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Friday, April 30, 2010

Retroactive application of a law, rule or regulation

Retroactive application of a law, rule or regulation
St.Clair Nation v City of New York, Court of Appeals, 2010 NY Slip Op 03471, Decided on April 29, 2010

May the provisions of a law, rule or regulation be applied to the individual with respect to his or her conduct prior to the effective date of the law, rule or regulation? This was the significant issue in Leon St.Clair Nation v City of New York.

St. Clair Nation, an engineer licensed by the New York State Department of Education, was alleged to have placed his seal on digitally altered photographs submitted to the New York City Department of Buildings [DOB] in connection with a pavement plan for a building under construction in Brooklyn. It was further alleged that he subsequently attested the accuracy of a falsified photograph in support of another pavement plan for a separate Brooklyn property and, in the following year, he offered a false application to DOB for alterations to a nonexistent second floor of a third Brooklyn parcel.

DOB initiated an administrative proceeding before the New York City Office of Administrative Trials and Hearings seeking to revoke St. Clair Nation’s professional certification privileges. The OATH Administrative Law Judge found, by a preponderance of the evidence, that St. Clair Nation had “negligently certified the accuracy of the altered photographs and submitted a deceptive application.” The ALJ recommended St. Clair Nation’s professional certification privileges be rescinded.

Accepting the ALJ’s recommendation, and relying on a recently enacted amendment to the City’s Administrative Code — Administrative Code § 26-124 (c)* — the Commissioner also precluded St. Clair Nation from filing any application or document with DOB for two years, effective January 15, 2008, to be followed by a three-year probationary period.

St. Clair Nation filed an Article 78 proceeding challenging the Commissioner's determination. He argued that [1] the determination was not supported by substantial evidence; [2] the revocation of his certification privileges was excessive; and [3] that Administrative Code §26-124(c) was inapplicable in this instance because it was enacted in 2007, after he engaged in the acts with which he had been charged.

The Appellate Division held although substantial evidence supported the Commissioner's determination as to the falsification of documents, the provisions Administrative Code §26-124(c) relied upon by the Commissioner could not be applied retroactively by the Commissioner to bar St. Clair Nation from submitting any documents to DOB for two years, together with the three-year probationary period.

DOB appealed and the Court of Appeal held that Administrative Code §26-124(c) could be applied retroactively under the circumstances. The court ruled that the Commissioner's refusal to accept documents from St. Clair Nation for a future period of time did not amount to an improper retroactive application of the provision.

Although, the Court of Appeals, citing Forti v New York State Ethics Commn., 75 NY2d 596, said that “It is well settled under New York law that retroactive operation of legislation ‘is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it’ … it is also true that ‘[a] statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events.’”

Matter of Miller v DeBuono, 90 NY2d 783, was a case involving a nurse aide found to have physically abused a nursing home patient in 1991 and was thereafter terminated. The Commissioner of Health barred her from future employment in a nursing home on the authority of 10 NYCRR 415.4 (b) (1) (ii) (b), a provision that had been enacted after the underlying incident of abuse took place. The Court of Appeals concluded that in Miller’s case the regulation had not been inappropriately applied retroactively.

The court’s rationale in Miller: "where the requirements for engaging in specified professional activity are changed to govern future professional eligibility, a statute does not operate retroactively in any true sense even though its application may be triggered by an event which occurred prior to its effective date."

Further, the court noted that provision relied upon in Miller was “a safety measure designed to regulate future employment by precluding nursing homes from hiring nurse aides who had been previously found guilty of abuse.” Thus, the court concluded, the Commissioner of Health's application of the regulation was not improper merely because the nurse aide's disqualifying conduct occurred before its promulgation.

Rejecting St. Clair Nation’s argument that Administrative Code §26-124(c), as applied to him, constitutes an ex post facto law** in violation of the Federal Constitution, the Court of Appeals held that “The Commissioner therefore properly relied on Administrative Code §26-124 (c) in determining that DOB would preclude petitioner from submitting any documents for two years, with a three-year probationary period thereafter.”

Further, said the court, based on St. Clair Nation repeated certification and submission of false materials, “we further conclude that the Commissioner's determination does not shock the conscience.”

* New York City Administrative Code §26-124(c) provides, in relevant part: "In addition to any other penalty provided by law, the commissioner may refuse to accept any application or other document . . . that bears the signature of any person who has been found, after a hearing at the office of administrative trials and hearings pursuant to the department's rules, . . . to have knowingly or negligently falsified or allowed to be falsified any certificate, form, signed statement, application, [or] report." The Court of Appeals noted that the provision was adopted by the Legislature in 2007, this provision was designed to "promote public safety and prevent the waste of taxpayer dollars by eliminating the repeated filing of false information relating to the construction and repair of buildings in New York City" (Senate Memorandum in Support, Bill Jacket, L 2007, Chapter 542, at 8).”

** Ex post facto typically refers to enacting a criminal law that criminalizes conduct that was lawful when it was originally performed. In the Matter of Keith T. Bush v New York State Board of Examiners of Sex Offenders, 2010 NY Slip Op 03441, decided on April 27, 2010, the Appellate Division said that requiring Bush to register under the Sex Offender Registration Act (Correction Law Article 6-C) does not violate the ex post facto clause of the federal constitution (US Constitution Article I, §10[1]), the due process clauses of the state or federal constitutions (NY Constitution, Article I, § 6; US Constitution, Amendment XIV), or Bush's right to equal protection of the law.

The St. Clair Nation decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03471.htm

Thursday, April 29, 2010

Retirement System is required by law to correct errors in retirement benefit payments and seek repayment of excess benefits already paid to a retiree

Retirement System is required by law to correct errors in retirement benefit payments and seek repayment of excess benefits already paid to a retiree
Matter of Palandra v New York State Teachers' Retirement Sys., 2010 NY Slip Op 50735(U), Decided on March 17, 2010, Supreme Court Albany County, Judge George B. Ceresia, Jr.

Maria Palandra, a retired Superintendent of the Elmont Union Free School District, sued the NYS Teachers’ Retirement System challenging the System’s determination that a portion of salary increases Palandra received prior to her retirement (and other compensation items) should not be included in her three-year final average salary for purposes of determining her retirement allowance.

Palandra was appointed Superintendent of Schools in March 1998 and entered into her first contract with the School District as Superintendent. Two years later Palandra executed a second contract with the School District, extending her employment through the 2002-2003 school year. Well before expiration of the “second contract,” the parties renegotiated the terms of Palandra's employment and entered into a “third contract.”

This contract continued a provision set out in an earlier contract permitting Palandra to elect to receive a one-time "career increment" of 27.5%; and continued the provision for payment of accumulated unused sick days and vacation days upon retirement.

Prior to the expiration of the third contract, on February 10, 2004, Palandra and the School District entered into a fourth contract that “retroactively established Palandra's salary for the 2002-2003 school year at $224,668.00, with salary increases in 2003-2004 and 2004-2005 in accordance with the CPI, capped at 5%."

In September 2004 Palandra requested that the Retirement System provide her with an estimate of her annual retirement benefits. The Retirement System, computed her estimated retirement benefits was $222,178.00, based upon the foregoing contractual increases in compensation. In reliance upon this estimate Palandra decided to retire after the 2004-2005 school year and commenced receiving a retirement allowance of $7,350.00 per month.

In November 2008 the Retirement System told Palandra that a significant portion of the salary increases which she had received since the August 29, 2000 contract had been disallowed for purposes of computing her final annual salary. Palandra sent the System a detailed explanation with regard to why she believed the reductions in her three-year final average salary were unfair. Her letter was considered by the Retirement System in making its final determination, which affirmed the preliminary determination.

Judge Ceresia cited §443 (a) of the New York Retirement and Social Security Law "Final average salary," that, as relevant here, states:

"The salary base used for the computation of benefits upon retirement, hereinafter called in this article final average salary, applicable to all members of the retirement systems who are subject to the provisions of this article, shall be the average salary earned by such a member during any three consecutive years which provide the highest average salary, exclusive of any form of termination pay (which shall include any compensation in anticipation of retirement), or any lump sum payment for deferred compensation, sick leave, or accumulated vacation credit, or any other payment for time not worked (other than compensation received while on sick leave or authorized leave of absence); provided, however, if the salary or wages earned during any year included in the period used to determine final average salary exceeds that of the average of the previous two years by more than twenty percentum, the amount in excess of twenty percentum shall be excluded from the computation of final average salary. . ."*

The court said that the Retirement System “is statutorily required to correct errors in retirement benefit payments and seek repayment of excess benefits already paid in order to ensure that the integrity of the public retirement system is maintained," citing Matter of Blais v New York State Retirement Teachers' System, 68 AD3d 1266.

Further, said Judge Ceresia, “It has been repeatedly held, in construing a similar statute, that compensation items such as termination pay, bonuses, lump sum increments, longevity payments, or lump sum cash payments for sick leave and annual leave, may not be included in final average salary in calculating an employees' retirement benefit.”

In response to Palandra argument in the nature of estoppel in that the System’s final determination was made nearly three and one half years after her retirement and that had she known that her retirement allowance would be drastically reduced from System's original estimate, she would have delayed retirement, Judge Ceresia pointed out that “[i]t is well settled that estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties."

Further, said the court, erroneous information given by a government employee does not ordinarily constitute an exception to the rule.

Finding that the Retirement System's determination was not made in violation of lawful procedure, was not affected by an error of law, and was not irrational, arbitrary and capricious, or an abuse of discretion, Judge Ceresia dismissed Palandra’s petition.

* 21 NYCRR 5003.1(a) of the Rules of the New York State Retirement system, entitled]"Three-year final average salary for members who join system prior to July 1, 1976" provides as follows: "(a) A three-year final average salary is defined as the highest average annual regular salary earned by a member over a period covering three consecutive years of New York State service credit. Regular salary earned shall exclude termination pay and payments which are not part of the salary base and/or are not paid over a period of years; for example, bonuses and one-time-only increments. It shall also exclude any earnings in excess of 120 percent of the earnings for the preceding year of service credit (the preceding two years of service credit for those members who joined on and after July 1, 1973 and before July 1, 1976), after such earnings have been adjusted to exclude the termination pay."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_50735.htm

Civil Service Law §72 disability leave hearings conducted by the NYC Office of Administrative Trials and Hearings

Civil Service Law §72 disability leave hearings conducted by the NYC Office of Administrative Trials and Hearings *
NYC Housing Authority v Anonymous, OATH Index # 1055/10
NYC Human Resources Administration v Anonymous, OATH Index #1613/10

In the NYC Housing Authority Civil Service Law §72 disability leave proceeding, an OATH Administrative Law Judge found that the Authority had established that Anonymous, an analyst with the Authority, was unfit to perform the duties of the position due to a mental disability.

Housing, said the ALJ, presented evidence demonstrating that the analyst's thought processes were disordered and dysfunctional,and that Anonymous exhibited various signs of psychosis, including irrational fears of co-workers and equally irrational fears of the individual’s own skills and achievements.

While the analyst contended that she was seeking treatment for the condition by consulting with a chiropractor, ALJ John Spooner found that there was no support to conclude that such alternative treatment was intended to or would improve her mental functions.

This decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1055.pdf

In another disability proceeding referred to OATH by the NYC Human Resources Administration pursuant to §72 of the Civil Service Law, OATH Administrative Law Judge recommended that the employee be placed on an involuntary leave of absence after finding that the individual suffered from paranoia rendering her unable to perform her job.

ALJ Lewis noted that if the respondent was to seek psychiatric treatment and improve, she may then be able to return to work within the year.

This decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1613.pdf


* Section 72 applies in the event an employee suffers an "ordinary disability," i.e., a disability unrelated to any occupational injury or disease. In contrast, Civil Service Law Section 71 -- Workers' Compensation Leave -- provides for leaves of absences required as a result of an occupational injury or disease as defined in the Workers' Compensation Law.

An employee placed on a Section 72.5 involuntary leave of absence is entitled to use all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit in order to remain on the payroll. If the employee declines to use his or her accumulated leave credits in order to remain on the payroll, or having elected to remain on the payroll, exhausts his or her accumulated leave credits, he or she is placed in leave without pay status.

Administrative due process requires the employee be given a hearing before his or her GML §207-a benefits can be discontinued

Administrative due process requires the employee be given a hearing before his or her GML §207-a benefits can be discontinued
Zervos v City of Binghamton, 2010 NY Slip Op 30840(U), April 13, 2010, Supreme Court, Broome County, Judge Ferris D. Lebous [Not selected for publications in the Official Reports]

Judge Lebous said the events leading to Spero Zervos filing his instant petition are not disputed.

Essentially, Zervos was injured in the course of his duties as a firefighter with the City of Binghamton. On March 12, 2007, the City granted Zervos' initial application for GML §207-a benefits. Initially Zervos received through December 31, 2007 but was later approved for through January 1, 2008.

On March 25, 2008, unbeknownst to petitioner, his physician, Thomas R. Van Gorder, informed the workers compensation carrier that petitioner was totally disabled through January 30, 2008. On May 9, 2008, based upon this information, the City directed Zervos to report for light duty on May 12, 2008.

On June 18, 2008, the City approved Zervos for GML § 207-a benefits from March 26, 2007 through December 31, 2007. On July 8, 2008, the City issued an amended award approving Zervos for GML § 207-a benefits from March 14, 2007 through December 31, 2007.

On July 14, 2008, the City further approved Zervos for GML § 207-a benefits from January 1, 2008 through January 30, 2008 but on September 5, 2008, Zervos requested a hearing with respect to the City's July 14, 2008 determination. All parties agree that Zervos’ GML § 207-a benefits resumed as of September 16, 2008.

In February 2009, a hearing was held and the hearing officer issued a decision concluding that the January 30, 2008 termination date for Zervos’ GML § 207-a benefits was proper.

On December 8, 2009, Judge Lebous issued a Decision upholding Hearing Officer Olmstead's decision. In this action Zervos asked permission to reargue, seeking to have the court reverse the City's termination of his GML §207-a benefits and retroactively restoring said benefits.

In deciding this action, the courts said that the City, “in its zeal to save the taxpayers money,” skipped a step by terminating Zervos’ GML §207-a benefits before affording him his due process rights by conducting his pre-termination hearing.

For this reason alone, said the court, Zervos was entitled to complete relief, namely recovery of his full salary and benefits from January 30, 2008 through September 16, 2008 and that his petition should have been granted in the first instance.

For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2010/2010_50661.htm

Wednesday, April 28, 2010

Governor Paterson proposes to furlough most Executive Branch State employees one day per week until the 2010-2011 budget is passed

Governor Paterson proposes to furlough most Executive Branch State employees one day per week until the 2010-2011 budget is passed
Source: Office of the Governor

On April 27, 2010, Governor Paterson said he intends furlough most Executive Branch State employees one day each week “during each weekly emergency appropriation bill period until a responsible final 2010-11 budget is passed.”

Under the Governor's proposal, State agency commissioners will be given the discretion to schedule their employees' one furlough day per week, beginning the week of May 10. Employees will not come to work on their furlough day and will not be paid for their furlough day.

The Governor’s announcement states that “Employees would not be allowed to charge their leave accruals to offset this salary reduction and agencies would not be able to use overtime to make up for loss of productivity.”

The Budget Director is to designate positions providing direct care or certain security services as "essential" and the employees serving in those positions would not be furloughed.

Examples of “essential” positions include: Correction Officer; Nurse; and State Trooper.

The Governor said that employees designated managerial or confidential within the meaning of the Taylor Law will not be subject to the furlough, “since, unlike union employees, their scheduled general salary increase has been eliminated in each of the last two years.”

Harvey Randall Comments: Assuming without conceding that there is some authority for “furloughing” state employees, the announcement is silent with respect to the impact of the Governor's proposal on state workers having an already “scheduled absence” or other authorized leave with pay during any period during which any “weekly emergency appropriation bills” are operative.

NYPPL's files contain the following courts decision dealing with furloughing public employees:

1. Suffolk County Ass'n of Mun. Employees, Inc. v. County of Suffolk, 147 Misc.2d 744, wherein the union sought a temporary restraining order to prevent Suffolk County from involuntarily furloughing or laying off union members. Here the union advanced two different theories: [a] Suffolk's “failure to negotiate in good faith” and [b] Suffolk's “attempt to breach the contract entered into between the parties.” The court decided that the union's action was premature in that the matter should either be referred to PERB with respect to the alleged “failure to negotiate in good faith” or resolved through the contract grievance procedure with respect to the union's alleged “breach of contract” claim;

2. CSEA Local 830 v Nassau County, 207 AD2d 589, wherein Nassau County and Local 830 negotiated a 5.5% wage increase and the County, claiming authority under the Management Rights Clause set out in the collective bargaining agreement, thereafter unilaterally decided that unit members would be "furloughed" from their jobs for one day in each of a number of payroll periods until the "payroll savings" were sufficient to offset the cost of the negotiated salary increase. PERB decided that it did not have jurisdiction to determine the dispute within the meaning of §205(5)(d) of the Civil Service Law;

3. CSEA and Patchogue-Medford UFSD, 28 PERB 3026, wherein CSEA charged the Patchogue-Medford Union Free School District with an unfair labor practice when the District unilaterally furloughed its kindergarten, special education and other teacher aides without pay on a day when parent/teacher conferences were scheduled. PERB held that the relevant contract provision permitted the school district to furlough employees who were not required for work; and

4. In Local 870 and Deer Park Union Free School District, 28 PERB 3080, PERB held that a Taylor Law contract provision that allowed the employer to "change all existing rules and policies and/or institute new rules, regulations, orders and policies on any and all matters and subjects" except as provided in the Taylor Law agreement permitted the school district to unilaterally change the scheduling of employee vacation days or place employees on furloughs because the contract was silent with respect to scheduling vacations or furloughing employees.

A continuing pattern of insubordination and poor work with no mitigating circumstances results in a recommendation that the employee be terminated

A continuing pattern of insubordination and poor work with no mitigating circumstances results in a recommendation that the employee be terminated
Matter of the NYC Department of Law v Lawrence, OATH Index #1312/10

Ingrid Addison, an OATH Administrative Law Judge, recommended that a workers' compensation benefit examiner, Kevin Lawrence, employed at the New York City Law Department be terminated from his position.

Judge Addison found that Lawrence had “a huge backlog of overdue authorizations and bills that he failed to process.” She also found the Lawrence had caused payments to be erroneously made on controverted workers’ compensation claims.

Lawrence was also found guilty of acting in a threatening manner towards his supervisor and persistently refusing to follow her orders.

In the words of the Administrative Law Judge, “I find that respondent refused to follow his supervisor’s instructions on multiple occasions, engaged in intimidating behavior, and performed his duties in a negligent manner.”

The decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1312.pdf

The “substantial evidence” standard applies in administrative hearings; the "arbitrary and capricious" test governs in contract disciplinary actions

The “substantial evidence” standard applies in administrative hearings; the "arbitrary and capricious" test governs in contract disciplinary actions
Matter of Edwards v Oyster Bay-East Norwich Cent. School Dist., 2010 NY Slip Op 30922(U), April 8, 2010, Supreme Court, Nassau County, Judge Denise L. Sher [Not selected for publications in the Official Reports]

On or about October 22, 2008, Donald Edwards was hired by the School district as a custodian, a position in the competitive class. His continuation in serve was contingent on his satisfactorily completing his probationary period.

On March 3, 2009, Edwards was served with disciplinary charges alleging that he was guilty of incompetence and of insubordination.

The school district, contending that Edwards was not entitled to a Section 75 disciplinary hearing, stated that one was provided to Edwards pursuant to the applicable Collective Bargaining Agreement ("CBA"), which incorporated the "protections of Section 75 of the Civil Service Law."

Arthur Riegal, Esq. was designated to serve as the hearing officer by the school district.

Although Riegal dismissed a number of the specifications filed against Edwards, he found that Edwards was both incompetent and insubordinate and recommended that he be terminated from his position.

The school district adopted the Hearing Officer s findings and recommendations and adopted a resolution terminating.

Edwards sued the School District and the School District Board, contending that the school district’s decision to terminate him was “arbitrary, capricious, an abuse of discretion, affected by errors of fact and law, taken in bad faith, taken without substantial evidence on the records and in violation of law.” Edwards also argued that Hearing Officer s findings and conclusions were not supported by substantial evidence.

Here, it is undisputed that the petitioner was a probationary employee when he was terminated. Specifically, Edwards would not have become permanent until the completion of at least twenty-six weeks of employment.*

Judge Sher said that Edwards “had no right to challenge his termination by way of hearing or otherwise, absent a showing that he was entitled by law to a disciplinary hearing, the hearing that was had in this case was the result of a bargained for product of contract (not law).”

The court then stated that “It is well settled that when procedural protections are provided by contract, not law, the standard by which an administrative body’s decision must be judged is not the "substantial evidence" standard, as Edwards contends but rather the "arbitrary and capricious" test governs.

In a proceeding such as this, said Judge Sher, which challenges a determination made by an administrative agency, the court' s function is to ascertain, upon the proof before the agency, whether its determination had a rational basis in the record or, conversely, was arbitrary and capricious or affected by an error of law. An agency action is deemed to be arbitrary if it is taken "without a sound basis in reason and without regard to the facts.

In this instance the court said that the school district's determination need only be supported by a ' rational basis ' if it is to be upheld.

Accordingly, Judge Sher said that “in the light of the foregoing, this Court defers to respondent's factual determination that [Edwards] was guilty of insubordination and that he was incompetent, as it was not arbitrary and capricious and had a rational basis in the record and dismissed Edwards’ petition.

* Although the court said that “Edwards would not have become permanent until the completion of at least twenty-six weeks of employment,” Edwards was, in fact, a permanent employee but had not yet attained tenure in view of the fact that he had not yet satisfactorily completed the required probationary period. Case law holds that a probationary employee may be terminated at any time without a hearing after completing his or her minimum period of probation and before the end of the probationary period unless otherwise provided by a collective bargaining agreement. If the appointing authority wishes to terminate a probationary employee before he or she has completed his or her minimum period of probationary service, he or she is entitled to a disciplinary hearing pursuant to §75 of the Civil Service Law.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_30922.pdf

Tuesday, April 27, 2010

Workers’ Compensation benefits for injury suffered after falling from hotel roof denied as not having arisen in the course employment

Workers’ Compensation benefits for injury suffered after falling from hotel roof denied as not having arisen in the course employment
Matter of Maher v NYS Div. of Budget, 2010 NY Slip Op 03216, Decided on April 22, 2010, Appellate Division, Third Department

Emily B. Mahar, a New York State Budget Examiner, was unsuccessful in her appeal of a determination by the Workers' Compensation Board that Mahar's injury did not arise out of and in the course of her employment, thereby rejecting her claim for workers' compensation benefits.

Mahar filed a claim for workers' compensation benefits after she fell from a second-story roof at while attending a training conference.

Although a Workers' Compensation Law Judge found the claim to be compensable and awarded Mahar benefits, the Workers' Compensation Board disagreed, holding that Mahar had “deviated from her employment by climbing out onto [a hotel] roof, that such action was not reasonable and, hence, [Mahar’s] injury did not arise out of and in the course of her employment.

In affirming the Board determination, the Appellate Division noted that after attending the first day of a two-day training conference and the employer-sponsored dinner, Mahar and two coworkers stepped out onto the roof of the hotel sometime in the course of the evening. The roof, said the court, was accessible only through the bathroom window in the hotel suite. While on the roof Mahar placed her hands on the railing surrounding the roof, heard a loud crack and fell to the ground below.

The court said that for an injury to be compensable, it must arise out of and in the course of employment. Whether a particular activity is compensable is a factual issue for the Board to resolve, "with the test being whether the activit[y] [is] both reasonable and sufficiently work related under the circumstances."

Based on its review of the record as a whole, the Appellate Division said that it was not persuaded that the Board erred in concluding that Mahar's conduct — accessing the hotel roof via the bathroom window — was unreasonable under the circumstances.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03216.htm

Dismissal recommended by hearing officer after finding employee guilty of accessing sexually explicit materials while at work

Dismissal recommended by hearing officer after finding employee guilty of accessing sexually explicit materials while at work
New York City Law Department v Cooper, OATH Index #1394/10

OATH Administrative Law Judge John Spooner recommended termination for a 73-year-old paralegal found to have opened, sent, and printed sexually explicit e-mails, images, and videos.

In determining the appropriate penalty, ALJ Spooner took into account that Aban Cooper failed to perceive the inappropriateness of his conduct, instead taking from the incident only that he should avoid e-mail in the future.

The Administrative Law Judge reasoned that the Cooper's testimony indicated that if he could find new ways of accessing sexually explicit materials which did not involve posting them or e-mailing them, he would probably do so.

The decision is posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1394.pdf

Attorney-client privilege defeats motion to depose attorney

Attorney-client privilege defeats motion to depose attorney
Clark v Schuylerville Cent. School District, 57 AD3d 1145

Linda Clark, a teacher at Schuylerville Central School District, was placed on administrative leave after showing the R-rated movie Macbeth to her 10th grade class “in violation of the [d]istrict's policy and procedures."].

Thomas S. Martin, principal of Schuylerville Junior/Senior High School, told Jeffrey Honeywell, an attorney retained by the District to provide legal advice and counsel, that Clark had shown the film in violation of the District's policies and procedures.

Clark sued the School District and others, alleging defamation and intentional infliction of emotional distress. The only surviving claim in this action concerned Clark’s “cause of action for defamation with regard to Martin's statement.” Clark appealed a Supreme Court ruling that denied her motion to compel the District and Honeywell to give additional deposition testimony.

The Appellate Division affirmed the Supreme Court’s ruling.

Here, said the Court, Clark seeks to compel additional testimony regarding, among other things, the statement allegedly made by Martin to Honeywell. However, as Supreme Court decided, the District and Martin met their burden of establishing that the attorney-client privilege attached "as the defendants in this action were seeking legal advice from Honeywell relating to the management of the District's teaching staff, and that their conversations with Honeywell were confidential and private."

The Appellate Division held that the “defendants demonstrated that the information sought to be protected from disclosure was a 'confidential communication' made to the attorney for the purpose of obtaining legal advice or services' and ... there is no merit to [Clark’s] assertion that Reed or Martin engaged in conduct from which a waiver of the privilege could be inferred …” and dismissed her appeal.

N.B. The attorney-client privilege “belongs” to the client and not the attorney. Only the client may claim the privilege and only the client may elect to waive it. However, a court may deem communications between the client and a third party to constitute a waiver of the privilege.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09685.htm

Monday, April 26, 2010

Nepotism and public employment in New York State

Nepotism and public employment in New York State
Public Officers Law §73.14 (a)

New York State Inspector General Joseph Fisch alleges the New York State Theatre Institute’s (NYSTI) Producing Director, Patricia Snyder, has engaged in nepotism* by “routinely [hiring] members of her immediate family for NYSTI productions” while Attorney General Andrew Cuomo has alleged that a State Senator, Pedro Espada, Jr., had engaged in nepotism by employing a relative to serve as a special assistant when he took office.

Public Officers Law §73.14 (a) provides as follows:

No statewide elected official, state officer or employee, member of the legislature or legislative employee may participate in any decision to hire, promote, discipline or discharge a relative for any compensated position at, for or within any state agency, public authority or the legislature.

The New York State Commission on Public Integrity, charged with interpreting, administering, and enforcing the State's ethics laws, has commented that the current definition of the term “relative” for purposes of §73.14 (a) “is confusing and fails to recognize significant relationships that should appropriately be included within the definition.”

To cure this, the Commission has proposed that Public Officers Law §73(1)(m)** be amended to clarify the term “relative” to include blood relatives as well as persons living in the same household that may not share a blood relation.

According to the Commission, as currently written the statute defines a relative as “any person living in the same household as the individual” and includes foreign exchange students, friends and roommates and "direct descendants" of the State Officer or employee grandparents or the spouse of such descendants.

The following relationships, said the Commission, are not “relatives” for the purposes of the statute unless such individuals reside in the state officer’s or employee’s household: foster children, adopted children, step children, “in-law” relatives, and step-relatives.***

The trend in many states, said the Commission, is to define the term “relative” by identifying the actual relationship the term is intended to capture. It recommends that legislation be enacted that would re-define the term “relative” by specifically identifying the blood relationships, and step relationships that fall within its plain meaning, and domestic partner relationships.

NYPPL has set out some court and administrative decisions concerning nepotism at:

http://publicpersonnellaw.blogspot.com/2010/04/state-inspector-general-alleges-that.html


* Although an anti-nepotism policy is generally viewed as barring of the employment of relatives in the same organization, technically nepotism involves an appointing authority appointing others to public positions because of the blood or marital relationship of the individual to the appointing authority. In other words, nepotism does not simply involve the employment of relatives within an organization; it results when the individual is employed within the organization solely because of the influence or authority of his of her relative to effect the employment.

**
Public Officers Law §73(1)(m) currently defines the term “relative" to mean “any person living in the same household as the [State officer or employee] and any person who is a direct descendant of that individual's grandparents or the spouse of such descendant."

*** In its 2008 Annual Report the Commission stated that “The Commission proposal [amending the definition of "relative"] would clarify the term to include blood relatives as well as persons living in the same household that may not share a blood relation. As currently written, said the Commission, the following relationships are not captured by the statute unless such individuals live in the same household: foster children, adopted children, step children, “in-law” relatives, and step-relatives.”

Friday, April 23, 2010

COBRA Premium Reduction

COBRA Premium Reduction
Source - U. S. Department of Labor, Employee Benefits Security Administration Fact Sheet

The American Recovery and Reinvestment Act of 2009 (ARRA), as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA.

The premium assistance is also available for continuation coverage under certain State laws. “Assistance Eligible Individuals” pay only 35 percent of their COBRA premiums; the remaining 65 percent is reimbursed to the coverage provider through a tax credit.

The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months.

Generally, the maximum period of continuation coverage is measured from the date of the original qualifying event (for Federal COBRA, this is generally 18 months).

However, ARRA, as amended, provides that the 15 month premium reduction period begins on the first day of the first period of coverage for which an individual is “assistance eligible.” This is of particular importance to individuals who experience an involuntary termination following a reduction of hours. Only individuals who have additional periods of COBRA (or state continuation) coverage remaining after they become assistance eligible are entitled to the premium reduction.

Those who are eligible for other group health coverage (such as a spouse's plan or new employer’s plan) or Medicare are not eligible for the premium reduction.

There is no premium reduction for periods of coverage that began prior to February 17, 2009.

The full text of the Fact Sheet is posted on the Internet at:
http://www.dol.gov/ebsa/pdf/fsCOBRApremiumreduction.pdf

Employee has the burden of proof that the decision that he or she did not satisfactorily complete a probationary period was made in bad faith

Employee has the burden of proof that the decision that he or she did not satisfactorily complete a probationary period was made in bad faith
Matter of Davids v City of New York, 2010 NY Slip Op 03247, Decided on April 22, 2010, Appellate Division, First Department

Joseph Davids was demoted* from the rank of probationary captain to his permanent title of lieutenant Davids filed a petition pursuant to CPLR Article 78 in which he asked the court to annul the City’s action.

The Appellate Division unanimously affirmed Supreme Court’s decision dismissing Davids’ petition.

The court found that the record indicated that there was a rational basis for the City’s decision -- his job performance was unsatisfactory. Further, the Appellate Division said that Davids had not met his burden of establishing that the demotion was made in bad faith.

Although Davids contended that the City failed to follow the procedures for conducting and preparing his performance evaluations, the court decided that this was a “technicality” and the delays complained of by Davids “were undertaken in an attempt to provide [Davids] with time to bring his performance up to department standards and did not evidence ”bad faith” on the part of the appointing authority.

* Randall Comments: Although the Appellate Division characterized this personnel change as a demotion [in title and grade], in reality Davids was reinstated to his former position from which he was on leave pending the satisfactory completion of his probationary period upon his promotion to Captain.

Civil Service Law Section 63 provides, in pertinent part, “When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.”

Demotion as a personnel transaction is typically encountered in connection with a disciplinary action and is, for example, one of several penalties permitted to be imposed upon an employee found guilty of charges preferred against him or her pursuant to §75 of the Civil Service Law or as one of the penalties authorized in a contract disciplinary procedure.

Significantly, the courts have distinguished between promotion from a promotion list and an employee "advancement" in the public service via an open-competitive examination as illustrated by the decision in Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805. Here the court distinguished a promotion from a promotion list from a “promotion” to a higher level position from an open competitive examination list.

Similarily, in Bethel v McGrath-McKechnie, 95 N.Y.2d 7, the Court of Appeals ruled that Bethel had not been promoted and thus Civil Service Law Section 63(1) did not apply to her situation. Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said because Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03247.htm

Correction officer found guilty “undue familiarity” with prison inmates

Correction officer found guilty of “undue familiarity” with prison inmates
Department of Corrections v Murchison-Hunt, OATH Index #297/10

OATH Administrative Law Judge Joan Salzman recommended that Mercedes Murchison-Hunt, a New York City correction officer who accepted earphones from an inmate, listened to music with them, and danced to the music in front of inmates while on duty be suspended for 60 days without pay.

The ALJ explained that not only did the respondent's conduct create safety concerns, but it also raised issues of undue familiarity because she accepted the earphones from an inmate.

ALJ Salzman additionally found that the respondent recorded a conversation with a captain even though audio recording was not permitted on the job without authorization, refused to respond to inquires or relinquish the recording device, and filed a false report.

The decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-297.pdf

US Court of Appeals, 11th Circuit, holds FMLA right to commence leave is not absolute

US Court of Appeals, 11th Circuit, holds FMLA right to commence leave is not absolute
Krutzig v. Pulte Home Corp., No. 09-12512 (11th Cir. April 5, 2010)

Source: The FMLA Blog
- http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Betsy Krutzig was employed by Pulte Homes. At the time of the events at issue she was on a performance improvement plan. On August 17, she requested FMLA leave for surgery. On the same day, a disgruntled customer filed a complaint with a Pulte Vice President. The VP decided the next day to terminate Lrutzig for failure to improve, and due to the customer complaint.

Krutzig sued alleging that her termination a day after requesting FMLA leave interfered with her right to take FMLA leave. The Eleventh Circuit disagreed. Joining the Sixth, Eighth, and Tenth Circuit, the Eleventh Circuit held that an employee does not have the absolute right to commence FMLA leave. An employee may be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave.

The Court reasoned that an employee who requests FMLA leave has no greater protections against her employment being terminated for reasons unrelated to an FMLA request than she did before submitted her request. The Court found that to be the case, and affirmed the district court's award of summary judgment in favor of Pulte.

Mr. Bosland Comments: The decision is not a complete surprise as the Eleventh Circuit had previously found that an employer could deny reinstatement to an employee for reasons unrelated to the exercise of FMLA rights without violating the FMLA. The case presented the Court with the opportunity to apply the same rationale to discipline an employee after they have requested FMLA leave, thereby preventing the employee taking FMLA. Again, the employer may only do so where the action taken was for reasons unrelated to the exercise of FMLA rights. As in this case, legitimate reasons may involve removal. Non-disciplinary reasons, such as a layoff or business shutdown, may also prevent an employee from exercising FMLA rights post-request.

The Eleventh Circuit covers Atlanta, Georgia, and Florida.

Thursday, April 22, 2010

The employer's failure to reply to a request to withdraw a resignation otherwise permitted by its Regulations is arbitrary and an abuse of discretion

The employer's failure to reply to a request to withdraw a resignation otherwise permitted by its Regulations is arbitrary and an abuse of discretion
Matter of Mendez v New York City Dept. of Educ., 2010 NY Slip Op 30889(U), April 9, 2010, Supreme Court, New York County, Judge Jane S. Solomon [Not selected for publication in the Official Reports]

When the New York City Department of Education declined to permit Mildred Mendez, a then tenured teacher, to withdraw her letter of resignation, Mendez sued seeking a court compelling the DOE to honor her request to withdraw the resignation and to reinstate her as a teacher with back pay.

Mendez contended that she submitted her resignation because she believed, “based on threats made by her school's principal,” that she would receive an unsatisfactory rating and risked losing her teaching license in a disciplinary proceeding under Education Law §3020-a.

According to the decision:

1. Mendez was advised by her union representative to resign her position to avoid the §3020-a proceeding.

2. After Mendez submitted a letter of resignation to her principal, the principal informed her that she had received her letter of resignation, but that it needed to be in a different format, and “requested that Mendez sign a form resignation letter stating that she “irrevocably resigned her position.”

3. Mendez refused to change the form of her letter and, instead, submitted an application to withdraw her resignation.

4. Mendez was then reassigned to a different school but ultimately removed from the payroll on August 28, 2008.

Although Mendez then sent DOE a number of letters asking that she be restored to the payroll, DOE did not reply to any of her correspondence.

Judge Solomon said that although [DOE] Chancellor‘s Regulation 205(26) states that once a resignation is submitted, it is considered final, Chancellor’s Regulation 205(29) provides [subject to limitations not here relevant] “that a teacher who attained tenure prior to the resignation shall remain tenured and shall, upon written request, be permitted to withdraw her resignation subject only to the medical examination and the approval of the Chancellor, provided that the reinstatement occurs within the next five years before the opening of school in September.”*

The court rejected DOE motion to dismiss Mendez’s petition as untimely, noting that:

1. Mendez had five years from September 1, 2008 to request to withdraw her resignation and be reinstated as a tenured teacher. Even if the court were to deem her Article 78 petition the first notice of this request, it would have been timely.

2. Mendez sought withdrawal before its effective date and the Chancellor has not responded to the request.

Mendez also argued that the initial resignation was ineffective “because there was no meeting of the minds” as the principal did not accept her resignation as written, and instead proposed alternative language.

Judge Solomon ruled that “Given the mandatory language of Chancellor's Regulation 205(29) that the withdrawal shall be granted [emphasis in the opinion] subject to approval, the Chancellor's failure to approve or disapprove the withdrawal of her resignation for nearly two years is unconscionable."**

Further, said the court, no explanation or excuse for the Chancellor's inaction was offered by DOE and even had there been a reason to refuse to approve Mendez's request to withdraw the resignation, the unreasonable delay in communicating the reason is itself arbitrary, irrational and an abuse of discretion.

As DOE had not yet serve an answer to Mendez’s petition, Judge Solomon said that a final determination of her petition would be premature and directed DOE to serve an answer to the petition Mendez had filed seeking reinstatement and back salary.

* Article 5(E) of the collective bargaining agreement between the DOE and Mendez’s union sets out substantially the same terms and conditions as set out in Chancellor‘s Regulation 205(29).

** In contrast, typically civil service commission rules for the classified service [educators are in the unclassified service] provide that once a resignation has been delivered to the appointing authority, the individual's request to withdraw such resignation is subject to approval at the discretion of the appointing authority. See, for example, 4 NYCRR 5.3(c), which, in pertinent part, provides that "A resignation [which must be in writing] may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority."

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/pdfs/2010/2010_30889.pdf

College professor is unsuccessful in challenging his denial of reappointment

College professor is unsuccessful in challenging his denial of reappointment

Matter of Fruehwald v. Hofstra University, ____Misc. 3d____(Nassau Co. April 19, 2010)
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Fruehwald appears to be part of a growing number of cases where a member of a law faculty commences litigation against his law school. Here, a legal writing instructor was denied a 5-year long-term renewable contract. After he accepted a one-year probationary type appointment, he sued claiming the Hofstra's decision to deny him a long-term contract was arbitrary and capricious which is the governing standard under CPLR Article 78.

After reviewing complicated procedural issues, the court concluded that Hofstra was not arbitrary and capricious, given the deference courts pay to law school decisions, because multiple observers noted issues with the petitioner's teaching performance. The court described the relevant standard as follows:

The courts should not " invade, and only rarely assume academic oversight, except with the greatest caution and restraint, in such sensitive areas as faculty appointment promotion, and tenure, especially in institutions of higher learning (Matter of Pace College Commission on Human Rights of City of New York 38 NY2d 28, 38; In re Bigler v Cornell University, 266 AD2d 92, Iv app dsmd 95 NY2d 777 and rearg den 95 NY2d 849; Loebl v New York University, 255 AD2d 257). The standard for judicial review is limited to whether the institution has acted in good faith or whether its action was arbitrary and capricious or irrational (Tedeschi v Wagner College 49 NY2d 652 , 658; see also Lipsky v New York Institute of Technology, 69 AD 3d 725). With respect to faculty appointments or the denial of appointments, a private university in New York is held to the standard of "substantial compliance" with its own rules and procedures (Gurstein v Bard College, Graduate Center for Studies in the Decorative Arts 280 AD2d 264); Loebl, supra at 258; see also Tedeschi supra).


Professor Rubinstein Comments:
I am really curious as to why the plaintiff commenced litigation in the first place. Other than his personal emotions about the case [which is an important part of employment law that attorneys sometimes discount], if he researched the case law, he had to know about the extreme deference Hofstra is entitled to and he had to know that given that there were multiple negative reports about him, he had an almost impossible burden.

What makes this case so unusual is that he commenced litigation against Hofstra while still employed. My guess is that plaintiff commenced this litigation to give him some leverage if his probationary appointment is terminated. He may have been trying to develop an argument that if his probationary appointment is terminated it was in retaliation for this lawsuit. This of course, is only speculation on my part.

Mitchell H. Rubinstein


Randall Comments: Court review of university decisions concerning the appointment of faculty is limited as demonstrated in Perinpanayagam v University At Buffalo & State Univ. of N. Y., 39 A.D.3d 1220.

Dr. Hiran Perinpanayagam appealed SUNY at Buffalo’s decision not to renew his appointment as an Assistant Professor in the School of Dental Medicine. Although Supreme Court annulled SUNY’s determination; the Appellate Division reversed that holding.

The Appellate Division said that “It is well settled that judicial review of a determination of an educational institution with respect to the appointment, promotion and retention of faculty is limited,” citing a number of decisions including New York Institute of Technology v State Div. of Human Rights, 40 NY2d 316.

While the determination of an educational institution with respect to the reappointment of a faculty member is “not entirely beyond judicial scrutiny”, the Appellate Division said that courts should only rarely exercise oversight in cases involving academic institutions of higher learning in areas such as faculty appointment, promotion, and tenure, and then only with “the greatest caution and restraint.”

The Appellate Division, Second Department, in Matter of Lipsky v New York Institute of Technology, 69 AD3d 725, [cited in Matter of Fruehwald above], also indicated that judicial review of a university's determination to deny tenure to a faculty member is limited.

Paul Lipsky was appointed as a tenure-track, assistant professor by the New York Institute of Technology and the terms and conditions of his employment were governed by a collective bargaining agreement [CBA] and was subject to a six-year probationary period.

Denied tenure after the end of his probationary period, Lipsky filed internal appeals pursuant to the terms of the CBA. As a result, Lipsky’s probationary period for one additional year and provided for a reconsideration of his application for tenure. At the end of the year, Lipsky’s application for tenure was reconsidered and, again, denied.

Lipsky filed CPLR Article 78 proceeding seeking to annul the determination denying his tenure application, alleging, among other things, certain procedures required by the CBA were not satisfied and that the determination denying him tenure was arbitrary and capricious. Supreme Court denied the petition and dismissed the proceeding; the Appellate Division affirmed.

Noting that “Judicial review of a university's determination to deny tenure to a faculty member is limited,” the Appellate Division said that in reviewing such a determination a court, which must not substitute its judgment for that of the university, must determine whether the determination was made in violation of the university's rules, or is arbitrary and capricious.

In this instance the Appellate Division concluded that Lipsky failed to establish that the determination denying his tenure application was made in violation of an applicable rule, or was arbitrary and capricious.

Further, said the court, while Lipsky contended that the Institute “improperly amended the criteria for tenure and improperly failed to publish those criteria,” he agreed to the modification and who was aware of the criteria that would be considered when his tenure application was reconsidered at the end of the additional year of probation. Accordingly, Lipsky was deemed to have waived “these arguments.”

Wednesday, April 21, 2010

Nepotism: The State Inspector General alleges that the NYSTI Producing Director did not recognize NYSTI is subject to the State’s ethics rules

Nepotism: The State Inspector General alleges that the NYSTI Producing Director did not recognize NYSTI is subject to the State’s ethics rules
State Inspector General’s “Report of Investigation of the New York State Theatre Institute”

New York State Inspector General Joseph Fisch alleges that the New York State Theatre Institute (NYSTI) under the direction of its Producing Director, Patricia Snyder, failed to recognize NYSTI’s existence as a public entity subject to the State’s ethics rules.

The Inspector General’s report states that:

“In practice, [Director Patricia] Snyder exercised unquestioned control over the selection of plays to be produced by NYSTI; directors to direct these productions; and the terms and conditions of employment of employees and artistic staff to perform in these productions. Under this authority, Snyder over a long period has routinely hired members of her immediate family for NYSTI productions without regard for state prohibitions on conflicts of interest. This pattern of nepotism has resulted in direct payments, reimbursements and other benefits, amounting to hundreds of thousand of dollars, to Snyder’s sons, daughters-in-law, and husband.”

According to the Inspector General’s findings, Snyder had primary, if not sole, responsibility over all NYSTI contracts including those resulting in payments to her family members and “she made no effort to screen or recuse herself from involvement in these contracts.” Rather, said the Inspector General, Snyder directly involved herself in these arrangements in apparent violation of the provisions of the state Public Officers Law on nepotism and conflicts of interest.*

The report states that “Despite the prohibitions in the Public Officers Law against actual and apparent conflicts of interest, Snyder defended her hiring of relatives, even claiming in her testimony to the Inspector General, ‘There is no law in New York State on nepotism’ … [and] NYSTI Board of Directors Chairman David Morris also testified he is ‘not aware of any restrictions’ on Snyder’s hiring of family members, a practice he indicated that he and the Board knew of and approved.”

Judge Fisch said that Snyder and other NYSTI employees must abide by the provisions of the state Public Officers Law directed at dispelling even the appearance of favoritism.

According to Judge Fisch, “Various provisions of Public Officers Law §74 directly prohibit such conduct these ethics rules are designed to prevent not only actual conflicts of interest but to dispel even the appearance of such.” Specifically, Judge Fisch continued, “These standards attempt to assure the public’s confidence in State and employees as they discharge their official duties. A public servant’s actions and affiliations must be above reproach, even if no actual conflict of interest is present. Any associations that give rise to the suspicion of favoritism, self-dealing or personal private gain by State officers shake the public’s confidence.”

Randall Comments: Although an anti-nepotism policy is generally viewed as barring of the employment of relatives in the same organization, technically nepotism involves an appointing authority appointing others to public positions because of the blood or marital relationship of the individual to the appointing authority. In other words, nepotism does not simply involve the employment of relatives within an organization; it results when the individual is employed within the organization solely because of the influence or authority of his of her relative to effect the employment.

In Commissioner of Education Decision #12794, the Commissioner of Education noted that §3016 of the Education Law deals with the issue of the employment of a relative by blood or marriage of a member of its school board as a teacher by the district. In essence, it requires that any such appointment must be approved by a two-thirds vote of the board. This requirement has the effect of countering potential favoritism in the selection of employees by the school board.

The focus of Decision12794, however, concerned the issue of the reinstatement of a relative of a school board member as teacher from a preferred list in contrast to the appointment of a relative de novo.

The Commissioner, noting that a school board may decline to place a tenured teacher on the preferred list only if the individual does not have a record of faithful, competent service in the office or position he or she has filled, concluded that the two-thirds vote requirement set out in §3016 does not apply where a preferred list mandates reinstatement of an individual to a teaching position in the school district.

The Commissioner also noted that although §3016 does not contain any explicit disclosure requirement of any such relationship, such a disclosure might be advisable to avoid even an appearance of favoritism.

In Opinions of the Attorney General, 92 Informal 61, the Attorney General, when asked how a member of a city council should conduct himself or herself when a matter involving the terms and conditions of employment of the spouse of the member was before the council, opined that the member "must recuse himself or herself from participating in matters affecting the compensation, employment and other terms and conditions of employment of his or her spouse.” The opinion notes that "public officers have responsibility to exercise their official duties solely in the public interest [and] should avoid circumstances which compromise their ability to make impartial judgments." Further, public officers must avoid the appearance of impropriety in order to maintain public confidence in government.

In some instances anti-nepotism rules have been codified by a State agency or by a political subdivision of the State. For example 22 NYCRR 8.1 of the New York Official Compilation of Rules and Regulations, which applies to the judiciary, provides: No person who is a "relative within the sixth degree of relationship" of any judge may be appointed to any State-paid position in the Unified Court System.

As Jay Hall of Everton Publishers explains, a "degree of separation" refers to the number of generations between each person and their common ancestor.

An example of six degrees of separation: second cousins. Second cousins are three generations from their common grandparents and thus are separated by "six degrees." First cousins are separated by two generations and enjoy four degrees of separation. There, of course, could be more complex relationships involving six degrees of separation.

The Office of Court Administration views "six degrees" as applying up to and including persons who are second cousins of a judge.

There is some case law concerning nepotism in employment situations as well. In Gabriele v Metropolitan Suburban Bus Authority, 239 A.D.2d 575, the Appellate Division considered the issue.

Vincent Gabriele III began working for the Metropolitan Suburban Bus Authority in 1985. He received a number of promotions and when the Authority was considering filling two foreman positions, it ranked Gabriele number 3 of nine candidates.

However, the Authority appointed the candidates who ranked fifth and seventh on its list to the vacancies. It said the reason Gabriele was not selected was that his father and uncle were foremen with the Authority. The Authority contended that promoting Gabriele would violate its own "anti-nepotism" policy.

Gabriele sued, seeking a court order directing his appointment to the foreman position, with back pay and benefits.

One of the points made by the Appellate Division was that "there was no official anti-nepotism policy in effect until after the promotion decision ... was made". In addition, the record showed that "anti-nepotism" concerns were not mentioned in any job posting, application form or otherwise communicated to employees or prospective employees by the Authority.

The Appellate Division also commented that it was undisputed that during Gabriele's ten years of service with the Authority, "several people were hired for positions where they were either supervised by family members or working in the same department with family members."

Concluding that the Authority's denying Gabriele's promotion on the basis of an unsubstantiated anti-nepotism policy was arbitrary and capricious, the Appellate Division approved the trial court's decision directing Gabriele's retroactive appointment as a foreman, with back salary and benefits.

*
Public Officers Law §74, Code of ethics.

The Report of the Inspector General is posted on the Internet at:
http://www.ig.state.ny.us/pdfs/Report%20of%20Investigation%20of%20the%20New%20York%20State%20Theater%20Institute.pdf

Tuesday, April 20, 2010

Only the union or the employer may demand that an issue be submitted to arbitration

Only the union or the employer may demand that an issue be submitted to arbitration
New York City Tr. Auth. v Gorrick, 2010 NY Slip Op 03044, Decided on April 15, 2010, Appellate Division, First Department

The New York City Transit Authority sued Philbert Gorrick, its former employee, in connection with Gorrick’s “admittedly fraudulent misrepresentation of earnings in an affidavit executed for the express purpose of inducing the Transit Authority to pay him more than $100,000 in back pay after he was successful in obtaining an arbitration award in a disability discrimination action.”

Gorrick filed an Article 75 petition to compel arbitration of the Authority’s claim rather than have it litigated in the courts.

Although a Supreme Court judge granted Gorrick's motion to stay the Transit Authority’s lawsuit and compel arbitration, the Appellate Division unanimously reversed the lower court’s ruling “on the law.”

The Appellate Division said that the Supreme Court was incorrect when it granted Gorrick’s motion to compel arbitration pursuant to a collective bargaining agreement between the Authority and Gorrick’s former union.*

The sole issue in to be determined, said the court, is whether Gorrick's admittedly fraudulent misrepresentation of earnings in an affidavit executed for the express purpose of inducing the Transit Authority to pay over $100,000 in back pay to him constitutes actionable fraud, “an issue which does not require interpretation or application of the collective bargaining agreement.”

Further, said the court, Gorrick, as an employee, has no rights under the collective bargaining agreement, to which only his former employer and union are parties, to unilaterally bring the issue to arbitration.

* The union was not a party in this action.

Randall Comments: Although it is generally held that only the Union or the Employer have the power to go to arbitration in connection with a contract grievance procedure, employees unhappy with their union's decision not to go to arbitration may turn to the courts for an order to permit their proceeding against the employer directly.

In Matter of Hoffman [Board of Education of the City of New York], 84 AD2d 840, the Appellate Division ruled that the Union (United Federation of Teachers) was not required to seek arbitration after having processed the employee's grievance through the initial stages of the grievance procedure and received unfavorable results.

The Court also said that if an employee wished to proceed directly against an employer when the Union refused to arbitrate, the employee would first have to show that the Union breached its duty of fair representation (i.e.: bad faith, arbitrariness or discriminatory conduct).

In Hoffman, the employee had sought a benefit from an earlier arbitration award that provided redress for an "interrupted" sabbatical leave. The employer refused to apply the arbitration award decision claiming that the employee's application for the benefit was untimely. The Union refused to arbitrate the question of timeliness after losing at all previous steps of the grievance procedure.

The Gorrick decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2010/2010_03044.htm

Disapproval of an application for General Municipal Law §207-c disability benefits may be annulled only if the determination is arbitrary and capricio

Disapproval of an application for General Municipal Law §207-c disability benefits may be annulled only if the determination is arbitrary and capricious
Matter of Tancredi v Town of Harrison/Village of Harrison Police Dept., 2010 NY Slip Op 03136, Decided on April 13, 2010, Appellate Division, Second Department

The Chief of Police of the Town of Harrison/Village of Harrison Police Department denied police officer Ralph Tancredi’s application for disability benefits available under General Municipal Law §207-c.

Tancredi filed an Article 78 petition challenging the chief’s decision and Supreme Court, Westchester County, annulled the chief’s determination and awarded Tancredi benefits.

The Appellate Division reversed Supreme Court’s ruling, confirming the chief’s action denying Tancredi’s application for §207-c disability benefits “on the merits.”

According to the decision, in November 2006 Tancredi filed an incident report indicating that he had injured his hand and back while trying to subdue an emotionally disturbed person at the police station. Notwithstanding this, Tancredi did not miss any work until June 2007, at which time he was served with disciplinary charges involving an unrelated matter* and suspended with pay.

The Appellate Division said that a determination denying an application for General Municipal Law §207-c benefits may be annulled only if it is arbitrary and capricious and a denial of such an application is not arbitrary and capricious if it has a rational basis.

Pointing out that the applicant for GML §207-c benefits has the burden of proving a direct causal relationship between his or her job duties and the injury or illness for which disability benefits are sought, the Appellate Division said that Tancredi “in support of his application for benefits, … submitted medical records showing that he commenced medical treatment for the subject injuries … more than a year after the incident which allegedly caused the injuries."

While the medical records Tancredi provided to the Chief of Police prior to his determination showed that, commencing in December 2007, Tancredi sought medical treatment and reported to his medical providers that his condition was caused by the November 2006 incident, he did not submit clear medical proof or any medical opinion as to causation. Thus, said the court, the denial of Tancredi's application for §207-c disability benefits was neither arbitrary nor capricious.

Tancredi also contended that the fact that the Chief of Police had preferred two sets of unrelated disciplinary charges against him “undermine[s] the impartiality of the Chief of Police” so as to render the chief's otherwise rational denial of Tancredi's application for benefits arbitrary and capricious.

The Appellate Division rejected this argument, and dismissed Tancredi's appeal, commenting that “the petition should have been denied, the determination confirmed, and the proceeding dismissed” by Supreme Court.

* A second set of disciplinary charges, involving yet a different unrelated matter, were preferred against Tancredi in October 2007.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03136.htm
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
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USLaw.com has listed about 500 of NYPPL’s Internet postings on its Web site

USLaw.com has listed about 500 of NYPPL’s Internet postings on its Web site

A typical entry provides basic information concerning the NYPPL item – with a link to the full posting. For example, USLaw posted the following:

Consideration of hearsay evidence in a Section 75 disciplinary hearing permitted
Posted on December 17, 2009

Consideration of hearsay evidence in a Section 75 disciplinary hearing permitted
Matter of Ebling v Town of Eden, 59 AD3d 978 -- The Appellate Division confirmed the dismissal of Stephen Ebling from his position following a hearing pursuant to Civil Service Law §75...

NYPPL’s postings since May 13, 2009 are found on USLaw’s blog at:

http://www.uslaw.com/law_blogs/New+York+Public+Personnel+Law?blog=44

To access the complete feed login or register for free. By so doing you will also gain access to USLaw.com's legal answers service.

Monday, April 19, 2010

Employee suspended without pay in excess of the time authorized by §75 may be entitled to be paid for some or all of such suspension without pay

Employee suspended without pay in excess of the time authorized by §75 may be entitled to be paid for some or all of such suspension without pay
Elizabeth Miller Nabors v Town of Somers, 2010 NY Slip Op 03089, Decided on April 13, 2010, Appellate Division, Second Department

Elizabeth Miller Nabors began working part time for the Town of Somers. Although she worked about 10 hours per week she submitted claims to the Unemployment Insurance Division of the New York State Department of Labor [UID] in which she stated that she had not worked any days during her part-time employment.

Subsequently Nabors became a full time employee. UID then determined that she had received benefits to which she was not entitled and that she had willfully misrepresented her eligibility for unemployment benefits. Nabors appealed the penalty UID imposed on her but the hearing, an administrative law judge sustained UID’s initial determination.

Somers then initiated a disciplinary action charging Nabors with two counts of misconduct based on her alleged false representations to the UID and to the ALJ, and one charge of alleged incompetence, contending that Nabors made false and willful misrepresentations that excluded her from coverage under the Town's insurance policy.

The Town placed Nabors on unpaid suspension effective February 10, 2006, "for the period allowed by Civil Service Law §75(3)," and scheduled a hearing for March 3, 2006.

In a letter dated February 28, 2006, Nabors's newly retained counsel requested an adjournment of the hearing originally scheduled for March 3, 2006, until sometime after March 9, 2006. In so doing, Nabors's attorney acknowledged that her "client is currently on an unpaid suspension pending the decision of the aforementioned hearing and agree that such condition will continue until a hearing is conducted and the matter resolved."*

The Town consented to the adjournment, and the parties' respective counsel thereafter agreed that the hearing would be adjourned until March 20, 2006. Subsequently the hearing officer advised the parties that the hearing was adjourned from March 20th to April 21, 2006. Then the Town's attorney requested an adjournment of the hearing, and the hearing officer granted the request by rescheduling the hearing for May 18, 2006.

The hearing officer again adjourned the hearing, this time until July 5, 2006 and ultimately the hearing was conducted on July 5, 2006, and July 28, 2006.

The hearing officer issued a decision and order dated January 4, 2007, finding Nabors was guilty of all three charges. Finally, in a resolution dated May 11, 2007, approximately 15 months after Nabors's suspension from employment began, the Town adopted the recommendations of the hearing officer, and terminated Nabors's employment.

Nabors next initiated a lawsuit seeking summary judgment to recover back pay for the period of her suspension in excess of 30 days, as provided by Civil Service Law §75(3). Supreme Court denied Nabors's motion, concluding that she waived her right to be paid during her suspension. The Appellate Division disagreed, ruling that Nabors did not waive her right to be paid during her suspension.

The Appellate Division explained that “As long as the delay in disposing the charges is not ‘occasioned by the employee's fault,’ an employee suspended for a period in excess of 30 days may recover back pay for the excess period even if he or she is eventually found guilty of the charges.”**

Here, said the court, Nabors sought a brief adjournment of the original hearing date. Notwithstanding the acknowledgment by Nabors's counsel that Nabors was suspended without pay pending the hearing and resolution of the matter, and despite the absence of any coercion, the Town may not be permitted to use that acknowledgment alone as the basis for delaying the hearing for an indefinite period without paying Nabors.

Finding that Nabors did not openly and knowingly agree to waive all rights to back pay or to a timely resolution, the Appellate Division ruled that she was is entitled to back pay and remitted the matter to the Supreme Court for a hearing to determine “the portion of the delay for which the Town bears responsibility” and to award her back pay accordingly.

* Although the right to back pay may be waived, the Appellate Division noted that when considering whether a voluntary waiver of rights has occurred, the focus is "upon the existence of a bona fide agreement by which the employee received a desired benefit in return for the waiver, the complete absence of duress, coercion or bad faith and the open and knowing nature of the waiver's execution."

** The Appellate Division affirmed the Town's determination, holding that finding Nabors guilty of misconduct and incompetence was supported by substantial evidence at the hearing. In addition, the court sustained the penalty imposed, dismissal, holding that in light of the charges and Nabors's employment duties, the penalty imposed was not so severe as to be "shocking to one's sense of fairness".

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03089.htm

Hearing officer to determine the weight to be given to evidence offered in the course of disciplinary hearing

Hearing officer to determine the weight to be given to evidence offered in the course of disciplinary hearing
Matter of Board of Educ. of Byram Hills Cent. School Dist. v Carlson, 2010 NY Slip Op 03120, Decided on April 13, 2010, Appellate Division, Second Department

The Byram Hills Central School District served disciplinary charges upon Gregory E. Carlson pursuant to §3020-a of the Education Law. The hearing officer dismissed the charges that the School District had filed against Carlson.

Byram Hills filed a petition pursuant to Article 75 of the Civil Practice Law and Rules* seeking to vacate the hearing officer’s decision. The district contended that the hearing officer erred in refusing to give substantial weight to a tape recording and the documents that it had introduced into evidence in the course of Carlson's disciplinary hearing. Supreme Court affirmed the hearing officer’s decision.

The Appellate Division agreed with the lower court’s decision, noting that the district:

[1] had not demonstrate any basis for vacating the determination as provided set out in CPLR §7511** and

[2] the hearing officer’s determination had a rational basis and was supported by the record.

The court said that it was up to the hearing officer to determine what, if any, weight should be given to the evidence and a court should not substitute its judgment for that of a hearing officer, citing Altsheler v Board of Educ. of Great Neck Union Free School Dist., 62 NY2d 656.

* Although most challenges to a decision made by a quasi-judicial body are filed pursuant to Article 78 of the Civil Practice Law and Rules, Education Law §3020-a[5] provides that appeals of a decision by a hearing officer shall be processed pursuant to Article 75 of the Civil Practice Law and Rules.

** Essentially an arbitration award may be vacated if the court finds corruption, fraud or misconduct in procuring the award; than an arbitrator appointed as a neutral was not impartial, [except where the award was by confession]; or that the arbitrator failed to follow the procedures set out in Article 75 [unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection]. In addition, a court may vacate an arbitration award if it finds that it is violative of a strong public policy, is irrational, or clearly exceeded a specific limitation on an arbitrator's power.

N.B.
Not withstanding the statute of limitations set out in Article 75 for filing a timely motion to vacate an arbitration award, the Education Law §3020-a[5] allows only 10 days after receiving the hearing officer’s decision to file an appeal challenging the hearing officer’s determination.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03120.htm


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If you are interested in learning more about disciplinary actions involving public employees in New York State and its political subdivisions, please click here: http://thedisciplinebook.blogspot.com/2010/03/discipline-book.html
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HR mangers may be held individually liable for FMLA violations

HR mangers may be held individually liable for FMLA violations
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

HR executives who engaged in a forensic search of an employee's computer to find evidence (forwarding an e-mail to another employee) to fire an injured employee two weeks after the employee requested FMLA leave were sufficiently involved with the firing decision to render them individually liable for violation of the FMLA leave.

Until his termination, Dimitry Narodestsky had been employed by Cardone Industries for 12 years. A few weeks before his termination he was diagnosed with a leg injury requiring surgery. Narodetsky's wife contacted Cardone's manager of health benefits to request time off and disability benefits for her husband for the operation. The next day, members of the human resources department searched Narodetsky's computer.

Narodetsky claimed that the search was conducted to find a reason to fire him thereby negating his need for leave. Discussion continued regarding the timing of the scheduled surgery to minimize disruption to Cardone. A few weeks after the initial request Narodetsky was called into a meeting attended by three members of the Cardone HR Department, Narodetsky’s employment was terminated for forwarding an e-mail to another employee in violation of company policy.

Narodetsky sued Cardone and the three individuals, including the human resource manager, a human resource representative, the CEO, and the manager of health benefits, for allegedly interfering with his FMLA rights and retaliating against him after he provided notice of his need for FMLA leave. Cardone and the individually named HR managers moved for summary judgment to dismiss the claims against the individual managers.

In rejecting the summary judgment motion, the district court initially noted that the FMLA allows an aggrieved individual to file a civil suit for money damages against an "employer." The FMLA defines an "employer" to include "any person who acts, directly or indirectly, in the interest of an employer to any employees of such employer." 29 USC 26114(A)(ii)(i). The DOL regulations extend individually liability for FMLA violations to "corporate officers acting in the interest of an employer," as that term has been interpreted by the Fair Labor Standards Act. 29 CFR 825.104(d). After noting that the Third Circuit had not definitively ruled on the issue, the court cited cases within the Circuit that had found individual liability under the FMLA and FLSA where the individual exercised sufficient control of the terms and conditions of employment, including the authority to fire an employee.

The court found that the individually-named managers had exercised sufficient control over the decision to terminate Narodetsky.. With respect to the three human resource professionals, the court inferred that they had the authority to fire Narodetsky based on their presence at the meeting where he was terminated. The court also noted some of their involvement in the forensic search of Narodetsky's computer.

Narodetsky v. Cardone Industries, Inc., et. al., No. 09-4734 (E.D. Pa. Feb. 24, 2010)

Mr. Bosland Comments: The decision is consistent with many others around the country that have found that HR managers may be individually liable for violations of the FMLA where they have been involved in the decision to fire the plaintiff-employee. The prospect of individual supervisor liability in addition to employer liability greatly increases the cost and exposure of FMLA litigation. The employer may need to hire separate counsel to represent the individually-named managers. Settlements will need to cover the employer and the individual managers. Individual managers will want to confirm that the employer's insurance liability coverage will pay for separate legal counsel and any adverse judgment that may be rendered against the manager. Absent such coverage, managers may be exposed to hundreds of thousands of dollars of legal fees and adverse judgments for FMLA violations, even if the violation was unintentional.

Budget difficulties may result in school districts considering school consolidations and staff layoffs

Budget difficulties may result in school districts considering school consolidations and staff layoffs
Source: Newspaper reports

It is expected that decisions involving school consolidations and closings and the layoff of personnel by school boards will be contested via an appeal to the Commissioner of Education.

When considering such appeals in the past, the Commissioner has opined:

1. Education Law §1709(33) authorizes a board of education to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Matter of Older, et al. v. Board of Education, 27 NY2d 33. Further, a board of education has broad discretion in its assignment of pupils to schools (Matter of Addabbo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619, cert den 382 US 905).

2. A board’s decision to reorganize its schools will not be overturned by the Commissioner of Education unless it is arbitrary, capricious or contrary to sound educational policy.

3. School closings and consolidations are difficult for any community. However, a board of education is charged with making those difficult decisions. While there may be disagreement with the basis for a school board’s decision, the decision will be affirmed unless the record does support a finding that its decision was arbitrary and capricious. [Decisions of the Commissioner of Education 16,016].

4. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.


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If you are interested in learning more about layoff procedures involving educators and other employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Friday, April 16, 2010

NYC Board of Education and the UFT agreement addressing the processing of disciplinary charges filed against an educator pursuant to §3020-a

NYC Board of Education and the UFT agreement addressing the processing of disciplinary charges filed against an educator pursuant to §3020-a
The following is the letter from NYC Department of Education Chancellor Klein to United Federation of Teachers President Michael Mulgrew concerning the processing of disciplinary charges filed against a New York City Department of Education educator pursuant to §3020-a of the Education Law.


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April 15, 2010

Michael Mulgrew, President
United Federation of Teachers
52 Broadway, 14th Floor
New York, New York 10004

Dear Mr. Mulgrew:

This letter will confirm the mutual understandings and agreements between the Board of Education of the City School District of the City of New York ("DOE") and the United Federation of Teachers ("UFT"). Nothing in this Agreement shall constitute a waiver or modification of any provision of any collective bargaining agreement, letter (including but not limited to the June 27, 2008 letter from the Chancellor to the President of the UFT) or other agreement between the DOE and the UFT except as specifically set forth herein. Nothing in this agreement shall be construed to convert non-mandatory subjects of bargaining into mandatory subjects of bargaining. As used herein, the term "CBA" shall refer to the collective bargaining agreement covering teachers and corresponding provisions of other UFT-DOE collective bargaining agreements.

The long delays that have arisen in the current process of investigating alleged acts of misconduct and adjudicating charges pursuant to Education Law §3020-a benefit neither the DOE nor the employees represented by the UFT. The DOE and the UFT are committed to ensuring that the agreements reached here will be carried out so that those delays will be ended and the process outlined in the law, the contracts between the parties, and this Agreement will be adhered to.

For purposes of this Agreement, all timelines shall be measured in calendar days, but shall not include the summer break, all recess periods and holidays.


Reassignment

Misconduct Cases (i.e., any case deemed by the DOE to deal exclusively or primarily with an employee's behavior, not his or her pedagogy): Pending investigation of possible misconduct and completion of the §3020-a hearing, the DOE may reassign an employee only to (i) a DOE administrative office to do work consistent with law (an “Administrative Office Assignment") or (ii) an administrative assignment within his or her school with a program consisting of Professional or Administrative Activities (as listed in CBA Articles 7(A)(6)(a), 7(B)(8)(a), 7(C)(g)(1), or 7(K)(3d)) other than items #1 (small group instruction), #2 (one to one tutoring), #3 (advise student activities such as clubs, teams or publications) and #7 (conflict resolution for students), which shall be scheduled consistent with CBA Article 7(B)(2)(c) regardless of the division in which the employee works ("Administrative School Assignment").

Where the Chancellor or his designee determines that it is in the best interests of the school system that an employee accused of sexual misconduct as defined in CBA Article 21(G)(6) or serious financial misconduct involving more than $1,000 not be allowed to work in an Administrative Office Assignment or an Administrative School Assignment pending the outcome of the investigation, the DOE may suspend the employee with pay rather than reassign him/her. The determination of the Chancellor or his designee to suspend an employee with pay shall be in writing. Prior to a suspension from all duties with pay, the Chancellor or his designee shall consult with the UFT President or his designee.

The DOE shall prefer charges pursuant to Education Law §3020-a[i] within 60 days of an employee being reassigned or suspended, except in cases where the reassignment or suspension was caused by (i) an allegation of sexual misconduct as defined in CBA Article 21(G)(6) that is being investigated by the Special Commissioner of Investigation for the New York City School District ("SCI"), (ii) an allegation of serious financial misconduct involving more than $1,000 that is being investigated by SCI, (iii) criminal charges pending against the employee, (iv) an allegation of serious assault that is being investigated by SCI, (v) an allegation of tampering with a witness or evidence, where the allegation of tampering is being investigated by SCI. In cases where the 60 day period does not apply, when SCI issues a report or, in the case of criminal charges, the employee notifies the DOE of the disposition of the criminal case pursuant to Chancellor's Regulation C-105, the DOE shall have 15 days to bring §3020-a charges against the employee or return the employee to his or her prior assignment. Nothing herein shall waive any limitations period for the bringing of charges pursuant to Education Law §3020-a. The Chancellor or his designee and the President of the UFT or his designee shall meet monthly, or less frequently if the UFT and DOE agree, to review the status of these cases. At the end of the first year of this Agreement, and in subsequent years if requested by the UFT, the DOE and the UFT will meet to review the issue of investigations and reassignments extending beyond 60 days and, if there has been a significant increase in the number of such investigations and reassignments, to negotiate ways to address this issue.

Except in those cases where the DOE is not required to prefer charges within 60 days, should the DOE not prefer §3020-a charges within 60 days, the employee shall be returned to his/her prior assignment. If an employee is returned to his/her prior assignment, adverse action shall not be taken against the employee solely because of the reassignment. If §3020-a charges are preferred subsequent to the expiration of the 60 day period, the employee may then again be reassigned to an Administrative Office Assignment or an Administrative School Assignment or, where the Chancellor or his designee determines that it is in the best interests of the school system that an employee accused of sexual misconduct as defined in CBA Article 21(G)(6) or serious financial misconduct involving more than $1,000 not be allowed to work in an Administrative Office Assignment or an Administrative School Assignment pending the outcome of the investigation, suspend the employee with pay rather than reassign him/her pending determination of the §3020-a charges. The determination of the Chancellor or his designee to suspend an employee with pay shall be in writing. Prior to a suspension from all duties with pay, the Chancellor or his designee shall consult with the UFT President or his designee. An employee's assignment pending investigation and/or a hearing shall not be raised at the hearing or deemed relevant in any way to the determination of the charges, any penalty issued or the adjudication of any issue in the hearing.

Incompetence Cases (i.e., any case deemed by the DOE to deal exclusively or primarily with an employee's pedagogy) –

Pending the bringing of Education Law §3020-a charges for alleged incompetence and completion of the §3020-a hearing, the DOE may reassign an employee only to an (i) administrative Office Assignment or (ii) an Administrative School Assignment. The DOE shall prefer charges pursuant to Education Law §3020-a within 10 days of an employee being reassigned. Should the DOE not prefer §3020-a charges within 10 days, the employee shall be returned to his/her prior assignment. If an employee is returned to his/her prior assignment, adverse action shall not be taken against the employee solely because of the reassignment. If §3020-a charges are preferred subsequent to the expiration of the 10 day period, the employee may then again be reassigned to an Administrative Office Assignment or an Administrative School Assignment pending determination of the §3020-a charges.

Tolling:


If the DOE gives a reassigned employee 48 hours notice of an interview which may lead to disciplinary action and the reassigned employee either fails to appear on the scheduled day or fails to notify the DOE that s/he is invoking any right he/she may have to not answer questions, the DOE shall reschedule the interview within a reasonable period of time and the time between the originally scheduled interview and the rescheduled interview shall not count towards the applicable 60-day or 10-day limits on the length of time an employee may be reassigned or suspended with pay. Where a principal schedules an interview which may lead to disciplinary action of an employee that has been given an Administrative School Assignment and 48 hours notice is not required by the CBA, Chancellor's regulations, or law, the following shall apply:

If the reassigned employee either fails to appear on the scheduled day or fails to notify the principal that s/he is invoking any right he/she may have to not answer questions, the principal shall reschedule the interview within a reasonable period of time and the time between the first scheduled interview and the rescheduled interview shall not count towards the applicable 60-day or 10-day limits on the length of time an employee may be reassigned. Nothing herein shall constitute a waiver or alteration of any right the DOE may have to compel an employee to attend an interview which may lead to disciplinary action or any right an employee may have to not answer questions.


Service of Charges


In order to make the process as efficient as possible, service of notice of the nature of the charges and the actual charges shall be consolidated and served together upon an employee along with specifications and, in incompetence cases, a bill of particulars. Nothing in this Agreement shall alter a Respondent's entitlement, if any, to a bill of particulars in misconduct cases.


Probable Cause Determinations

In addition to the enumerated acts set forth in CBA Article 21(G)(5), serious misconduct shall also include actions that would constitute a class A-I or A-II felony or any felony defined as a violent felony offense in NY Penal Law §70.02. An indictment on a class A-I or A-II felony, an indictment on any felony defined as a violent felony offense in NY Penal Law §70.02, or a felony indictment on any other conduct that constitutes serious misconduct pursuant to CBA Article 21(G)(5) shall create a rebuttable presumption of probable cause.

If a finding of probable cause was based on an indictment pursuant to CBA Article 21(G)(5), the employee shall remain off payroll pending the disposition of the criminal case. The DOE shall have 15 days after the employee notifies the DOE of the disposition of the criminal case pursuant to Chancellor's Regulation C-105 to bring Education Law §3020-a charges based on the same conduct as was at issue in the criminal case. If the DOE prefers §3020-a charges on the same conduct as was at issue in the criminal case within the 15 days, and the employee was convicted in the criminal case of any offense that constitutes serious misconduct, he/she shall remain off payroll until a decision in the §3020-a case and such §3020-a case shall be completed within the timeframes for hearings set forth in this Agreement. If the DOE prefers §3020-a charges on the same conduct as was at issue in the criminal case within the 15 days, and the employee was acquitted of all offenses that constitute serious misconduct, the DOE shall reassign the employee to an Administrative Office Assignment or an Administrative School Assignment, suspend the employee with pay (if permitted pursuant to this Agreement) or request a second probable cause hearing to continue the suspension without pay until the final outcome of the §3020-a hearing and such §3020-a case shall be completed within the timeframes for hearings set forth in this Agreement. If the DOE does not bring Education Law §3020-a charges within those 15 days, the employee shall be restored to the payroll effective as of the date the disposition of the criminal case and returned to his/her prior position.

If a finding of probable cause was based on criminal charges pursuant to CBA Article 21(G)(6), the DOE shall have 15 days after the employee notifies the DOE of the disposition of the criminal charge pursuant to Chancellor's Regulation C-105 to bring Education Law §3020-a charges based on the same conduct as was at issue in the criminal charge. If the DOE brings such a §3020-a charge, the employee shall remain off payroll until a decision in the §3020-a case and such §3020-a case shall be completed within the timeframes for hearings set forth in this Agreement. If the DOE does not bring §3020-a charges based on the same conduct as was at issue in the criminal charge within 15 days of the employee notifying the DOE of the disposition of the criminal charge pursuant to Chancellor's Regulation C-105, the employee shall be restored to the payroll effective as of the date the disposition of the criminal charge.

Nothing in this Agreement shall alter the provisions of CBA Article 21(G)(5) and (6) with respect to entitlement to back pay. The DOE agrees to meet on a bimonthly basis with the UFT to assess the status of investigations extending beyond 60 days where the employee has been suspended without pay.


Timeframe for Hearings

Within 10 - 15 days of DOE's receipt of the request for a hearing from an employee charged under Education Law §3020-a, a pre-hearing conference shall be held. Both Education Law §3020-a and the collective bargaining agreements require hearings, including closing statements, to be completed within sixty (60) days of the pre-hearing conference and a decision to be rendered within thirty (30) days of the final hearing date. The UFT and DOE agree this timeframe must be adhered to by all parties to the hearings and strictly enforced by hearing officers. Hearing officers shall establish a trial schedule at the pre-hearing conference to ensure that hearings are completed within the required statutory and contractual timeframes and ensure an equitable distribution of days between the DOE and the charged employee. Education Law §3020-a permits "limited extensions" beyond the 60 days where it is determined that "extraordinary circumstances" warrant. "Extraordinary circumstances" shall be construed narrowly by hearing officers so that the granting of "limited extensions" allowing hearings to last beyond sixty (60) days is the exception and not the rule. Pursuant to CBA Article 21, a hearing officer may be removed prior to the end of his or her one-year term only for good and sufficient cause, which may include failure to comply with this Agreement, upon mutual agreement of the UFT and DOE.

If the hearing officer determines that a necessary witness is a former student who is unavailable because he/she is residing outside of New York City or a current student who is unavailable because he/she has left New York City for an extended period of time, this shall constitute an "extraordinary circumstance." In such a case, the hearing officer shall schedule the hearing to begin or continue as soon as possible given the availability of the witness as demonstrated to the hearing officer.

Arbitrators serving on the competence panel must agree to provide seven (7) consecutive hearing dates as defined in CBA Article 21(G)(2)(a)) per month for the months of September through June and two (2) hearing dates for the months of July and August.


Discovery and Testimony

In order to comply with timelines for hearings, the UFT and DOE agree that hearings must be held in as efficient a manner as possible. Disputes relating to document production, witness lists and other procedural issues often consume hearing time and should be dealt with to the maximum extent possible in the pre-hearing conference. To that end, the UFT and DOE have already agreed in the June 27, 2008 letter from the Chancellor to President of the UFT to certain discovery procedures.

The hearing process itself can be conducted in a more efficient manner that allows for issues to be fully and fairly litigated. To accomplish this, the parties to the hearings shall adhere to the following guidelines:

1. It is the intent of the UFT and DOE that, to the extent practicable, hearing days shall be fully utilized, that hearing days not end before 5pm and the parties to the hearing have multiple witnesses ready to testify to avoid the loss of part of the day.

2. Where a hearing day is not fully used, the unused time will be counted towards the time allocated to the party that caused the delay.

3. Attorneys shall not meet with others between direct and cross examination for longer than 20 minutes, except in unusual circumstances.

4. Hearing Officers shall ensure that cross-examination is not used by either party as a dilatory tactic in order to reduce one of the parties' allotted time to present its case.

5. Evidence shall be limited to relevant matters.

6. Rebuttal shall be used only to deny some affirmative fact that the opposing party has tried to prove. During rebuttal, a party to the hearing may not offer proof to corroborate evidence that has already been presented by that party or proof tending merely to support that party's case after the opposing party has rested.

If relevant and requested at the pre-hearing conference, either party may introduce (i) relevant background evidence about a witness by affidavit from the witness; (ii) an affidavit from a doctor's office attesting to an employee's visit or non-visit on a particular date; (iii) an affidavit attesting to the date of an employee's arrest, the charge (if any) against the arrested employee, and the disposition of that charge. Such a witness may be cross-examined regarding any matter discussed in an affidavit.

If relevant, a (i) business record, (ii) attendance list from a faculty meeting, orientation and/or training session, or (iii) any human resource document submitted by a respondent (e.g., absence or sick note) may be admitted with an affidavit from a custodian of the record, without the need for live testimony from a witness to authenticate the document.

A party to the hearing or the hearing officer may request an unedited copy of the relevant
transcript if a certified transcript is not available when needed. The unavailability of a certified transcript shall not excuse adherence to the time limitations for completion of a hearing and issuance of a decision.


Non-Termination Cases

The expedited hearing process as described in CBA Article 21(G)(3) shall be utilized as set forth therein, with the following modification: If the DOE decides not to seek a penalty of more than a suspension of 4 weeks or an equivalent fine, the case shall be heard under the expedited procedures provided in CBA Article 21(G)(3), without the need for the employee to accept an offer of expedited arbitration.

A separate track of "non-termination" cases will be established with a separate panel of
additional hearing officers that exclusively hears expedited cases.


Panel of Hearing Officers


The number of hearing officers shall be as follows:

Incompetence Cases shall be heard by a panel of 14 hearing officers.

Misconduct Cases shall be heard by a panel of 25 hearing officers.

Expedited Cases shall be heard by a panel of hearing officers, the size of which will be set by the UFT and DOE as described below.

Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing officers hearing expedited cases, (ii) to discuss the appropriateness of the number of hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. If the DOE believes there is a need for more hearing officers to comply with the timelines set forth in this Agreement, it shall request that the UFT agree to increase the number of hearing officers and the UFT shall not unreasonably deny an increase.


Decisions

Both Education Law §3020-a and the collective bargaining agreements require decisions within 30 days of the completion of the hearing. Meeting with the Panel of Hearing Officers The Chancellor and the President of the UFT will personally, jointly meet with the panel of hearing officers annually to impress upon the hearing officers that both parties to this Agreement are serious about meeting the timelines in the law, the collective bargaining agreements, and this Agreement. The Chancellor and the President will urge the hearing officers to strictly control the hearings and require all parties to the hearing to conform to the timelines provided herein. They will assure the hearing officers that no hearing officer will be removed by either party to this Agreement for enforcing these rules.


Mediation of Education Law §3020-a charges


This section, "Mediation of Education Law §3020-a charges," shall apply to all employees with pending Education Law §3020-a charges on or before September 1, 2010 or being investigated on or before September 7, 2010 and the investigation results in §3020-a charges. The parties to the §3020-a hearings shall begin mediating such cases upon the signing of this Agreement.

The UFT and DOE shall agree on hearing officers on the rotational panel that shall serve as mediators one day per month (in addition to their required hearing days that month). The UFT and DOE may also jointly select mediators not currently on the panel of hearing officers.

Each case subject to mediation shall be assigned, on a rotational basis, to a mediator, other than the hearing officer assigned to decide the case.

The employee (and the employee's representative, if any) and a representative of the DOE with authority to negotiate settlement agreements (subject to final supervisory approval) shall meet with the mediator. The mediator shall work informally to assist the charged employee and the DOE in reaching, if possible, a voluntary, negotiated resolution of the Education Law §3020-a charges. The mediator shall not decide the merits of the Education Law §3020-a charges or impose a decision. Instead, the mediator shall help the charged employee and the DOE to, if possible, agree on a mutually acceptable resolution.

No mediator shall be compelled to or voluntarily disclose (including in any subsequent proceedings under §3020-a of the Education Law) any information learned during the mediation.


Backlog


Effective the first day of the 2010-2011 school year, all employees who, prior to August 31, 2010, have been (i) removed from their positions and assigned to a temporary reassignment center or (ii) charged pursuant to Education Law §3020-a shall be reassigned to an administrative Office Assignment or an Administrative School Assignment or suspended with pay (if permitted by this Agreement).

For all employees charged prior to August 31,2010, the requirement that the pre-hearing conference be scheduled within 10-15 days of the charge shall not apply, but the §3020-a hearing and decision shall be completed by December 31, 2010.

For all employees who were assigned to a TRC prior to August 31, 2010 and were not charged prior to August 31,2070, the 10 or 60 day period to charge an employee or return him/her to his/her prior assignment, shall run from September 1, 2010.

Effective September 1, 2010, the parties will implement the new timelines set forth in this Agreement, which shall apply to all cases charged after September 1, 2010.

Sincerely,

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Joel L Klein
Chancellor
New York City Department of Education



Agreed and Accepted By:

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Michael Mulgrew
President
United Federation of Teachers


[i] Probationary employees will be reassigned in the same manner as tenured employees under this Agreement, i.e., to an Administrative Office Assignment, Administrative School Assignment, or suspension with pay (if permitted by this Agreement). This Agreement shall not be construed to create tenure or Education Law §3020-a rights for an employee.


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If you are interested in learning more about disciplinary actions involving employees of New York State and its political subdivisions, please click here: http://thedisciplinebook.blogspot.com/2009/03/discipline-book.html

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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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