.

Addressing Teacher’s hostile work environment allegations, the court said that these claims also fail “because [NYCDE’s] alleged behavior amounts to "no more than petty slights or trivial inconveniences."

In Clauberg v State of New York, 95 AD3d 1385, the Appellate Division explained that “To support a retaliatory hostile work environment claim, the actions complained of must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus All of the circumstances must be considered, including "the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.”

In a case involving similar “free speech - retaliation” issues, Golodner v Berliner, USCA, 2nd Circuit, Docket #12-1173, Golodner filed a 42 USSC 1983 action against the City of New London  and two City officials, alleging the defendants retaliated against him for exercising his rights under the First Amendment when he filed an earlier lawsuit against the City and several of its police officers (“Golodner I”).

The United States District Court for the District of Connecticut held that the speech in Golodner I constituted speech on a matter of public concern protected under the First Amendment, and that Golodner’s right to engage in this form of speech was clearly established at the time of the alleged retaliation. The Circuit Court of Appeals affirmed the district court’s denial of the City's motion for summary judgment and remanded the case for further proceedings.

The "Teacher" decision is posted on the Internet at:

The Golodner decision is posted on the Internet at:

Monday, October 27, 2014

COLA increases for dollar limitations on benefits and contributions

Retirement plan contributions - limitations on benefits and contributions
Source: The Internal Revenue Service

The Federal tax law places limits on the dollar amount of contributions to retirement plans and IRAs and the amount of benefits under a pension plan. §415 of the Internal Revenue Code requires the limits to be adjusted annually for cost-of-living increases. Interested readers should discuss this with their tax advisor.

Information and a table listing the dollar limitations for 2013, 2014 and 2015, and a number of Internal Revenue Code references, are posted on the Internal Revenue Service’s website at:.

A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law

A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law
Yan Ping Xu v New York City Dept. of Health & Mental Hygiene, 2014 NY Slip Op 07261, Appellate Division, First Department

One of the issues in this Article 78 action concerned the termination of Yan Ping Xu [YPX], a New York City employee serving as a "City Research Scientist I," a position in the noncompetitive class .

Under the controlling Personnel Rules and Regulations of the City of New York, persons appointed to a position in the noncompetitive class are subject to a probationary period of six months unless another period is set by the Commissioner of the Department of Citywide Administrative Services (DCAS).* 

YPX was terminated from her position without notice and hearing after this six-month probationary period had passed. HMH contended that YPX was subject to a probationary period of one year in accordance with the provisions of the governing collective bargaining agreement (CBA) and HMH’s own probationary termination policy.

The Appellate Division said that there was “no evidence that, during the period of [YPX’s] employment, the Commissioner of DCAS had altered the default six-month probationary period for the City Research Scientist I position.” Indeed, said the court, “the record contains a letter from DCAS expressly confirming that, ‘during the period June 30, 2007 to March 16, 2008, no . . . DCAS document existed’ that "provided for a civil service probationary period different than the one specified in [Personnel Rule and Regulation] 5.2.1."

As to HMH’s reliance on the provisions of the CBA with respect to YPX’s probationary period, the court pointed out that “[e]ven if the CBA could trump Personnel Rule 5.2.1(b), the CBA provision relied on by [HMH] does not in any way set forth a probationary period for noncompetitive employees.”**

Nor, said the Appellate Division, does HMH’s termination policy, which purport to provide for a probationary period of one year for City Research Scientists, serve to change the probationary period for City Research Scientist I positions as only the Commissioner of DCAS, and not the head of any other agency, may set probationary periods for employees appointed to positions in the noncompetitive class at something other than the period set by the Commissioner of DCAS.***

Accordingly, the court said it found YPX was subject to a probationary term of six months and upon the expiration of that six-month period she became a “tenured employee.”****

The Appellate Division remanded the matter to HMH “for further consideration of [YPX’s] claim of unlawful termination.”

* Such personnel regulations have the force and effect of law.

** See, for example, Gordon v Town of Queensbury, 256 AD2d 784. In Gordon the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.

*** The court noted that HMH did not cite any provision of law that gives it the authority to establish a different probationary period for persons appointed to the title of City Research Scientist I. a position in the noncompetitive class of the classified service as defined in the Civil Service Law..

**** In its decision the court said that YPX became a “permanent” employee. However, an employee serving a probationary period is a permanent employee and attains tenure in the title upon his or her successful completion of the probationary period. Civil Service Law §63.1, in pertinent part, provides that a “… municipal civil service commissions may provide, by rule, for probationary service … upon appointment to positions in the exempt, non-competitive or labor classes….” and “shall, subject to the provisions of this section, provide by rule for the conditions and extent of probationary service” [see Civil Service Law §63.2].

The decision is posted on the Internet at:

The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption

The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption
Jaronczyk v Mangano, 2014 NY Slip Op 07164, Appellate Division, Second Department

The basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. Further, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.In contrast, a FOIL request is required in the event the custodian of the public record[s] sought declines to voluntarily provide the information or record requested. 

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

John Jaronczyk wanted certain overtime records maintained by the Nassau County Sheriff's Department. Nassau initially denied Jaronczyk access, contending that the records contained the signatures of the captains who approved overtime requests but ultimately provided the requested records after redacting the signatures on the records that were provided.

Nassau argued that that redaction was proper pursuant to the "unwarranted invasion of personal privacy" statutory exemption, citing Public Officers Law § 87[2][b], claiming that disclosing the captains' signatures "would result in economic or personal hardship to the subject party" and the signatures were "not relevant to the work of the agency." 

The Appellate Division rejected Nassau's argument, stating that because Nassau had failed to “proffer more than conclusory assertions supporting these claims,” Supreme Court had correctly determined that Nassau failed to meet its burden of demonstrating that the information requested fell within this statutory exemption and thus, properly directed disclosure of the records without these redactions.

The court observed that the agency denying access to the records demanded has the burden of demonstrating that the information sought falls within a statutory exemption, "which exemptions are to be narrowly construed." As the Court of Appeals held in Westchester Rockland Newspapers v Kimball, 50 NY2d 575, cited by the Appellate Division in its decision, "FOIL compels disclosure, not concealment." wherever the agency fails to demonstrate that a statutory exemption applies.

The Appellate Division explained that in order to survive a challenge to the custodian of the record's refusal to release the records demanded requires the entity resisting disclosure to "articulate a particularized and specific justification for denying access'" and "conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed."

Noting that a court may award an attorney's fee and costs to a petitioner in conjunction with a FOIL request where the petitioner has substantially prevailed, and “(i) the agency had no reasonable basis for denying access; or (ii) the agency failed to respond to a request or appeal within the statutory time,” the Appellate Division said that, contrary to the Nassau's contention, the fact that  Nassau provided access to redacted documents during the pendency of the proceeding does not preclude a determination that Jaronczyk  substantially prevailed. Rather it is only one factor to be considered in determining whether an award of an attorney's fee and costs under the circumstances is appropriate.

Finding that Nassau failed to articulate a reasonable basis for redacting the signatures at issue, and because the Jaronczyk prevailed on this issue, the Appellate Division ruled that Supreme Court “did not improvidently exercise its discretion in granting that branch of the petition which was for an award of an attorney's fee and costs.”

* See, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality.

The decision is posted on the Internet at:

Friday, October 24, 2014

An appointing authority may not ignore statutory procedures and thereby deprive public employees of the protection of the statute

An appointing authority may not ignore statutory procedures and thereby deprive public employees of the protection of the statute
Thornton v Saugerties Cent. Sch. Dist., 2014 NY Slip Op 07046, Appellate Division, Third Department

The School District’s [District] data administrator’s [Thornton] position was abolished for budgetary reasons upon the School District’s purchase of data management services from a Board of Cooperative Educational Services (BOCES). The duties of the former District data administrator were assumed by existing staff members of BOCES. When the District denied Thornton’s request to by transferred to BOCES pursuant to Civil Service Law §70(2), she be transferred to BOCES to perform her former duties.

Thornton then commenced an Article 78 proceeding seeking reinstatement to her former position and transfer to BOCES, and reinstatement of her employee benefits.

When Supreme Court dismissed the petition on the merits, finding that Thornton had no clear right to the relief requested because she was not a necessary employee within the meaning of Civil Service Law §70(2), she appealed.

The Appellate Division held that Supreme Court should have addressed the District's motion seeking dismissal of the petition as untimely and, if it was denied, permitted the District to answer before ruling on the merits. The court, accordingly, said that it would statute of limitations defense advanced by the District. 

The CPLR required Thornton to commence her Article 78 action within four months after the District's determination became final and binding upon her. However, to determine when the statute of limitations began to run, the Appellate Division said it must first address whether Civil Service Law §70(2) applies in this instance, explaining that:

1. If it does not apply, this is a common termination of public employment case and, because no administrative hearing is required and the statutory "period runs from the notice of discharge, or the effective DAte of discharge, if later." If §70(2) did not apply in this instance, Thornton’s petition was untimely.

2. If Civil Service Law §70(2) did apply in Thornton's situation, the court characterized the situation, as “more complicated” and the statute of limitations would normally run from the performance of certain obligations by the District.* The District, however, did not believe that §70(2) applied in this situation and did not perform those statutory obligations.

In this instance Civil Service Law §70(2) was triggered "[u]pon the transfer of a function" from the District to BOCES and the District’s decision to move its own data management services to BOCES constituted the "transfer of a function" within the meaning of the statute.

Accordingly, §70(2) required the District and BOCES to comply with a number of procedural steps. including the District's providing BOCES with a list of the names and titles of all District employees who were "substantially engaged in the performance of the function to be transferred” not less than 20 days before any such transfer and, in addition, to publicly post that list along with a copy of the statute. This, explained the court, would provide all District employees time to give written notice of protest to BOCES and the District of their "inclusion in or exclusion from such list" prior to the effective date of the change.

If BOCES received any such protests, it had 10 days within which to review the protest, consult with the District and notify the employee of the determination regarding such protests. That determination would be “a final administrative determination,” whereupon the District would then be required to determine which employees on the list were necessary to be transferred by considering the relevant statutory criteria as well as whether BOCES had sufficient staff to provide the transferred services. Employees not so transferred would have their names placed on a preferred list for the same or similar positions at both the District and BOCES in accordance with §§80 and 80-A of the Civil Service Law.

Noting that when analyzing the statute of limitations question the court must consider the purpose of the statute, in this instance to protect the employment rights of public employees, and the mandatory nature of the statute's procedural requirements. “Ignoring the statutory procedure” said the court, “would deprive public employees of the protection of the statute and reward public employers by giving them the advantage of a shorter statute of limitations for challenges when they fail to perform their statutory obligations. This we cannot countenance.”

Considering the series of events in Thornton’s situation, the Appellate Division concluded that her Article 78 petition was timely and the District's statute of limitations defense must be rejected. In a footnote to its decision the court indicated that “Although the statute of limitations determination is intertwined with the merits of the petition, under the procedural posture of this case, we may consider factual affidavits when addressing the statute of limitations defense even though it might not be proper to consider those affidavits to decide the merits at this time.”

* In addition, the provisions of §§80 and 80-a of the Civil Service Law would be triggered if any employee would be laid off as the result of the abolisement of a position.

The decision is posted on the Internet at:


The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on


Thursday, October 23, 2014

A legal opinion by a municipal attorney is advisory

A legal opinion by a municipal attorney is advisory
Comptroller of the City of New York v Department of Fin. of the City of New York, 2014 NY Slip Op 24309, Supreme Court, New York County

In this special proceeding, the Comptroller of the City of New York [the Comptroller] asked Supreme Court to compel the City’s Department of Finance (DOF) to honor a subpoena served on it by the Comptroller. DOF responded by asking the court to quash the subpoena.

The Comptroller had served DOF with a subpoena seeking documents and testimony in connection with an audit that was being conducted by his office. The subpoena was accompanied by a proposed confidentiality agreement.

DOF told the Comptroller that it would not comply with the subpoena, citing an opinion of the City’s Corporation Counsel, Opinion 10-91, in which the then Corporation Counsel concluded that "the [State’s] tax secrecy laws prevent [the DOF] from producing the subpoenaed documents [involving tax information] and giving testimony with respect thereto."

The Corporation Counsel had opined in Opinion 10-91 that the City Charter, as a local law, could not satisfy the "as otherwise provided by law" exception to tax secrecy, reasoning that the relevant sections of State Law must be construed as a controlling state law and so a local law such as the City Charter could not be a "law" within the meaning of the phrase "as otherwise provided by law."

The court noted that §93(a) of the City Charter authorizes the Comptroller to advise the Mayor and City Council "on the financial condition of the [C]ity or any phase thereof and make such recommendations, comments and criticisms in regard to the operations, fiscal policies and financial transactions of the [C]ity as he or she may deem advisable in the public interest." Also, §93(c) of the Charter, in pertinent part, provides that: the Comptroller “shall be entitled to obtain access to agency records required by law to be kept confidential, other than records which are protected by the privileges for attorney-client communications, attorney work products, or material prepared for litigation, upon a representation by the comptroller that necessary and appropriate steps will be taken to protect the confidentiality of such records.”*

The court granted the Comptroller’s petition, denying DOF’s counterclaim, explaining that while DOF relies on Opinion 10-91 in asserting that it cannot turn over such returns to the Comptroller, that opinion has no precedential value.

Citing Slevin v Siegel, 65 Misc 2d 3, the court said that "[A] legal opinion by a municipal attorney is purely advisory and, right or wrong, it is the opinion of the issuing attorney."** Further, said the court, “To hold the Comptroller ‘bound by all opinions of the Corporation Counsel would . . . be unwise as a matter of public policy [and] would elevate the Corporation Counsel … to a position of supremacy among   officials,’" citing Matter of City of New York (Beame), a New York Supreme Court decision reported in the New York Law Journal dated December 3, 1970.

In support of its ruling, Supreme Court noted the decision handed down in “McCall v Barrios-Paoli, 93 NY2d 99 (1999), a case cited by the Comptroller as supporting the Comptroller's position that he should be permitted to obtain the tax information requested.” The court noted that, as dicta,*** in McCall the Court of Appeals commented "the City concedes that the State Comptroller is authorized to conduct financial audits of City agencies - - a duty similarly assigned by the City Charter to the City Comptroller."

* In addition to the ability to audit city agencies pursuant to §93(c), the Comptroller has the "power to audit and investigate all matters relating to or affecting the finances of the [C]ity, including without limitation the … receipt and expenditure of [C]ity funds . . . and to take the testimony under oath of such persons as the comptroller may deem necessary." [see New York City Charter § 93(b)]. The power to take testimony pursuant to §93(b) includes the power to subpoena documents. [see New York World's Fair 1964-1965 Corp. v Beame, 22 AD2d 611].  

** Similarly, in Matter of Nelson v New York State Civ. Serv. Commn., 46 A.D.2d 132, affd. 63 N.Y.2d 802, the Appellate Division said “In reaching this conclusion, we are not unmindful that an opinion of the Attorney-General is usually accorded great deference but we are not bound by an erroneous interpretation of law.”

*** The term “dicta” is used to describe that part of a judicial opinion that is a comment by the court that does not directly address the specifics of the case being decided but may prove helpful to the reader.

The decision is posted on the Internet at:

Wednesday, October 22, 2014

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system
Battisti v City of New York, 2014 NY Slip Op 07065, Appellate Division, First Department

Anthony Battisti was found guilty of misconduct after a disciplinary hearing and terminated from his employment with the New York City Police Department [NYPD]. He appealed NYPD’s determination and asked Supreme Court to [1] vacate the disciplinary action and [2] direct that NYPD “credit [him] with certain days withheld from the calculation of his service for pension purposes.”

Supreme Court transferred so much of Battisti’s petition that challenged the disciplinary determination to the Appellate Division and denied that part of Battisti’s petition that sought an order directing that he be credited with “certain days withheld from the calculation of his service for pension purposes.”

With respect to Battisti’s challenge to the disciplinary hearing proceeding, the Appellate Division held that “Substantial evidence supports the findings of the Assistant Deputy Commissioner for Trials that [Battisti] was guilty of the proffered charges,….”*

Addressing Battisti’s claims with respect his entitlement to member service credit in the retirement system, the court noted that in the course of the Battisti’ disciplinary action he was suspended without pay for a total of 99 days.

The initial 30-day suspension followed disciplinary charges that alleged that he had "knowingly associated with …. an individual reasonably believed to have engaged in criminal activity.” A second 69-day suspension without pay followed after the disciplinary charges were amended based on criminal charges filed against him as a result of an arrest in another jurisdiction.

Battisti argued that because Civil Service Law §75(3-a), as well as Administrative Code of City of NY §14-115, cap suspensions without pay of public employees awaiting hearing and determination of disciplinary charges at 30 days, he is entitled to be credited with 69 days of member service credit and thus is eligible for a retirement allowance based on his total member service.

NYPD’s answer on this point indicated that it had issued a check to Battisti reflecting its internal determination that he had been improperly suspended without pay for 39 days and was entitled to compensation for those days. This left just 60 days of suspension without pay. Further, said the Appellate Division, NYPD did not dispute the fact that all days for which a member of NYPD is paid are to be included in the calculation of time for purposes of all benefits, including pension.

The Appellate Division concluded that, assuming arguendo, that the NYPD properly suspended petitioner without pay for two 30-day periods based on distinct offenses resulting in 60 days of suspension without pay, based on NYPD's calculations it appears that Battisti had completed twenty years of creditable service as of the effective date of his termination.

Finding that NYPD had not set forth any legal basis for its subsequent internal determination to treat nine of the 39 days that had been credited to Battisti as suspensions without pay, notwithstanding the limit set by Civil Service Law §75(3-a), the Appellate Division ruled that “[a]bsent such explanation for excluding the nine days from the calculation of creditable service, the determination to deny [Battisti] a pension was arbitrary and capricious in that it was taken "without regard to the facts."

* The court said that Battisti’s “arguments concerning [a witness’s] credibility and motive to lie at the [disciplinary] hearing are beyond the review of this Court,” citing, Berenhaus v Ward, 70 NY2d 436.

The decision is posted on the Internet at:

Tuesday, October 21, 2014

Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days

Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days
Alarcon v Board of Educ. of S. Orangetown Cent. School Dist , Appellate Division, Second Judicial Department, 2014 NY Slip Op 06969. [Alarcon II]

In Alarcon I, [Alarcon v Board of Educ. of S. Orangetown Cent. School Dist., 85 AD3d 780], the Appellate Division directed the reopening of the disciplinary hearing after finding that a key witness against Alarcon recanted the testimony he gave at the disciplinary hearing.  

The court explained that the South Orangetown Central School District had adopted the findings and recommendation of the disciplinary hearing officer who found Marco Alarcon guilty of certain charges of misconduct and incompetence, and recommended that Alarcon's be dismissed from his position. However, said that Appellate Division, the hearing officer's recommendation that Alarcon be terminated from service "was largely based upon the testimony of the eyewitness," one Ramon Reyes.

After Reyes testified, but prior to the issuance of the hearing officer's report and recommendation, Reyes had recanted his testimony and, in a sworn affidavit, stated that the testimony he had given at the disciplinary hearing was false and that he gave such false testimony because his supervisor directed him to lie. 

Under the circumstances, the Appellate Division annulled the Board’s determination on the law and remitted the matter for a hearing at which Alarcon was to be given the opportunity to recall Reyes to testify and directed that the Board receive “this newly discovered evidence” and make a new determination.

A second hearing was conducted, after which the Board of Education adopted the findings and recommendation of a hearing officer who had found the Alarcon guilty of certain charges of misconduct and incompetence and recommended that he be dismissed from his position. The Board again imposed the penalty of dismissal and terminated Alarcon’s employment with the School District.

Alarcon challenged the Board’s action, which the Appellate Division addressed in instant appeal, Alarcon II.

In Alarcon II the court sustained the Board’s action and found that contrary to Alarcon’s contention, the challenged determination was:

1. Supported by substantial evidence in the record; and

2. The penalty imposed by the School Board was not so disproportionate to the offenses as to be shocking to one's sense of fairness.

The Appellate Division, however, sustained Alarcon’s claim that he was entitled to back pay and benefits "for any period of suspension in excess of 30 days, including the period commencing with an earlier determination terminating his employment," which was previously annulled by the Appellate Division in Alarcon I, up to the date of the determination by the Appellate Division in Alarcon II, “excluding any delay occasioned by him, and less any unemployment insurance benefits received for that period.”

The court than remitted the matter to the School Board to calculate the amount of “back pay and benefits to which [Alarcon] is entitled, if any, and to pay him that amount.”

Another decision in which “tainted testimony” was the basis for overturning a disciplinary determination is Buric v Safir, 285 A.D.2d 255, leave to appeal dismissed, 98 NY2d 688. This case also involved a claim for back salary and benefits that, under there relevant circumstances, was denied.

The decision in Alarcon I is posted on the Internet at:

The decision in Alcarcon II is posted on the Internet at:

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on

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

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on


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


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

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

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

Copyright© 1987 - 2014 by the Public Employment Law Press.


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