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Thursday, July 02, 2015

New York City’s Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels


New York City’s  Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels

New York City’s  Office of Administrative Trials and Hearings [OATH} is accepting applications from qualified persons who would like to serve on Contract Dispute Resolution Board (CDRB) panels.

Each CDRB panel consists of an OATH ALJ, as chair, a representative of the Mayor’s Office of Contract Services, and a third member selected from a pre-qualified roster of individuals, established and administered by OATH, who has appropriate expertise and is unaffiliated with the City.

Individuals having a background and experience in government contracting, construction, engineering or related law are invited to apply.

However, OATH requests that otherwise qualified individuals currently employed by the City; individuals having a contract or dispute with the City; and individuals regularly representing persons, companies or organizations having disputes with the City not apply.

For more information go to: CDRB Notice 2015

For an application form go to: CDRB Panelist Application 2015.

Certain compensation paid to employees may be excluded in determine unemployment insurance benefits



Certain compensation paid to employees may be excluded in determine unemployment insurance benefits
2015 NY Slip Op 04552, Appellate Division, Third Department

A claimant [Worker] for unemployment insurance benefits challenged a decision of the Unemployment Insurance Appeals Board [Labor] holding that certain remuneration that claimant earned could not be used to establish entitlement to unemployment insurance benefits.

Worker, who had worked for multiple employers, filed for unemployment insurance benefits. During her base period, Worker’s employment included services performed as an election poll worker for the New York City Board of Elections.

Labor determined that Worker was entitled to unemployment insurance benefits, but that the remuneration received from the Board of Elections could not be considered in establishing her benefit rate because it did not constitute “covered employment.”

Worker had testified that she had responded to a card received in the mail from the Board of Elections asking if she was available to work on Election Day. She responded that she was available and subsequently received training. Worker was subsequently assigned to a polling place, where she worked as a poll worker or inspector on Election Day performing such duties as setting up and overseeing tables, signing in voters and instructing them on the use of the voting machines, keeping track of voting cards and printing a tally of votes at the end of the day, which were then reported to the Board of Elections.

The Appellate Division sustained the Board’s determination, noting that poll clerks, like election inspectors, are appointed, trained, compensated and perform duties as mandated by statute and overseen by the New York State Board of Elections.

Such individuals serving at polling places in New York City are compensated at a per diem rate established by the Mayor. Although the Board of Elections may have exercised some supervision over the poll workers and their training pursuant to the relevant, the Appellate Division said that “this is insufficient, by itself, to establish an employer-employee relationship, and the record is devoid of any proof that any such supervision exercised exceeded that required by law, or that additional duties or requirements were imposed beyond those provided by statute.”

The court also rejected Worker’s contention that she should have been deemed to be an employee “because taxes were withheld from her paycheck pursuant to a ruling by the Internal Revenue Service [IRS] that poll workers are considered employees for federal tax purposes” as such rulings by the IRS are not binding on the Board.

Finding that substantial evidence supported the Board's determination, the Appellate Division said that it would not be disturbed.

The decision is posted on the Internet at:

Adding parties to the litigation pursuant to the “relation-back" doctrine


Adding parties to the litigation pursuant to the “relation-back" doctrine
Crawford v City of New York, 2015 NY Slip Op 05267, Appellate Division, First Department

Barry E. Crawford initiated a lawsuit naming the City of New York and certain “John Does” as defendants. He later filed a motion to amend his complaint to substitute certain named New York City police officers in the place of the “John Does” initially named in his complaint relying on the "relation-back doctrine".*

Supreme Court granted Crawford’s motion; the Appellate Division reversed the lower court’s action “on the law.”

The Appellate Division ruled that Supreme Court “improvidently granted” Crawford’s motion to amend his complaint to add the individually named defendants in lieu of the "John Doe" defendants he had initially listed in his complaint after the statute of limitations expired under color of the relation-back doctrine. The court noted that Crawford did not deny that he was aware of the proper identity of these “John Doe” defendants four-and-one-half months prior to the expiration of the statute of limitations but waited another two years to move to amend his complaint after filing “a note of issue.”

The court explained that  there was no "mistake" by Crawford as to the proper identity of the parties within the meaning of the relation-back doctrine and that the “John Doe defendants" had every reason to believe that Crawford did not intend to sue them and that the matter had been laid to rest as far as these “John Doe” defendants were concerned.

* Essentially the application of the “relations back doctrine” permits something done “today” to be treated as if it were done at an “earlier” time, i.e., permitting a “later identified” individual to be sued in his or her own name rather than as an earlier named “John Doe” defendant.

The decision is posted on the Internet at:

Wednesday, July 01, 2015

Establishing a prima facie case of unlawful discrimination and, or, retaliation requires the complaints to set out the "protected activity" alleged to have been violated


Establishing a prima facie case of unlawful discrimination and, or, retaliation requires the complaints to set out the "protected activity" alleged to have been violated
2015 NY Slip Op 04937, Appellate Division, First Department

Supreme Court granted agency’s' motion for summary judgment dismissing the probationary employee’s [Probationer] complaint alleging gender discrimination in violation of the New York City Human Rights Law (Administrative Code of City of NY § 8-107[1][a]). The court ruled that Probationer failed to establish a prima facie case that she suffered an adverse employment action and that that action was taken under circumstances giving rise to an inference of discrimination. 

The Appellate Division affirmed the Supreme Court’s ruling.

The Appellate Division said that with the exception of her termination from her probationary employment, her complaints amounts to no more than "petty slights and trivial inconveniences" from which not harm resulted rather than her having suffered adverse employment action. The court explained that “While termination is indisputably an adverse action,” Probationer’s conclusory claim that her termination was motivated by a gender-related bias is insufficient to establish acts of unlawful discrimination as “stray derogatory remarks” without more, does not constitute evidence of unlawful discrimination.

Probationer also failed to raise an issue of fact whether the employer’s evidence of a legitimate, independent, and nondiscriminatory reason for her termination was pretextual and the real reason was gender discrimination. In the words of the Appellate Division, Probationer “does not dispute that she kept a departmental vehicle for nine consecutive days, during which time she used it only once for the authorized purpose of driving to a facility being audited, and that she inaccurately reported, in a daily log, the vehicle's use and overnight location.”

As to Probationer’s allegations of “retaliation,” the court said that Probationer failed to establish a prima facie case of retaliation.

The decision is posted on the Internet at:

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees




Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees
Source: Federal, State and Local Government Newsletter [IRS]

Webinar to be held on July 30, 2015; 2 p.m. (Eastern)

Topics to be addressed:

Determining when accumulated sick and vacation pay are subject to federal employment taxes

Determining when taxation can be deferred to a later year

Defining an elective employee contribution

Defining a non-elective employer contribution

Click here to Register for this event.

NOTE: You will use the same link to attend the event.

If you have any questions or comments, click her to send us an e-mail.

Another free Webinar:: Don’t forget to register for the webinar, Taxability of Fringe Benefits Part Three: Other Compensation and Payments to Employees on July 9, 2015; 2 p.m. (Eastern) Click here to Register


Expunging materials from an employee’s personnel file



Expunging materials from an employee’s personnel file
2015 NY Slip Op 05257, Appellate Division, First Department

In 2011 a New York City firefighter [Firefighter] and the New York City Fire Department [FDNY] entered into an agreement settling disciplinary charges filed against him.

Firefighter subsequently initiated an Article 78 action in Supreme Court seeking to compel FDNY “to expunge all materials placed in [Firefighter's] personnel file concerning a finding that he violated [FDNY’s] Equal Employment Opportunity policy” or, in the alternative, a court order compelling FDNY to grant Firefighter “a full and fair opportunity to challenge the allegations that he violated the policy.”

Supreme Court dismissed Firefighter’s petition, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that Firefighter had waived any rights to the relief he now sought, the expungement of the certain materials from his personnel file or an opportunity to be heard on the allegations, when he and FDNY entered into the agreement settling the disciplinary charges that had been filed against him. Further, said the Appellate Division, Firefighter’s argument that the waiver provisions set out in the settlement agreement were inapplicable was improperly raised for the first time in a reply brief submitted by Firefighter.

Although Firefighter cited D’Angelo v Coppetta, 19 NY3d 663, in support of his claims for relief, the Appellate Division noted that his reliance on D’Angelo was misplaced “as there was no waiver [issue] in that case.” In D’Angelo the Court of Appeals concluded that “that the letter issued to [D’Angelo and placed in his file] constitutes a formal reprimand under [New York City’s] Administrative Code §15-113.” The D'Angelo court then ruled that because the appointing authority denied D’Angelo his right to due process by placing the letter in his file without conducting a hearing, “the letter was properly expunged from D’Angelo’s permanent EEO file.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_05257.htm

The 2015 edition of The Discipline Book, a concise guide to disciplinary actions involving public officers and employees in New York State, is now available in two formats - as a paperback print edition and in an electronic [e-book] edition.For more information click on http://booklocker.com/books/5215.html


Tuesday, June 30, 2015

An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual


An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual
2015 NY Slip Op 04890, Appellate Division, Third Department

After a probationary teacher [Probationer] was terminated from her employment by the School District she commenced an action against a number of school administrators and board members [Defendants] alleging that Defendants had maliciously published defamatory statements about her and that her due process rights were violated by Defendants' failure to provide her with a name-clearing hearing.

Supreme Court granted Probationer's application to annul the School Board's determination denying her a name-clearing hearing and ordered such hearing to be provided.

Addressing Probationer’s due process claim, the Appellate Division said that Supreme Court erred in annulling the Board's determination and granting plaintiff a name-clearing hearing. The court explained that where "a government employee is dismissed for stigmatizing reasons that seriously imperil the opportunity to acquire future employment, the employee is entitled to an opportunity to refute the charge [or charges]" at a name-clearing hearing if the employer publicly disclosed the stigmatizing reasons or if there is a likelihood of future dissemination of such reasons.”  

Probationer had requested a name-clearing hearing “to specifically defend against and address the assertions” by school officials concerning her termination or her relations with students that had been made part of her personnel file. However, said the court, Probationer’s allegations as to the stigmatizing content of such material did not include any further allegations that Defendants and the Board had publicly disclosed those letters or their contents.

Further, said the Appellate Division, Probationer’s assertion that she was seeking relief in the form of removal of the statement of reasons letter from her personnel file was sufficient to apprise the Board of an allegation that there was a likelihood that such a letter or its content might disseminated. Members of the Board, however, said that, before deciding to deny Probationer’s request for a name-clearing hearing the Board determined that the statement of reasons set out in the letter had been and would remain confidential.

Thus, the court concluded, “given that [Probationer] did not allege that Defendants and the Board had publicly disseminated any stigmatizing materials and considering the evidence supporting the conclusion that [Probationer’s] allegation that the statement of reasons letter was in [Probationer's]  personnel file was factually incorrect, there is no basis to disturb the Board's denial of a name-clearing hearing.

Turning to Probationer's action alleging statements made by certain school officials had subjected her to "ostracism and rejection" in the community, the Appellate Division, after explaining the relevant law, held that “Given that defendants do not challenge the jury's determinations that [certain school officials] made the respective statements and that they were defamatory” and remanded the case for a new trial to determine damages, if any, “based upon proof of harms limited to those that can be linked by proximate cause to the two slanderous statements.”

The decision is posted on the Internet at:

NYS Employees’ Retirement System benefits are based on the member’s job title at the time of his or her retirement



NYS Employees’ Retirement System benefits are based on the member’s job title at the time of his or her retirement
2015 NY Slip Op 04555, Appellate Division, Third Department

In 2008, a New York State Correction Officer [Officer] retired from his position and began collecting service retirement benefits pursuant to Retirement and Social Security Law Article 14. Some four years later Officer requested that he be granted service retirement benefits pursuant to Retirement and Social Security Law Article 15, contending that “other correction officers … had been granted service retirement under Article 15.”

After an administrative hearing, the Hearing Officer concluded that Officer was not eligible for Article 15 service retirement benefits and the Comptroller adopted the Hearing Officer’s decision, in which he included a supplemental conclusion of law, and denied the Officer’s request for Article 15 retirement benefits. Officer appealed the Comptroller’s decision.

The Appellate Division confirmed the Comptroller’s determination, noting that “The Comptroller has exclusive authority to determine all applications for retirement benefits and the determination must be upheld if the interpretation of [the] controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence."

Retirement and Social Security Law §600 (a) (2) (a) provides that "[m]embers in the uniformed personnel in institutions under the jurisdiction of the [D]epartment of [C]orrections and [C]ommunity [S]upervision of New York [S]tate" are excluded from Retirement and Social Security Law Article 15 benefits.”

A representative from the New York State and Local Employees' Retirement System testified that retirement benefits are based upon an applicant's job title at the time of the individual’s retirement, and Officer admittedly retired from service from the position of correction officer.

While Officer argued that the denial of his request for Article 15 service retirement benefits was irrational based upon the fact that other correction officers were granted such benefits, the Appellate Division said the record reflects that those officers had “transferred to civilian job titles prior to retirement.”

The court’s conclusion: The Comptroller's determination that Officer was ineligible for Article 15 service retirement benefits is consistent with the applicable statutory provision and supported by substantial evidence and will not be disturbed.

The decision is posted on the Internet at:

Monday, June 29, 2015

Guidelines for the promulgating of rules and regulations by an administrative agency


Guidelines for the promulgating of rules and regulations by an administrative agency
Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., Court of Appeals, 2015 NY Slip Op 05514

In this case the Court of Appeals addresses the separation of powers doctrine in cases where a legislative body delegates to an administrative agency the power to “fill in the details” of the legislation by adopting rules and, or, regulations. 

The basic standard: the rules or regulations adopted by an administrative agency to implement a statute may not be inconsistent with the statutory language nor inconsistent with the underlying purposes of the legislation authorizing the promulgation of such rules or regulation.

The genesis of the case was the New York City Taxi & Limousine Commission’s [TLC] efforts to replace the Checker cab -- "the iconic taxi of yesteryear "– with “an iconic Taxi of Tomorrow” [ToT] by adopting certain rules setting new standards for such vehicles.

An association of medallion owners and an individual owner of a taxi fleet commenced a combined CPLR Article 78 proceeding and declaratory judgment action, seeking to invalidate the ToT rules and obtain a related declaration. The complaint alleged, among other things, that the TLC lacked authority to enact the ToT rules and violated the separation of powers doctrine in doing so.

Supreme Court held that the TLC had exceeded its authority under the City Charter and had violated the separation of powers by intruding in the City Council's domain. The court then declared that the ToT rules were invalid [42 Misc 3d 324]. The Appellate Division reversed the Supreme Court’s decision [see 121 AD3d 21].

Citing Boreali v Axelrod, 71 NY2d 1, the Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the issues of delegation of power and separation of powers overlap and are often considered together, noting that “if an [administrative] agency was not delegated the authority to enact certain rules, then it would usurp the authority of the legislative branch by enacting those rules,” explaining that “[t]he constitutional principle of separation of powers . . . requires that the [l]egislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies." Further, said the court, “as long as the legislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency's role.”

In Boreali, the Court of Appeals set out four "coalescing circumstances" that are non-mandatory, somewhat-intertwined factors for courts to consider when determining whether an administrative agency has crossed the hazy "line between administrative rule-making and legislative policy-making:"

1. Did the agency do more than "balanc[e] costs and benefits according to preexisting guidelines," but instead made "value judgments entail[ing] difficult and complex choices between broad policy goals" to resolve social problems?”

2. Did the agency merely fill in details of a broad policy or "wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance?"

3. Was the legislature unsuccessfully in reaching reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve?

4. Whether the agency must use its special expertise or competence in the field to develop the challenged rules or regulations.

In this case the Court of Appeals concluded that “[g]iven the broad statutory powers granted to the TLC to set policy as guided by enumerated safeguards and guidelines, the New York City Taxi & Limousine Commission did not exceed its authority or intrude on the City Council's domain in violation of the separation of powers doctrine by enacting the ToT rules.”

The decision is posted on the Internet at:

Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee



Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee
2015 NY Slip Op 04892, Appellate Division, Third Department

An internal investigation by the Division of State Police concerning missing evidence resulted in misconduct charges being filed against a State Trooper [Trooper] for allegedly failing to obey a lawful order to truthfully answer questions and knowingly making a false entry in official records. The Division of State Police Hearing Board found Trooper guilty of the two charges and recommended a penalty consisting of a 60-day suspension without pay, a one-year disciplinary probation period and a letter of censure.

Trooper, however, was shown a determination already signed by the Superintendent of State Police imposing the penalty of termination from his employment and was told that he had 10 minutes in which to resign or he would be terminated.

Trooper resigned but subsequently commenced a CPLR Article 78 proceeding seeking to be reinstated. Supreme Court transferred the matter to the Appellate Division for review of the question of  “substantial evidence” supporting the findings of the Hearing Board with respect to Trooper's being found guilty of the charges filed against him.

Initially the Appellate Division considered the question of the Trooper’s resignation, commenting that a resignation "would ordinarily be beyond [its] review,” but noting “exceptions exist where . . . the resignation was allegedly ineffective and involuntary,"* citing Melber v NYS Education Department, 71 AD3d 1216.

As it was undisputed that the Superintendent had signed a written decision terminating Trooper’s employment, which document was shown to him and Trooper was told that he had 10 minutes to accept an "option" of resigning, the Appellate Division ruled that “under the narrow circumstances” of this case Trooper was effectively terminated by a final agency action when he was handed the signed termination document.

Turning to the merits of the issue of “substantial evidence,” the court sustained the hearing panel’s determination as to Trooper’s guilt with respect to the charges filed against him, explaining that “credibility determinations are for the administrative factfinder when conflicting proof is presented.”

Although Trooper offered explanations “for some of the many discrepancies” in his testimony, the Appellate Division said that “this created a credibility question which was resolved against him” and substantial evidence supports the administrative determination.

As to the penalty imposed by the Superintendent, the court said “we have observed that ‘a State Trooper holds a position of great sensitivity and trust and a higher standard of fitness and character pertains to police officers than to ordinary civil servants," citing Bassett v Fenton, 68 AD3d at 1387-1388. The court said that the penalty imposed, termination, did not shock its sense of fairness in view of findings of Trooper’s “repeated false statements where the underlying matter implicated missing evidence, together with [Trooper’s] failure to accept responsibility even when confronted with contrary documentary proof.”

* Concerning the issue obtaining an "involuntary resignation," in Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals  pointed out that threatening to do what the appointing authority had a right to do -- in this instance filing disciplinary charges against the employee if the employee did not submit his resignation from his position -- did not constitute coercion so as to make the resignation involuntary.

The decision is posted on the Internet at:


The 2015 edition of The Discipline Book, a concise guide to disciplinary actions involving public officers and employees in New York State, is now available in two formats - as a paperback print edition and in an electronic [e-book] edition. For more information click on http://booklocker.com/books/5215.html

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 http://booklocker.com/books/5215.html

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 http://booklocker.com/books/5216.html

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 http://booklocker.com/books/7401.html

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 http://booklocker.com/books/3916.html

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