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Wednesday, May 25, 2016

Inability to satisfactorily perform the duties of the position due to an alleged disability


Inability to satisfactorily perform the duties of the position due to an alleged disability
OATH Index No. 858/16

The appointing authority alleged that a Computer Associate was unfit to perform his job after employer proved that he had difficulty keeping up with technological changes and was confrontational when interacting with co-workers and supervisors. Designated “a disability proceeding” it was submitted to the Office of Administrative Trials and Hearings pursuant to §72 of the Civil Service Law [CSL].

Finding that the employer had demonstrated that employee is currently unfit for the duties of his job,* Oath Administrative Law Judge Alessandra F. Zorgniotti recommended that the employee be placed on an Involuntary Leave of Absence, explaining that in order to place an employee on an involuntary medical leave pursuant to CSL §72, the employer must prove by a preponderance of the evidence that: (i) employee suffers from a disability, (ii) he of she is unable to competently perform his or her job duties, and (iii) his or her inability to perform is caused by a disability.

ALJ Zorgniotti also observed that: “The focus of the §72 proceeding is on the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and that “[p]ast performance is relevant only to the extent that it is probative of [the employee’s] present condition and future conduct.”

Noting that “[a]n essential part of fitness to work in any job assignment is an ability to work with and be supervised by others, without being disruptive or abusive”, Judge Zorgniotti said earlier OATH decisions indicated that a “finding of unfitness is supported where an employee denies the existence of a disability. or refuses to treat it, [and there is competent medical evidence to the contrary] thereby creating a greater risk of future recurrence of the disability.” 

* Judge Alessandra F. Zorgniotti noted that employee’s behavior continued to be disruptive even after supervisors had made efforts to simplify his job, action that could be deemed to an effort to provide a reasonable accommodation of the employee's disability.

The appointing authority adopted the ALJ’s findings and recommendation.    
The decision is posted on the Internet at:
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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html
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Tuesday, May 24, 2016

Conducting disciplinary hearings in absentia


Conducting disciplinary hearings in absentia
OATH Index No. 1046/16

Although rare, an employee upon whom disciplinary charges have been served may refuses to participate in the scheduled disciplinary hearing. If the appointing authority goes forward with the disciplinary hearing notwithstanding the employee’s failure to participate, has the employee been denied due process?

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the employer is required to introduce evidence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.*

OATH Administrative Law Judge John B. Spooner conducted a Civil Service Law §75 disciplinary hearing with the employee in absentia when the appointing authority appeared at the scheduled time and place but the employee declined to do so. Judge Spooner characterized the hearing as being in the “form of an inquest” and found that the appointing authority had [1] properly served the employee with the disciplinary charges and the notice of the hearing, and [2] had then produced records and the provided testimony by the employee’s supervisors supporting the charges of the employee’s alleged misconduct at the "inquest." The ALJ found that that the appointing authority had proven the employee was guilty of the charges and recommended that the employee be terminated from service. 

This is another example demonstrating that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Holding a disciplinary action in absentia, however, is a two-way street. Case law demonstrates that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. 

In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the disciplinary arbitration because it believed that Hall was not entitled to the disciplinary arbitration. The arbitrator ruled in favor of the employee and directed Environment Conservation to reinstate the employee to his position with back pay. 

Environmental Conservation [DEC] sought a court order vacating the arbitration award, contending that its termination of Hall was not subject to being challenged pursuant to the “contract disciplinary procedure” because the State Department of Civil Service had disqualified Hall for employment. DEC argued that as Hall’s appointment had been voided by the Department of Civil Service he could not claim any rights under Section 75 of the Civil Service Law or the collective bargaining agreement.**

A Supreme Court judge granted the union’s motion to confirm that portion of the award providing for the payment of certain back pay, holding that the disciplinary proceeding was not rendered moot by the Civil Service Department’s action but declined to confirm that part of the award that directed DEC reinstate Hall to his former position. The Appellate Division sustained the lower court’s ruling.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

** Pursuant to Civil Service Law Section 76.4, many Taylor Law collective bargaining agreements provide that a permanent employee in the classified service may challenge a disciplinary action in accordance with the terms set out in a "contract disciplinary procedure" that is operative in lieu of disciplinary action pursuant to a statutory disciplinary procedure [see Antinore v State, 40 NY2d 6].

Judge Spooner’s decision is posted on the Internet at:
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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html
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Monday, May 23, 2016

Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits


Determining the impact of performing light, limited or restricted duty on an application for disability retirement benefits
Koenig v DiNapoli, 2016 NY Slip Op 03942, Appellate Division, Third Department

2 NYCRR 364.3 addresses situations in which a member of the New York State and Local Police and Fire Retirement System [SLPFRS] has been assigned to light, limited or restricted duty applies for disability retirement benefits.

If the SLPFRS member has been assigned to light, limited or restricted duties for less than two years prior to the date application for disability retirement benefits was filed with the Comptroller and has not performed at least 100 hours of paid overtime in any 12-month period within such two-year period, SLPFRS is to “render its determination on the issue of permanent incapacity on the basis of the duties and job requirements of such previous full duty assignment.”

In contrast, if the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits SLPFRS  is to render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.

If, however, the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS is to base its determination on the issue of permanent incapacity “on the basis of such light, limited or restricted duty assignment.”

In July 2007, Daniel G. Koenig, a police officer, was injured when a bullet fragment from another police officer's gunshot ricocheted off a target at the firing range and struck petitioner in the leg. Koenig returned to work in December 2007 and placed on light duty assignment. In January 2009, Koenig filed an application for accidental disability retirement benefits.

The New York State and Local Police and Fire Retirement System [SLPFRS] assessed Koenig's disability application on whether he was incapacitated from the performance of the duties assigned to light duty work in accordance with 2 NYCRR 364.3(c).*

The Comptroller, however, accepted the findings and conclusions of the Hearing Officer, concluding that whether Koenig was permanently disabled from the performance of his duties should be evaluated on the basis of his light duty assignment and thereafter denied his application for accidental disability retirement benefits. The Comptroller, in effect, held that Koenig was not disabled from continuing to perform his light duty assignment.

Koenig filed an Article 78 petition challenging the Comptroller’s determination, contending that as the hearing had already been commenced under the full duty performance standard, the provisions of 2 NYCRR 364.3(c) should not control. He also claimed that he had not worked 100 hours or more of overtime.

The Appellate Division held that Koenig's contention that it was error, following the commencement of the hearing, to change the standard upon which to evaluate his disability retirement application from full duty to light duty performance, particularly given that he already had presented medical testimony based upon his full duty assignment, “was without merit.” The court said that evidence in the record established that Koenig continuously performed light duty assignment for a year following his return to work and also performed at least 100 hours of paid overtime during a 12-month period prior to filing his application for disability retirement benefits. Accordingly, said the court, 2 NYCRR 364.3(c) requires that the determination on the issue of permanent incapacity be evaluated on the basis of the light duty assignment.

Although Koenig sought to deduct mandatory overtime for medical evaluations or court appearances and contractual travel overtime from his total hours of overtime, the Appellate Division said that it found “nothing irrational, unreasonable, arbitrary or capricious in the Comptroller's interpretation that, under the circumstances herein, such overtime was reasonably anticipated by the regulation and should not be excluded from the total overtime hours reported.”**  Further, explained the court citing Bombace v Nitido, 117 AD3d 1375, “[t]he Comptroller is vested with . . . the duty to correct errors and cannot be estopped to create rights to retirement benefits to which there is no entitlement.”

Although Koenig was given the opportunities to recall or have his medical expert submit an affidavit as to his ability to perform light duty work and also was informed that appropriate time would be given in order for him to present any additional evidence or witnesses, he declined to do so.

The Appellate Division ruled that as Koenig presented no evidence regarding his inability to perform light duty work, the Comptroller's denial of his application for accidental disability retirement benefits “will not be disturbed.”

* 2 NYCRR 364.3(c) provides the member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed with the Comptroller has performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS “shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.”

** The Appellate Division observed that even under his own assessment, Koenig completed more than 90 hours of voluntary overtime during the relevant 12-month period.

The decision is posted on the Internet at:

______________

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html
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Saturday, May 21, 2016

Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016



Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016
Click on text highlighted in color to access the entire report

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

Metropolitan Transportation Authority -  Paratransit service “Access-A-Ride” accident claims

State Education Department (Center for Disability Services) - Compliance with the Reimbursable Cost Manual

State Education Department (Crossroads Center for Children) -  Compliance with the Reimbursable Cost Manual

State Education Department (Helping Hands School) - Compliance with the Reimbursable Cost Manual

Workers' Compensation Board – Examination of Workers’ Compensation daily payment requests by claimants and medical providers


Retailers agree to increased use of renewable energy

New York State Comptroller Thomas P. DiNapoli announced that Fortune 500 retailers Best Buy and Nordstrom have agreed to the New York State Common Retirement Fund’s request that they increase the use of renewable energy in their operations and supply chain.


State ends fiscal 2015-2016 with strong cash position due to “temporary resources”
 
The state collected $153.3 billion in State Fiscal Year (SFY) 2015-16, an increase of 2.8 percent from a year earlier, and ended the SFY $1.9 billion higher than initial projections, largely because of legal settlements and personal income tax collections, according to a report released by State Comptroller Thomas P. DiNapoli.


State contract and payments – April 2016
 
State Comptroller Thomas P. DiNapoli announced his office approved 990 contracts valued at $750 million and approved nearly 3.9 million payments worth more than $10.4 billion in April. His office also rejected 116 contracts and related transactions valued at $330 million and nearly 6,000 payments valued at more than $10.7 million due to fraud, waste or other improprieties.



Friday, May 20, 2016

An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is “affected by errors of law”


An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is affected by errors of law”
DeMaio v DiNapoli, 2016 NY Slip Op 02505, Appellate Division, Third Department

VHB, a correction officer, applied for performance of duty disability retirement benefits alleging that he was injured while escorting an inmate away from an altercation between the inmate and another correction officer. The application was initially denied by the Retirement System and VHB requested a hearing and redetermination.

Following the hearing, the Hearing Officer upheld the initial denial of VHB’s application for duty disability retirement, concluding that VHB had not meet his burden of proof of establishing each and every element necessary to sustain his application and that the initial determination was supported by substantial evidence. The Comptroller accepted the findings and conclusions of the Hearing Officer and VHB initiated a CPLR Article 78 proceeding.

The Appellate Division said that the Hearing Officer's determination, which was adopted by the Comptroller, was affected by errors of law.

The court explained that the Hearing Officer had improperly noted that the applicable standard of review was whether the initial determination was "supported by substantial evidence." Rather than a review of the initial determination, the Appellate Division said that such a hearing is conducted to allow the Comptroller to make a “redetermination” with “the same powers upon such hearing as upon the original application.”

In addition, said the court, “the Hearing Officer's determination misstated the applicable burden.” VHB was required to establish that he is incapacitated from performing his work-related duties “as the natural and proximate result of an injury, sustained in the performance . . . of his or her duties by, or as the natural and proximate result of any act of any inmate” [emphasis supplied by the court].

Further, the Appellate Division said it has repeatedly held that the relevant statute, Retirement and Social Security Law §607-c[a], requires that an applicant for duty disability retirement benefits demonstrate that his or her injuries were “caused by direct interaction with an inmate … and have specified that such injuries must be caused by some ‘affirmative act on the part of the inmate’ … there is no legal support for the Hearing Officer's enhancement of such burden by indicating that VHB was required to demonstrate "an intentional overt act of an inmate” (emphasis supplied by the court).

Accordingly, the court annulled the Comptroller’s determination and remanded the matter to the Comptroller for a new hearing.

The decision is posted on the Internet at:

Thursday, May 19, 2016

An application for retirement benefits must be timely delivered to and received by the retirement system to be operative


An application for retirement benefits must be timely delivered to and received by the retirement system to be operative
Biscardi v New York State and Local Retirement Sys., 2016 NY Slip Op 03238, Appellate Division, Third Department

Valerie J. Biscardi initially applied for disability retirement benefits pursuant to Retirement and Social Security Law Article 15 in February 2012. She, however, withdrew that application in March 2012 and in September 2012 filed an application for “service retirement.”

In May 2013, Biscardi’s attorney, contending that Biscardi had filed an application for disability retirement on September 19, 2012, inquired about the status of Biscardi’s application for “disability retirement.” The New York State and Local Retirement System [SLRS] advised him that there was no record that [Biscardi] had filed a subsequent application for "disability retirement benefits” on September 19, 2012.

Following an administrative hearing, the Hearing Officer determined that Biscardi had not established that she had filed a timely application for disability retirement benefits as required by Retirement and Social Security Law §605.* The Comptroller adopted the ALJ's determination and Biscardi appealed.

The Appellate Division affirmed the Comptroller’s decision.

An application for disability retirement benefits, said the court, “must be filed, as relevant here, ‘within three months from the last date the member was being paid on the payroll.’” Kathleen Nowak, Director of Disability Services for the Retirement System, testified that a search of the Retirement System's records found Biscardi's February 2012 disability retirement application and the March 2012 withdrawal letter, “but no subsequent disability retirement benefits application.”

Although Biscardi contended that her counsel “timely mailed a second application” to the Retirement System in September 2012, the Appellate Division said that "simply mailing an application does not constitute filing; rather, filing only occurs upon actual delivery to and receipt by [the Retirement System]."

Accordingly, said the court, “substantial evidence supports the Comptroller's determination that [Biscardi] failed to file a timely application and it will not be disturbed.”

* In Biscardi’s case, RSSL §605[b][2] required that she file her an application for disability retirement benefits "within three months from the last date the member was being paid on the payroll."

The decision is posted on the Internet at:
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Wednesday, May 18, 2016

Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties


Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties
Hall (Commissioner of Labor), 2016 NY Slip Op 03797, Appellate Division, Third Department

An employee of the Office of Persons with Developmental Disabilities [OPDD], Richard Hall, was arrested at his home for possession of marijuana. When OPDD learned of Hall’s arrest, it placed him on indefinite suspension. While on suspension, Hall applied for unemployment insurance benefits but was disqualified from receiving them based on a finding that he had engaged in disqualifying misconduct.

While on suspension from his position with OPDD, Hall pleaded guilty to criminal possession of marijuana in the fourth degree and, in settlement of the administrative disciplinary charges then pending against him, OPDD reinstated Hall to his position after he had been out of work for 15 months.

With respect to Hall's claim for unemployment insurance benefits, ultimately an Administrative Law Judge [ALJ] ruled, among other things, that Hall’s plea of guilty to the criminal charge amounted to misconduct disqualifying him from receiving benefits. The Unemployment Insurance Appeal Board sustained the ALJ's decision and Hall appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling.

Citing Matter of Sinker [Sweeney], 89 NY2d 485, the court explained that criminal convictions arising from conduct occurring outside the workplace have been found to constitute disqualifying misconduct where the conduct demonstrates a breach "of the standards of behavior to be reasonably expected by an employer in light of the nature of the employment involved."

Here, said the court, Hall’s job duties included dispensing medications to developmentally disabled individuals. Given the environment in which Hall worked, the Appellate Division said that it was reasonable for OPDD to expect that Hall would not illegally use or possess controlled substances. Clearly, said the court, Hall's criminal conduct posed a risk to his employer's mission and was detrimental to its interests.

Accordingly, the Appellate Division found that substantial evidence supports the Board's finding that Hall had engaged in disqualifying misconduct.

The decision is posted on the Internet at:

Tuesday, May 17, 2016

An 18-year delay by the State Division of Human Rights in issuing its determination characterized as being “jurisprudentially intolerable”


An 18-year delay by the State Division of Human Rights in issuing its determination characterized as being “jurisprudentially intolerable”
Matter of New York State Dept. of Correction and Community Supervision v New York State Div. of Human Rights, 137 AD3d 1512, Appellate Division, Third Department

In August 1995 Kenneth W. Howarth filed the first of his two complaints with respondent State Division of Human Rights [SDHR] alleging that the New York State Department of Corrections and Community Supervision [DCCS] had discriminated against him on the basis of a disability.*

In the words of the Appellate Division, “SDHR did not commence hearings on the 1995 and 1997 complaints until 2004. Although the testimony was neither long nor complicated, the hearings were not concluded until 2006. Finally, in 2013, an Administrative Law Judge [ALJ] determined, among other things, that DCCS had granted light-duty assignments to employees with disabilities incurred on the job, whereas employees with disabilities that were not work related—such as Howarth—were denied light-duty assignments. The ALJ also found that DCCS had discriminated against Howarth by placing him on involuntary leave under the Civil Service Law, resulting in the use of leave accruals and leave without pay.”

The ALJ's recommended award directed DCCS to pay to the trustee in bankruptcy** any lost wages and benefits that had not been restored to Howarth for times that he was out of work between July 1994 and August 1997, as well as compensatory damages of $20,000 for mental anguish. To the extent of the "unrestored lost wages and benefits" was not determined, the State Comptroller was ordered to "perform an accounting" to supply this information and determine these amounts. DCCS was also ordered to revise its policy regarding light-duty assignment and provide discrimination prevention training to all of its employees.

The Commissioner of Human Rights adopted the ALJ's recommendations in December 2013, with some modifications not relevant here, and found DCCS guilty of an unlawful discriminatory practice based on disability.

DCCS appealed the Commissioner's determination.

Addressing a procedural issue, the Appellate Division rejected DCSS’s argument that because a public employer has discretion when using Civil Service Law procedures regarding an employee, SDHR did not have jurisdiction over this matter. The court held that where it is alleged that such procedures are used in a discriminatory manner under the Human Rights Law, SDHR does have jurisdiction.

However, the court said it agreed with DCCS’s argument that the complaints should be dismissed because of SDHR's delay in processing them. The controlling statute, said the court, “sets forth time limits, measured in mere days and months, requiring SDHR to promptly consider and determine discrimination complaints.” 

Although the Appellate Division noted it was well aware that [1] the time limits in Executive Law §297 are "directory only," citing Corning Glass Works v Ovsanik, 84 NY2d 619, [a case involving an eight-year delay] and [2] that these time limits "exist for the benefit of complainants and should not be used to shelter those charged with violating the statute unless there is a showing of substantial actual prejudice," the court said that “the time that elapsed here from the initial complaint until the Commissioner issued her final order was more than 18 years” and by an agency “long known for its troublesome and excessive delays.”

In the words of the Appellate Division, “this delay of nearly a generation has plumbed a new depth of administrative inertia that has, in our view, reached the point of being ‘jurisprudentially intolerable.’”

The court noted [1] that Howarth will receive no financial benefit here, inasmuch as the order directs payment to the trustee in bankruptcy; [2] although not in the record, it was represented at oral argument that Howarth is now deceased; [3] SDHR has made no effort to offer any explanation or excuse for its apparently unexplainable and indefensible delay; [4] there is no allegation that DCCS contributed to the delay, and [5] the complaints filed by Howarth presented issues that were relatively simple and straightforward.

In the court’s view, the most difficult part of the matter would have been reconstructing the unrestored lost wages and benefits for the various times that Howarth was out of work. Rather than SDHR making this determination, the Commissioner ordered the State Comptroller to do so.***

As to the Commissioner directing DCCS to draft a new light-duty assignment policy and embark on a discrimination prevention training program for all of its employees, the Appellate Division observed that this directive is based on DCCS's policy in effect two decades ago when the complaints were filed. Its imposition now, without regard to DCCS’s currently evolved policy and subsequent training, lacks support in the record and creates potentially expensive, time-consuming and unnecessary action by DCCS.

Finding that there is substantial prejudice to DCCS occasioned by this "intolerable delay" and that such delay is "an abuse of SDHR's discretion," the Appellate Division annulled SDHR’s determination.

* The second of these complaints filed with SDHR alleged that DCCS had discriminated against Howarth yet again because of disability and it had retaliated against him for having filed his first complaint.

** As a result of being out of work, as well as other factors, Howarth filed for bankruptcy in 1996.

*** Although the Commissioner cited no statutory or other authority giving her the power to order the Comptroller to conduct yet another administrative inquiry to gather the necessary information, the Appellate Division said it need not decide this issue as it was annulling the Commissioner's determination on other grounds.

The decision is posted on the Internet at:

Monday, May 16, 2016

A court’s review of a PERB's decision is limited to determining if it was affected by an error of law or it was arbitrary and capricious or an abuse of discretion


A court’s review of a PERB's decision is limited to determining if it was affected by an error of law or it was arbitrary and capricious or an abuse of discretion
Kent v Lefkowitz, 2016 NY Slip Op 03650, Court of Appeals

In response to New York State Racing and Wagering Board* (the Racing Board) reducing per diem wages for its seasonal employees* by 25%, the Public Employees Federation, AFL-CIO [PEF], the certified collective bargaining representative for the Professional, Scientific and Technical Services Unit of New York State employees, which unit includes seasonal track personnel employed by the Racing Board** filed an improper practice charge, alleging that the reduction in wages violated Civil Service Law §209-a(1)(d) with the Public Employment Relations Board [PERB]. PERB dismissed the improper practice charge and PEF appealed contending that PERB’s decisions “was affected by an error of law or was arbitrary and capricious or an abuse of discretion.”

The Appellate Division reversed, with two Justices dissenting, vacated PERB’s determination [119 AD3d 1208]. The majority held that "PERB's determination . . . was arbitrary and capricious" because it "d[id] not believe" that the Side Letter Agreement demonstrated that the Racing Board negotiated the unilateral 25% reduction in wages. The dissent opined that "when PERB's interpretation of the [S]ide [L]etter [A]greement is afforded the deference it is due, its determination that the [Racing] Board met its burden of establishing that it satisfied its duty to negotiate with [PEF] is rational and not arbitrary and capricious."

The Court of Appeals, [Judge Fahey dissenting in an opinion; Judge Stein taking no part], reversed the Appellate Division’s ruling, thus sustained PERB’s determination.

The genesis of this dispute was a collective bargaining agreement negotiated by PEF and the New York State Governor's Office of Employee Relations [GOER] that was operative from 1995 to 1999. The CBA included a "Memorandum of Interpretation," or side-letter agreement that addressed terms and conditions of the employment of seasonal employees and provided for Compensation wherein Paragraph A provided for lump-sum payments and salary increases for eligible employees; Paragraph B set out the specific fiscal years covered by the CBA; [3] Paragraph C addressed the effect on a seasonal employee's rate of compensation "[i]f during the term of th[e] Agreement the rate of compensation of any employee in a seasonal position [wa]s increased at the discretion of the Director of the Budget for the purpose of making such rate equal to the [f]ederal minimum wage level;" and Paragraph D of the Side Letter Agreement [SLA] expressly made Paragraphs A through C applicable to seasonal employees paid on a per diem basis.

Approximately two months after the Side Letter Agreement was executed, the Racing Board's chair announced a 25% reduction in the per diem pay of seasonal track employees, effective with the January 1996 appointments. In response, PEF filed an improper practice charge with PERB, alleging that this reduction violated the Racing Board's duty to negotiate in good faith under Civil Service Law § 209-a (1) (d). The Racing Board answered, raising the affirmative defense of waiver.

After administrative hearings, PERB's Assistant Director rejected the Board’s waiver defense and found a violation of Civil Service Law §209-a(1)(d). The Board filed exceptions to Assistant Director’s decision as did PEF with respect to the relief awarded by the Assistant Director. PERB dismissed the improper practice charge finding that the SLA was "a negotiated limitation upon the State Budget Director's discretion with respect to unilateral adjustments in the rates of compensation for seasonal positions in the unit" and, therefore, the duty to negotiate was satisfied.

Supreme Court dismissed the PEF’s petition challenging PERB's decision. The Appellate Division, however, reversed the Supreme Court’s decision, with two Justices dissenting. The majority held that "PERB's determination . . . was arbitrary and capricious" because it ‘d[id] not believe’ that the Side Letter Agreement demonstrated that the Racing Board negotiated the unilateral 25% reduction in wages.” The dissent, in contrast, opined that "when PERB's interpretation of the [S]ide [L]etter [A]greement is afforded the deference it is due, its determination that the [Racing] Board met its burden of establishing that it satisfied its duty to negotiate with [PEF] is rational and not arbitrary and capricious.

The Court of Appeals ruled that the order of the Appellate Division should be reversed and the judgment of Supreme Court reinstated. The court explained that its scope of review in this context is limited to whether PERB's decision "was affected by an error of law or was arbitrary and capricious or an abuse of discretion." Further, said the court, it has recognized that "PERB is accorded deference in matters falling within its area of expertise," which includes "the resolution of improper practice charges."

The Court of Appeals said that the SLA “was comprehensive in addressing all conditions of employment for seasonal employees for 1996 to 1999,” including specific pay increases for specific years, but not for the fiscal year in which the 25% reduction took effect. Further, the SLA “did not rule out pay reductions and did not impose any conditions precedent to pay reductions.”

Accordingly, said the court, PERB's conclusion that it was "reasonably clear" that both sides intended the SLA "to act as a negotiated limitation upon the State Budget Director's discretion" as to compensation for seasonal employees was not arbitrary and capricious. 

Reading the Side Letter Agreement as a whole, the Court of Appeals concluded that the language of the SLA "implicitly demonstrate[s] that the parties had reached accord" with respect to any limitations on the discretionary authority of the Budget Director to change the per diem compensation of seasonal employees, noting that “[e]ach of the compensation sections of the Side Letter Agreement demonstrates negotiation with respect to the statutorily authorized discretion."

* Effective February 1, 2013, the Racing Board merged into the New York State Gaming Commission, a newly created entity.
 
** Seasonal track employees are in the exempt class [Civil Service Law §41] and are appointed each year by the chair of the Racing Board to work during a specific season from opening date until closing date.

The decision is posted on the Internet at:

Sunday, May 15, 2016

Selected reports issued by the Office of the State Comptroller during the week ending May 14, 2016


Selected reports issued by the Office of the State Comptroller during the week ending May 14, 2016
Click on text highlighted in color to access the entire report

State Comptroller DiNapoli calls for reforms of certain State fiscal practices
New York State Comptroller Thomas P. DiNapoli called for changes to the state’s fiscal practices, including limiting discretionary lump sum spending, restricting "backdoor spending" by public authorities and imposing a constitutional limit on state debt, among other reforms, to bring increased transparency and accountability to state finances.


Construction delays in public housing
Problems with the administration of the public housing modernization program run by New York State Homes and Community Renewal have led to years-long delays in projects outside New York City, according to an audit released by State Comptroller Thomas P. DiNapoli.


Fast food companies agree to stronger conduct assessments of human rights risks related to labor standards in their operations and supply chains
New York State Comptroller Thomas P. DiNapoli announced that Fortune 500 fast food companies Wendy’s and YUM! Brands, the parent company of Kentucky Fried Chicken, Pizza Hut and Taco Bell, have agreed to conduct assessments of human rights risks related to labor standards in their operations and supply chains. The companies also agreed to publish these risk assessments on their websites later this year.


Municipal Audits released
New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the following municipalities:

Town of East Greenbush, Justice Court Operations

Town of Elizabethtown, Supervisor’s Records and Reports

Lockport Housing Authority, Executive Director’s Compensation

City of Long Beach, Review of the City’s budget

Putnam County, Misappropriation of Cash Receipts

Village of South Glens Falls, Financial condition and budgeting practices


Saturday, May 14, 2016

Appellate Division holds that deficiencies in the performance review process of a probationary teacher were not merely technical but undermined the integrity and fairness of the process


Appellate Division holds that deficiencies in the performance review process of a probationary teacher were not merely technical but undermined the integrity and fairness of the process
Taylor v City of New York, 2016 NY Slip Op 03454, Appellate Division, First Department

In lieu of summarizing the Appellate Division’s ruling in Taylor v City of New York, the decision is reproduced below in its entirety as an illustration of what the Appellate Division characterized as a demonstration of the “deficiencies in the performance review process resulting in petitioner's unsatisfactory rating (U-Rating) for the 2012-2013 school year that were not merely technical but undermined the integrity and fairness of the process.”


Taylor v City of New York
2016 NY Slip Op 03454
Decided on May 3, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on May 3, 2016
Mazzarelli, J.P., Andrias, Saxe, Moskowitz, Kahn, JJ.

718 100383/14
In re Leslie Taylor, Petitioner-Appellant,

v

City of
New York, et al., Respondents-Respondents.
Glass Krakower LLP, New York (Bryan D. Glass of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for respondents.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered September 25, 2014, insofar as appealed from as limited by the briefs, denying the petition to annul a determination of respondents, dated December 6, 2013, which denied petitioner's appeal of an unsatisfactory performance rating (U-Rating) for the 2012-2013 school year, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted, and the matter remanded to respondents for further proceedings.

Petitioner was hired as a probationary special education teacher. During the first two years of her three-year probationary period, she had an exemplary record, receiving satisfactory ratings and several letters of commendation. In her third year, on November 20, 2012, petitioner participated in an annual review meeting concerning a special education student in her fourth-grade class (the Annual Review). At the meeting, petitioner opposed the position taken by the school's special education coordinator and sided with the student's mother, who had asked that her son be removed from the "Alternate Assessment" program favored by Principal Jennifer Jones-Rogers.

The very next day, November 21, 2012, the principal conducted the first formal observation of petitioner for the 2012-2013 school year. On November 26, 2012, after a post-observation conference, the principal issued an observation report that found petitioner's math lesson unsatisfactory because: (1) "[she] did not model for children what [she] expected them to do"; (2) "[her] [l]esson did not address the problem [she] presented for students to solve"; (3) "[she] did not incorporate rigor in [her] lesson effectively"; and (4) "[she] did not include accountable talk structures in [her] lesson."

The report advised petitioner that a "log of support" would be put in place for her "to grow [her] practice and move toward attaining satisfactory performance." Petitioner submitted a written rebuttal in which she stated that she had conducted the lesson in the exact manner that the principal had outlined in their pre-observation conference and that the post-observation conference focused more on the principal's dissatisfaction with the position petitioner had taken at the Annual Review than on the math lesson in question.

On February 21, 2013, Assistant Principal (AP) Scott Wolfson conducted a formal observation of another of petitioner's math lessons. The post-observation conference was not held until April 16, 2013, at which time petitioner was given an observation report that rated the lesson unsatisfactory because: (1) "[w]hile the children within your group were able to solve the problems that [she] presented to them, it was evident that their solutions indicated algorithmic solution strategies rather than a deeper conceptual understanding of the problems"; (2) "[she] failed to provide opportunities for [her] students to discuss their mathematical thinking with each other"; and (3) the questions that she posed "[did] not serve to develop children's conceptual understanding of mathematics, which should be our goal." The report advised petitioner that "[a]s a result of this lesson, we will continue to implement a log of assistance in order to support you in our mutual goal of attaining a satisfactory rating."

Petitioner submitted a rebuttal stating that "[t]he fact that my [special education] students were able to solve the word problems with algorithmic solution was a huge accomplishment for my students who entered the fourth grade far below grade level" and that "Mr. Wolfson wanted to concentrate on the fact [that] the students struggled with conceptualizing their understanding of mathematics, which was not the goal for my lesson plan for that day." Petitioner added that "Mr. Wolfson and I also planned my lesson together two days before and [he] never mentioned that he wanted to observe how the students conceptualize math."

Meanwhile, on April 10, 2013, petitioner received a "Summons to Disciplinary Conference" from Principal Jones-Rogers. On April 18, 2013, after a conference was held, the principal and the AP issued a letter advising petitioner that: (1) "[she] failed to suggest appropriate modifications to [her] students' IEP's to support their academic needs"; (2) "[i]n the case of [E.G.], [she] failed to provide [E's] parents with a promotion in doubt letter"; and (3) "[she was] negligent in [her] attention to the records and reports required of [her] in [her] capacity as special education teacher."

On April 22, 2013, petitioner received an overall U-Rating for the 2012-2013 school year, even though her performance was rated satisfactory in 14 of the 22 categories considered. The rating form contained a signature by the principal, dated January 19, 2013, recommending "[petitioner's] discontinuance of probationary service." It also contained a signature by the district superintendent, dated January 22, 2013, adopting the recommendation. On April 24, 2013, petitioner received a revised U-Rating that changed the date of the principal's and district superintendent's signatures to April 22, 2013.

The Department of Education discontinued petitioner's probationary employment as of May 29, 2013, a month before the school year ended. In June 2013, petitioner sought to review her personnel file and discovered that all of her satisfactory written formal and informal observations from the 2010-11 and 2011-12 school years were missing. On October 8, 2013, Principal Jones-Rogers resigned.[FN1] 

An administrative appeal hearing was conducted on December 3, 2013. Principal Jones-Rogers did not appear. At the hearing, petitioner contended that the principal had engineered the two unsatisfactory lesson observations, the disciplinary letter, and the unsatisfactory 2012-2013 annual rating, which led to her termination, to retaliate against her because she opposed the principal's special education policies and had sided with the mother at the Annual Review. As to the disciplinary letter, petitioner maintained that she did not have the authority to unilaterally make the changes to the Individualized Education Plans (IEP[s]) that the principal and the AP faulted her for not making. She also complained that it was not until April that the principal and the AP sent a memo telling her that she had to revise E.G.'s IEP, by which time the deadline to add modified promotional criteria had passed.

Stephanie Flummery, the chapter leader at the school, testified on petitioner's behalf. Ms. Flummery stated that one of her duties was to discuss, with the administration, teachers who faced unsatisfactory reviews and that before November 2012 petitioner had never been criticized. In November 2012, petitioner contacted Ms. Flummery because the principal had told her that she needed to rethink her profession after petitioner had not agreed to force a parent to maintain her son on an alternate assessment. Before that, petitioner had always been "a shiny star" [sic] to the principal. After the second observation by the AP, petitioner told her that the principal had fired her. A meeting was then held at which the principal promised that she would "leave [petitioner] alone" and would not discontinue her. However, the principal went back on her word.

After the hearing, by letter dated December 6, 2013, the district superintendent affirmed the discontinuance of petitioner's probationary service.

The record demonstrates deficiencies in the performance review process resulting in petitioner's unsatisfactory rating (U-Rating) for the 2012-2013 school year that were not merely technical but undermined the integrity and fairness of the process (see Matter of Gumbs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 125 AD3d 484 [1st Dept 2015]; Matter of Brown v City of New York, 111 AD3d 426 [1st Dept 2013]). Petitioner was not given an adequate opportunity to improve her performance, and the observation reports did not suffice to alert her that her year-end rating was at risk.

Petitioner's account of the post-observation conference held on November 26, 2012, where the principal allegedly focused on the Annual Review, rather than perceived flaws in petitioner's lesson, was not refuted at the hearing and, when viewed alongside the other evidence presented, raises a factual issue as to whether the principal engineered the U-Rating to force petitioner from her job for refusing to go along with her policy of steering children into special education classes despite parental wishes to the contrary. While the November 26, 2012 observation report stated an intent to assist petitioner in obtaining a satisfactory performance level, certain of the meetings reflected in the support log were not specific to petitioner. A meeting with the math consultant did not address how to develop plans for children with special needs, and the special education coaching sessions listed were optional. At the hearing, AP Wilson acknowledged that petitioner had asked him to model a mathematics lesson and that he did not do it. Further, when asked if he had discussed the comments made by the principal at the November 26 post-observation conference at his December 3, 2012 meeting with petitioner, the AP said he did not recall discussing them.

Although the second observed lesson took place on February 21, 2013, the post-observation conference did not take place until April 16, 2013, almost two months later and only days before petitioner received the unsatisfactory U-Rating. There is nothing in the record that would demonstrate that petitioner received any professional development support after February 28, 2013, the last entry in the support log. The long delay in providing feedback, together with the absence of any remediation after February 28, 2013 and the rapid sequence of events in April 2013, establishes that petitioner was not given an opportunity to remedy the alleged defects and implement the multiple recommendations (see Matter of Brown, 111 AD3d at 427).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 3, 2016
CLERK
Footnotes

Footnote 1: Two months before her resignation, parents, teachers, students and a state senator had held a rally to protest Principal Jones-Rogers' policies, which allegedly included retaliating against teachers who disagreed with her and cramming students into special education classes without parental consent.

The decision is posted on the Internet at:

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

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

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