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Friday, December 31, 2010

Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in Review

Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in Review
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.

Professor Perry A. Zirkel, University Professor of Education and Law, Lehigh University, wrote an excellent article summarizing special education cases for 2010 as well as related A.D.A. Section 504 and other cases.

The article is a must for school administrators and attorneys practicing in this area and is available here.

Mitchell H. Rubinstein

Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer’s rules

Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer’s rules

OATH Administrative Law Judge Alessandra Zorgniotti recommended that Sheron Dixon, a New York City probation officer charged and found guilty of being arrested in violation of Department rules, using profanity towards police officers, resisting arrest, spitting upon a police officer, and failing to notify the Department of her arrest and conviction of disorderly conduct, be terminated.

Although the incident occurred while the probation officer was off-duty, Judge Zorgniotti found that Dixon was subject to disciplinary action because there was a nexus between the misconduct and her official duties.

Further, the ALJ found that the Department had proved that Dixon had been AWOL from her position.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-156.pdf

Unilateral changes in health insurance

Unilateral changes in health insurance
Civil Service Employees Association v PERB, 274 AD2d 930

Since 1990, Dutchess County employees represented by CSEA were offered a prescription drug plan for negotiating unit members enrolled in the Mohawk Valley Physicians’ Health Plan [MVP] that provided for employee co-payments of $3 for generic prescriptions and $5 for brand name drugs.*

Effective January 1998 MVP discontinued its $3/$5 co-payment rates. Employees were then provided with the lowest co-payments available from MVP: $4 for generic prescriptions and $7 for brand name drugs.

CSEA filed an improper practice charge with PERB, contending that by unilaterally increasing the co-payment to be paid by unit members enrolled in the MVP plan, the County breached its duty to negotiate with CSEA in violation of Civil Service Law Section 209-a(1)(d). PERB dismissed petitioner’s improper employer practice charge, finding that:

1. The record did not establish a past practice of providing prescription drug coverage with a co-payment at a fixed cost to employees of no more than $3 for generic prescriptions and $5 for brand name drugs; and

2. The record was equally supportive of the County’s argument that the past practice was to provide unit employees with a prescription drug plan with the lowest co-payment amounts available from MVP.

The Appellate Division sustained PERB’s determination, pointing out that CSEA had burden of proof with respect to the preliminary factual issue -- the existence of the past practice it relied upon in its improper practice claim.

Citing Essex County Local 816 v County of Essex, 31 PERB 3026, the court said that:

Where the record is susceptible to two or more equally reasonable conclusions, one of which is inconsistent with the proposition asserted, the party bearing the burden of proof on the proposition asserted cannot prevail.

In other words, if the record could be read as either supporting the existence of a past practice or supporting the absence of such a past practice, CSEA could not win on the basis of its claim that there was a past practice concerning the amount of the co-payment for prescriptions that the county was required to support.

* CSEA and the County stipulated that [f]rom its initiation in 1990 until January 1, 1998, the co-pay amounts for CSEA bargaining unit members under the MVP prescription rider were $3 and $5, the lowest available from MVP.

Failure to exhaust administrative remedy bars appeal to the courts

Failure to exhaust administrative remedy bars appeal to the courts
Matter of Sands v City of Rochester, 38 A.D.3d 1174

Sands filed an application for medical and disability benefits. When his application was rejected, Sands filed an administrative appeal from that determination. However, without determining the merits of Sands’ administrative appeal, the City of Rochester Fire Chief reconsidered Sands’ application. As a result of this reconsideration, Sands was approved for medical benefits but his application for disability benefits was disapproved.

Later Sands again applied for medical and disability benefits related to his original injury and again his application was approved only with respect to medical benefits.

Sands next filed a petition seeking a court order compelling the City to hold a hearing to determine if he was eligible for medical and disability benefits. The Appellate Division dismissed his petition, noting that Sands did not file an administrative appeal from this second determination and thus failed to exhaust his administrative remedies.

Arbitrator’s award must be confirmed if not completely irrational

Arbitrator’s award must be confirmed if not completely irrational
Matter of Rochester City School Dist. v Rochester Teachers Assn., 38 AD3d 1152

Supreme Court, Monroe County, Judge William P. Polito, confirmed an arbitration award in favor of the Rochester Teachers Association, rejecting the School District’s motion to vacate the award. The arbitrator had ruled that teachers who had attained their Masters Degree while in service would be advanced two steps on the salary scale.

The District contended that the arbitrator had exceed her authority when she concluded that under the terms of collective bargaining agreement, teachers would advance two steps on the salary scale upon obtaining their Masters Degrees.

According to the Appellate Division, the parties had stipulated the follow question in submitting the matter to arbitration:

Did the School District breach the collective bargaining agreement between it and the Association when if failed to advance incumbent teachers two steps on the salary scale after they obtained their Masters?

The Appellate Division rejected the District’s claim that the arbitrator had exceeded her authority, ruling, “the arbitrator merely resolved the stipulated issue before her.”

Accordingly, the issue before the Appellate Division was not whether the court agreed with the arbitrator’s determination. The court, citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NYPD 471, said, "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.” Rather, said the court, the issue to be resolved was whether the decision was rationale.

In addition, the court noted that in Matter of Lackawanna City School Dist. v Lackawanna Teachers Federation, 237 AD2d 945, it was held that where an arbitrator’s interpretation of the agreement is not completely irrational, the award is beyond the court’s power to review.

The Appellate Division dismissed the School District’s petition.

However, Presiding Justice Henry Scudder dissented, stating that in his view “the arbitrator exceeded her authority in disregarding the provision of the CBA requiring that any amendment to it be duly executed by both parties, and in modifying the CBA by providing that teachers obtaining a Masters Degree during the course of their employment would receive a two-step increase on the salary scale” because although the CBA “provided that teachers who obtained a Masters Degree during the course of their employment would be entitled to tuition reimbursement … the CBA, however, did not provide a two-step increase on the salary scale for teachers who obtained a Masters Degree during the course of their employment.”

Police officer’s September 11 line of duty injury claim rejected

Police officer’s September 11 line of duty injury claim rejected
Matter of Teran v Kelly, 2007 NY Slip Op 30009(U), March 1, 2007, Supreme Court, New York County, Docket Number: 0109358, Judge: Marcy S. Friedman [Not selected for inclusion in the Official Reports]

Teran, a New York City police officer, was performing routine police duties while the City was undergoing a citywide emergency as a result of the September 11, 2001 attacks on the World Trade Center. She applied for accidental disability retirement benefits claiming that she had suffered a “line-of-duty accident.”

Although Teran’s psychotherapist, Robert Driscoll, submitted a letter in which he stated that Teran was suffering symptoms of Post Traumatic Stress Disorder brought on by her duties in connection with the events of September 11, 2001, the Police Department’s expert said that “there was no [sic] evidence to support the claim of [Teran’s] psychotherapist that [Teran’s] injuries were the result of her work in connection with the events of September 11, 2001.”*

Supreme Court Justice Marcy S. Friedman concluded that Teran’s claim of entitlement to accident disability retirement was supported neither by the facts nor by any legal authority.

Further, said the court, contrary to Teran’s claim, Administrative Code 3 13-252.1, which sets out a presumption of accidental disability for police officers injured during their participation in World Trade Center rescue, recovery or clean-up efforts, does not apply to Teran, as she was not involved in any of the World Trade Center rescue, recovery or clean-up efforts at the time.

* The decision states that Teran “was sent home just after the attacks because she was pregnant. [Teran] did not witness the attacks on the World Trade Center or the collapse of the buildings, and she did not participate in any rescue or recovery work at the World Trade Center site after September 11.”

Compulsory arbitration demand

Compulsory arbitration demand
Matter of City of Poughkeepsie, 33 PERB 3029

In the course of collective bargaining the Poughkeepsie Professional Firefighters Association demanded de novo binding arbitration pursuant to PERB’s Voluntary Dispute Resolution Procedure [VDR] to resolve disagreements involving the granting and terminating benefits provided by the City of Poughkeepsie pursuant to Section 207-a of the General Municipal Law.

PERB said that demanding that the matter be submitted to VDR for such a de novo review was fatal to its being found to be a mandatory subject of collective bargaining.

PERB pointed to its ruling in the Watertown case [30 PERB 3072] in which it said that a collective bargaining demand seeking arbitration as an alternative to bring an Article 78 action to determining Section 207-a disputes was a mandatory subject of collective negotiations.

Thursday, December 30, 2010

A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed

A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed
Matter of State of New York v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 09330, Appellate Division, Third Department

David H. Jackson, a Youth Division Aide at Tryon Residential Center for Boys, was served with a notice of discipline as a result of an incident in which it was alleged that he punched a juvenile resident and pushed a coworker into a wall.

The charges filed against Jackson were presented to an arbitrator in accordance with the disciplinary arbitration procedure set out in the controlling collective bargaining agreement [CBA]. The arbitrator found Jackson guilty of the charged misconduct but, after reviewing Jackson's entire employment record, found the proposed penalty – dismissal - to be inappropriate.

Pursuant to his authority under the CBA to set an appropriate remedy, the arbitrator imposed a penalty of suspension without pay for eight months, six hours of anger management therapy and a three-month disciplinary probationary period upon Jackson's return to work.

The Division for Youth filed a petition pursuant to Article 75 of the CPLR seeking to vacate the arbitrator’s award with respect to the penalty imposed. Essentially, Youth argued that continuing Jackson’s employment as a Youth Division Aide violated the public policy of protecting the safety and welfare of the children placed in its facilities and the arbitrator should have imposed the penalty of dismissal.

Supreme Court, rather than grant Youth’s petition, granted the Civil Service Employees Association’s motion to confirm the award and Youth appealed.

Noting that a court's role in reviewing arbitration awards is limited and involves neither consideration of the merits of an arbitration award nor the substitution of the court’s judgment for that of the arbitrator simply because it believes its interpretation would be the better one, the Appellate Division sustained the lower court’s disposition of the matter.

As to Youth’s argument that the “public policy exception” should control in this instance as the protection of children in residential facilities and programs operated or certified by the Division is involved, the court said the exception would apply only in "'cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator.” The court explained that although there is undoubtedly a strong public policy to protect children and prevent the abuse of them, particularly by those entrusted with their care, for a court to vacate an arbitration award on public policy grounds, "more than a general societal concern must be at issue."

Further, the Appellate Division said that "Judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement.”

In this instance the CBA specifically granted the arbitrator "full authority, if the remedy proposed by [the Division] is found to be inappropriate, to devise an appropriate remedy and, in doing so, the arbitrator may consider the employee's entire employment record.”

In fashioning what he deemed an appropriate penalty, the arbitrator acknowledged it was the duty of employees in Jackson's position to keep the children in Youth’s care safe from harm and to refrain from inflicting any harm upon them. However, the court said that the arbitrator had credited Jackson's testimony that he had "accepted responsibility for his actions, understood them to be wrong and had volunteered to attend anger management therapy and to be placed on probation upon his return to work."

The Appellate Division, acknowledging Youth’s reluctance to continue Jackson’s employment was understandable, ruled that “the public policy cited simply does not prohibit [Jackson] from remaining employed in his position and it is not within this Court's power to ‘second-guess’ the factual or legal determinations of the arbitrator.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09330.htm
.

Seniority in a tenure area and the “40% rule”

Seniority in a tenure area and the “40% rule”
Appeal Of Kathi Gimbrone and the Board Of Education, Randolph Central School District, decisions of the Commissioner of Education, Decision No. 16,177

Kathi Gimbrone challenged various actions of the Board of Education of the Randolph Central School District to terminate her employment after being notified that her reading teacher position was abolished that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area.

After noting a number of procedural difficulties that required the dismissal of Gimbrone’s appeal, the Commissioner of Education elected to note had Gimbrone’s appeal been considered on its merit, he would have dismissed.

The Commissioner said in situations such as presented by Gimbrone’s being excessed following the abolishment of her position, “Section 30-1.13(c) of the Commissioner’s regulations [8 NYCRR §30-1.13(c)] provides that, in cases involving the abolition of a position,

if the teacher identified as having the least seniority in the tenure area affected by the abolition has tenure or is in a probationary status in additional tenure areas, the teacher shall be transferred to that tenure area in which he or she has the greatest seniority and shall be retained in such area if there is another teacher having less seniority than he or she in such other tenure area.”

Further, said the Commissioner, 8 NYCRR §30-1.1(f) defines seniority as follows:

Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.

and as used in Part 30 of the Commissioner’s regulations, substantial portion means:

40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (see 8 NYCRR §30.1[g] [emphasis in the original]).

The principal issue in this appeal is whether or not 40% or more of the total time spent by Gimbrone in the performance of her duties in the relevant school years was spent in the elementary tenure area. 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.

The Commissioner said that an examination of these provisions and the record supports the conclusion that Gimbrone failed to meet her burden of proving that she spent more than 40% of her duties in the elementary tenure area.

Accordingly, had be matter been considered on its merits, the Commissioner said that “In view of the foregoing, I cannot conclude that [the Randolph Central School] board was arbitrary or capricious in terminating Gimbrone’s employment.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16177.htm
.

An employee organization's duty of fair representation

An employee organization's duty of fair representation
Agosto v Correctional Services Benevolent Association, USDC SDNY, 107 F.Supp.2d 294

Blaca Agosto, a New York City corrections officer, filed a complaint with the deputy warden of the facility alleging that another guard had shown her sexually explicit photographs of another female corrections officer and then asked her to pose with him as well. When the deputy warden responded that he did not consider photographs offensive, she filed a complaint with the agency’s equal employment office.

After she was reprimanded by the deputy warden as a result of her filing her complaint, Agosto asked her local union representative for assistance. When her request was ignored, she asked other union officials for help.

Eventually Agosto filed a Title VII complaint against the department alleging sexual harassment. She also sued the union, contending that it violated Title VII because she was told by union officials that the union did not pursue grievances on behalf of unit employees who raised sexual harassment complaints.

US District Court Judge Denise Cote refused to dismiss Agosto’s complaint against the union, ruling that she could sue the union for breaching its duty of fair representation because it refused to assist her when she filed a sexual harassment grievance against the department.

Confidentiality of e-mail

Confidentiality of e-mail
Footnotes on E-mails

In recent years numerous requests and warnings have been included at the foot of e-mails such as “Please let us know if you are not the intended receiver of this e-mail” or “CONFIDENTIAL – this is privileged correspondence – please destroy if you are not the individual for whom it is intended,” etc.

The latest in what is fast becoming an avalanche of warnings is the following caution appearing at the bottom of an e-mail received from a North Carolina governmental agency:

All email correspondence to and from this address is subject to the North Carolina Public Records Law, which may result in monitoring and disclosure to third parties, including law enforcement.

The Circuit Court of Appeals, Second Circuit, has considered one aspect of disclosing electronic records such as e-mail.

In Pritchard, et al v County of Erie and others, 546 F.3d 222, the Second Circuit considered the question of the ability of a litigant to demand discover of a public employer’s electronic records in the course of federal litigation. In this instance, the Circuit Court held that e-mails between a government attorney and Erie County officials were protected by attorney-client privilege.

Vacating an arbitrator’s award

Vacating an arbitrator’s award
State Nurses Association v Mount Sinai Hospital, 275 AD2d 538

The Appellate Division, Third Department’s ruling in the State Nurses Association case provides a reminder of the guidelines used by the courts when considering a motion to vacate an arbitration award.

The Association attempted to confirm a disciplinary arbitration award involving one of its members.

The arbitrator ruled that although Mount Sinai had just cause to suspend Barbara Tomasino, a registered nurse, dismissal was too harsh a penalty. The arbitrator reasoned that given Tomasino’s long and distinguished employment at Mount Sinai, the lengthy suspension -- 2 1/2 years -- constituted sufficient and appropriate discipline.

The arbitrator directed the hospital to reinstate Tomasino without back pay or benefits and the 2 1/2 years she was out of service was to be deemed a suspension without pay. The hospital, however, refused to allow Tomasino to return to work and the Association brought an Article 75 action seeking to confirm the arbitrator’s award.

Mount Sinai objected and asked the court to vacate the arbitration award on the grounds that it was against public policy, irrational and in excess of the arbitrator’s authority under the CBA. After a State Supreme Court judge confirmed the arbitration award and directed Tomasino’s immediate reinstatement, with back pay and benefits from the date her suspension ended to the date of reinstatement, Mount Sinai appealed.

The Appellate Division affirmed the lower court’s ruling, noting that the limited role courts have in disposing of disputes submitted to binding arbitration pursuant to a collective bargaining agreement. Citing NYS Correctional Officers v State of New York, 94 NY2d 321, the court said:

“Courts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies.”

Although a court may vacate an award when it determines that it is in violation of a strong public policy, is irrational or exceeds a specific limitation on the arbitrator’s power, the Appellate Division said that it did not find that any of these elements applicable in this case.

On the specific issue of the claim that the penalty imposed violates public policy, the Appellate Division ruled:

“Under the particular circumstances of this case, we find that the arbitrator’s imposition of a 2 and 1/2-year suspension was not in contravention of public policy since [Mount Sinai] has not identified any statute or regulation which requires termination of employment rather than a lengthy suspension in connection with such conduct.”

Also rejected was Mount Sinai’s argument that the arbitrator’s award was irrational, particularly in view of the parties’ explicit direction that the arbitrator determine the remedy due Tomasino if it found a lack of just cause for her dismissal. The court’s conclusion with respect to the penalty imposed by the arbitrator: the remedy of reinstatement without back pay and benefits was well within the arbitrator ‘s authority.

On a related point, in Greenberg v Bear, Stearns & Co. Inc., 220 F.3d 22, the court said that “where a petitioner complains ... in good faith that an arbitration award was rendered in manifest disregard of federal law, the federal courts have jurisdiction to entertain the petition.”

Wednesday, December 29, 2010

Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the title

Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the title
Matter of Brynien v Governor's Off. of Empl. Relations, 2010 NY Slip Op 09329, Appellate Division, Third Department

Kenneth Brynien, as President of the New York State Public Employees Federation, filed out-of-title grievances with Office of Mental Health (hereinafter OMH), challenging the full-time assignments of the employees to perform duties at two OMH facilities where they were employed.

The employees hold civil service positions classified in other than “Treatment Team Leader.”

The out-of-title grievances alleged that the employees had been improperly assigned to perform and had been performing the duties of a Treatment Team Leader [TTL], Salary Grade M-1, a title designated “managerial” for the purposes of collective bargaining in violation of the relevant collective bargaining agreement.

After unsuccessful administrative appeals, Brynien initiated two CPLR Article 78 proceedings challenging the administrative determinations.

Supreme Court dismissed both petitions and the Appellate Division affirmed the lower courts “well-reasoned written decision”

The Appellate Division said "Out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2)" and, in this instance, by Article 17 of the governing collective bargaining agreement.

As to the merits of the Article 78 petitions, the court said that its review of out-of-title work grievances focuses on “whether the new duties are appropriate to [the affected employees' job] titles and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [their respective] job specifications." Further, said the court, "Judicial review of [the Governor’s Office of Employee Relations’*] determination in this context is limited to whether it is arbitrary, capricious or without any rational basis."

The Appellate Division explained that although an employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work, here the dispositive inquiry is whether the Governor’s Office of Employee Relations rationally concluded that the affected employees did not meet the minimum baseline requirements of TTLs such that the grieved duties are appropriate to their job titles and are similar in nature to, or a reasonable outgrowth of, the duties listed in their job specifications.

Holding that in its view GOER did so, the Appellate Division dismissed Brynien’s appeal.

* The Governor’s Office of Employee Relations was the ultimate administrative appellate body in this instance.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09329.htm

Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug test

Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug test
NYC Department of Sanitation v C.L.*, OATH Index #760/11

The New York City Department of Sanitation requires employees who are holders of commercial drivers' licenses to submit to random drug testing.

A sanitation worker, C.L. was charged with refusing to submit to a random test as a result of his failing to provide a sufficient urine sample within the time frame allotted by federal regulations.

C.L. then had five days from the date of the test to submit documentation to the Medical Review Officer (MRO) to show why he was unable to provide the required sample within the time period set by the federal regulation.

OATH Administrative Law Judge Ingrid Addison found that the Department had proved the refusal charge. Although Judge Addison indicated that she “was not entirely convinced by the MRO's rationale for rejecting the medical reports submitted by C.L., C.L. failed to present any expert testimony to controvert it.

Thus, the ALJ concluded, C.L.’s failure to produce sufficient urine within the time allotted constituted a refusal as charged.

In addition, Judge Addison found that the immediate follow-up steps taken by C.L. whereupon he sought an independent urine test, rebutted the inference that his urine sample would have tested positive. Accordingly she recommended that C.L. be suspended for 25 days without pay.

* C.L. held a commercial driver’s license and was subject to both Sanitation Department and federal regulations that require random drug testing. Pursuant to such federal regulations, C.L.’s name was been withheld from publication in Judge Addison's determination.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-760.pdf

Criticism of employee performance serving pursuant to a contract with a private entity

Criticism of employee performance serving pursuant to a contract with a private entity
Brackman v City of New York, Supreme Court, [Not selected for publication in the Official Reports]

If a public employee does not have tenure, he or she may be dismissed at any time, for any reason, or for no reason, provided that the termination does not otherwise constitute an unlawful act on the part of the public employer. At best, such an individual may demand, and receive, a name clearing hearing if there has been publication of the alleged disparaging remarks concerning his or her work performance.

Being successful in clearing one’s name via a name-clearing clearing hearing, however, does not entitle the individual to reinstatement to his or her former position.

The Brackman case involved a novel variation of this type of situation -- the rights of a terminated employee of an independent contractor performing work for a public entity.

The contractor, Data Industries, was to perform certain data processing related services for the City of New York. City officials were extremely critical of the work being done under the contract by Brackman, one of Data Industries’ employees.

City officials complained that Brackman was not performing satisfactorily and did not provided the services the City expected. This criticism resulted in Brackman’s dismissal from the project and from Data Industries.

Brackman sued for damages for the alleged defamation arising in the context of his work as a computer consultant for New York City’s Department of Employment. The court granted the City motion to dismiss Brackman’s petition for two reasons:

1. Brackman had signed a release in exchange for a sum of money when he was terminated by Data Industries covering “all actions, causes of action [and] suits [...] by reason of any matter, cause or thing whatsoever against Data Industries, the City of New York, the Department of Employment and its Management Information System Division;” and

2. The allegedly defamatory remarks are “quintessential expressions of opinion,” which are fully protected by the state and federal constitutions.

Justice Stallman said that all of the statements concerning Brackman’s abilities and his performance on the project use loose, figurative language, and none of the statements are objectively capable of being characterized as true or false.

Citing Williams v Varig Brazilian Airlines, 169 AD2d 434, the court said that “Disparaging remarks concerning a person’s job performance are routinely held to be constitutionally protected opinion.”

Dismissing Brackman’s petition, Justice Stallman said that as an at-will employee in the private sector there was no tort liability for wrongful or abusive discharge.

The lesson gleaned from Brackman is that as an at-will employee -- the private sector equivalent of a provisional or temporary public employee -- Brackman did not even have a right to a name clearing hearing, much less the right to sue the City or it officials for damages after being fired by the Data Industries.

Determining membership in a negotiating unit for the purposes of collective bargaining

Determining membership in a negotiating unit for the purposes of collective bargaining
Rockland County v Federation of Teachers Local 1817, 275 AD2d 413

Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law.

Is an agreement between the parties to include a particular individual in the negotiating unit if the position filled by that individual is not included in the negotiating unit enforceable?

This was one of the issues considered by the Appellate Division when Rockland County attempted to obtain a stay of arbitration of a grievance demanded by an employee of the Rockland County Community College, Patricia Harnett.

Harnett was employed by the college in a position funded by a grant. Because she was paid from grant monies, she was excluded from the negotiating unit represented by Local 1817. Therefore her employment was not covered by the collective bargaining agreement between the college and Local 1817.

According to the Local, however, Harnett and the president of the college had agreed that she should be included as a member of the negotiating unit.* This, the Local argued, meant that she was covered by the Taylor Law agreement between the college and Local 1817.

Harnett’s status became an issue when she filed a complaint under the grievance procedure set out in the collective bargaining agreement and ultimately demanded that the issue be submitted to arbitration.

Rockland objected and attempted to obtain a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. A State Supreme Court justice ruled that Harnett’s grievance had to be submitted to arbitration.

The Appellate Division reversed, rejecting Local 1817’s argument that Harnett was covered by the collective bargaining agreement as a result of a settlement entered into by Harnett and the president of Rockland Community College.

The Appellate Division characterized the settlement as ultra vires since it had not been ratified by the college’s board of trustees.

In commercial law, the term ultra vires is used to describe acts beyond the scope of the power of a corporation. Here the Appellate Division used the term to describe the absence of authority on the part of the college president to agree to include Harnett within the negotiating unit without specific approval by the college’s board of trustees.

This suggests that the Appellate Division would have been less troubled by Local 1817’s argument had the college trustees ratified the agreement between the college president and Harnett.

In the alternative, assume that the agreement between the president and Harnett provided that the terms and conditions of her employment were to be determined by the collective bargaining contract instead of deeming her to be a member of the collective bargaining unit, i.e., the provisions of the collective bargaining agreement were incorporated by reference into her contract of employment by the college. If such a contract of employment was duly ratified by the appointing authority, Harnett might have been able to sue for breach of contract when her demand for arbitration was rejected by the college.

* Presumably Harnett’s position would have been included in the negotiating unit but for the source of funding for the item.

New York City Civil Service Commission’s ruling applicant qualified controls

New York City Civil Service Commission’s ruling applicant qualified controls
City of New York v Civil Service Commission, Supreme Court, New York County, Docket Number: 0401706 [Not selected for publication in the Official Reports]

The New York Policy Department (NYPD) challenged a determination by the New York City Civil Service Commission holding that Hope Mahoney was qualified for appointment to the position of police officer with the Department.

Having passed the written test, Mahoney was also required to submit to a psychological examination to determine her fitness for duty as a police officer. After conducting an evaluation, the Police Department’s psychologist concluded that Mahoney was “psychologically unsuited for police work.”

Mahoney then saw her own her medical expert, Dr. Richard E. Ovens. Ovens conducted his own psychological evaluation of Mahoney. Dr. Ovens’ evaluation described Mahoney as “possess[ing] the requisite intellectual abilities, emotional resources and coping skills to meet the demands and stresses associated with the unique duties of a . . . police officer.”

In response to this, the Police Department’s expert, Dr. Arko, reviewed Dr. Ovens’ evaluation. Dr. Arko’s conclusion: Mahoney should be rejected for appointment to the position of police officer based on “poor judgment and impulse control” as evidenced by her two job terminations, and her driving record. NYPD forwarded Dr. Arko’s report to the New York City Civil Service Commission (CSC).

After reviewing all the records submitted to it, the CSC decided that a hearing was appropriate in order to resolve the factual issues related to Mahoney’s disqualification. Ultimately the CSC issued a decision reversing the NYPD’s disqualification of Mahoney, and advised NYPD that
“having reviewed the entire record and considering the arguments and testimony presented at the hearing, we conclude as follows. . . Having heard from both experts, we find that Dr. Ovens [sic] evaluation and assessment of the appellant was accurate and therefore more credible.”

NYPD filed an Article 78 petition challenged the decision of the CSC, contending that CSC’s determination was irrational in crediting the testimony of Dr. Oven’s over the testimony of Dr. Chiu-Palmer, and the other medical experts employed by NYPD.

According to the decision, “Dr. Ovens conducted a more comprehensive evaluation of Mahoney than Chiu-Palmer,” and that CSC rationally credited Dr. Ovens’ testimony over that of Chiu Palmer’s “based on his stronger educational background in psychology and his thirty years experience as a police officer.”

The court pointed out that the CSC is empowered by Section 813(d)* of the New York City Charter “to hear and decide appeals of petitioners’ determinations as to employment eligibility.” However, said the court, although CSC’s determinations of such appeals are subject to judicial review under Article 78, in such instances review by the court “is limited to the question of whether the decision of the administrative agency was arbitrary or capricious or irrational.”

In addition, citing Smith v. City of New York, 228 AD2d 381, leave to appeal denied, 89 NY2d 806, the court commented that “it has been held that “wide discretion is afforded to civil service commissions in determining fitness of candidates. The exercise of that discretion is to be sustained unless it has been clearly abused.”

Accordingly, said the court, “Under this standard, there is no basis for overturning the CSC determination that Mahoney is qualified to be a police officer. Specifically, it cannot be said that the CSC’s decision to credit the opinion of Dr. Ovens over that of Chiu-Palmer was irrational in light of Ovens’ substantial qualifications, including his doctorate in clinical psychology, his thirty years of experience as a police officer, and his practice which involves the treatment of traumatized police officers.”

NYPD’s appeal was dismissed and the Civil Service Commission’s determination upheld.

* The NY City Charter provides that: the civil service commission shall have the power to hear and determine appeals by any person aggrieved by any action or determination of the commissioner. . . and may affirm, modify or reverse such action or determination when there exists a rational basis in the record to support the decision.

Tuesday, December 28, 2010

Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas

Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas

Personnel administrators and other professionals serving with State and municipal departments and agencies interested in exchanging ideas and in discussing selected court and administrative decisions and related matters affecting public employers and employees in New York State are invited to become members of iZoca* and join the Public Personnel Administrators group.

The initial PPA posting is at: http://www.izoca.com/groups/public-personnel-administrators/discussions/33670

iZoca allows members to connect with both their communities and their groups. The platform provides members an opportuntiy to share information and exchange ideas.

In addition, iZoca provides powerful group features that help keep you informed and engaged with all your group activities. Once your free account is created, you will be able to join Public Personnel Administrators and other groups, or even start your own membership group in addition to those already available.

To become a member of the Public Personnel Administrators group, go to:

http://www.izoca.com/join/groups/public-personnel-administrators

* The name iZoca is derived from the Spanish word “zocalo” which is referred to as a square or plaza in Mexico where people congregate. iZoca was founded in 2007 and is located in New York's Tech Valley Region.

Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character

Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character
Matter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third Department

Randy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character.

The hearing panel determined that Mudge “lacked the good moral character necessary to be a teacher in New York State” and recommended suspension of his certificates for one year.

Mudge appealed and although the Commissioner* “modified the findings of the panel," she sustained the one-year suspension of his certificates. Mudge then filed a petition in Supreme Court challenging the Commissioner’s decision.

The Appellate Division said that its review of the Commissioner’s ruling “in this context is limited to whether it is arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion.”**

According to the decision by the Appellate Division, Mudge admitted that he had had sexual intercourse with two former students. Finding a “pattern of behavior in affording the girls preferential treatment while they were students, including the pre-graduation trips to “Mets games,” [the Commissioner] concluded that Mudge had groomed them for a sexual relationship while they were students and then, shortly after they graduated, exploited the relationships that he had cultivated.”

The Appellate Division rejected Mudge’s argument that the Commissioner’s conclusion regarding “grooming of the students prior to graduation is irrational.”

Although Mudge argued that each of the various factors considered by the Commissioner is innocent by itself, and his character is unassailable, the court said that it could not agree. It said that “Given the evidence of [Mudge’s] pattern of behavior with both girls, [the Commissioner’s] determination that [Mudge] was engaged in grooming and that he lacks the requisite moral character to be a teacher in this state is supported by a rational basis.

The Appellate Division then confirmed the Commissioner’s determination and dismissed Mudge’s appeal.

* Interim Commissioner of Education Carole F. Huxley

** The Appellate Division noted that Supreme Court’s transfer of Mudge’s appeal to it “was improper because the appropriate standard of review is not whether the determination is supported by substantial evidence,” it said that it would retain the proceeding and resolve the issues “in the interest of judicial economy.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09311.htm

Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy

Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy
Matter of O'Connor v New York State Civ. Serv. Commn., 2010 NY Slip Op 09324, Appellate Division, Third Department,

After posting a vacancy for the position of Supervising Hearing Officer [SHO], the Office of Temporary Disability and Assistance [OTDA] elected to reinstate Frank Gottlieb, a recently retired former SHO at OTDA. Gottlieb had submitted a request to be reinstated to the position of SHO.

Vincent J. O'Connor, a hearing officer, was one of about a dozen applicants, including Gottlieb, being considered for the position. After Gottlieb was reinstated to the position, O’Connor asked the Department of Civil Service to revoke Gottlieb's appointment. The Department denied O’Connor’s application.

O’Connor then appealed the Department’s decision to the State Civil Service Commission. The Commission affirmed the Department's determination and O’Connor filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Commission’s decision.

Supreme Court dismissed O’Connor’s petition, which action the Appellate Division affirmed.

The court said that O’Connor contended that “OTDA has acted improperly for many years because, instead of using competitive examinations, individuals are placed in SHO positions by the transfer method authorized in Civil Service Law §52(6).”*

However, the Appellate Division observed, that issue was not properly before us in this appeal as the appointment to which O’Connor had objected was not the result of a “transfer” but rather the reinstatement of a former, albeit, retired former SHO.** The decision points out that 4 NYCRR 5.4 permits the "[r]einstatement within one year, without examination” of a former employee.

After finding that the Commission did not act in an arbitrary or capricious manner in rejecting O’Connor’s request to have Gottlieb's reinstatement revoked, the court noted that the issue, in fact, was moot as Gottlieb “reportedly left the SHO position during the time this appeal was pending.”

* The terms "transfer," “reassignment” and “reinstatement” are unique personnel transaction in the public service. The term “transfer” is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel changes by the appointing authority within the same department or agency or within the jurisdiction of the same appointing authority. Except where there is a "transfer of function," transfers required the approval of both appointing authorities and the consent of the individual to be transferred [see 70.1, Civil Service Law] while a "reassignment" may be made without the agreement or consent of the employee concerned absent a provision in a collective bargaining agreement to the contrary. “Reinstatement” involves the reemployment of an individual who, after leaving public service, seeks to return to his or her former, or similar, position with his or her seniority as otherwise provided by law for such purposes layoff and eligibly for fringe certain benefits in his or her new position.

** Although of significant relevance, the decision does not address the impact of Civil Service Law §150 nor Retirement and Social Security Law §210 et seq. insofar as the compensation to be paid Gottlieb upon his reinstatement is concerned.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09324.htm

Statute of limitations - duty of fair representation

Statute of limitations - duty of fair representation
Matter of Mankowski, 33 PERB 3032

Daniel M. Mankowski charged that the Public Employees Federation [PEF] violated it duty of fair representation when it failed to represent him in certain grievances he filed against his former employer, the State of New York.

PERB affirmed its administrative law judge’s dismissal of Mankowski’s petition as untimely, noting that he had filed it more than four months after his last contact with PEF.

Determining the minimum period of probation

Determining the minimum period of probation
Challandes v Shew, 275 A.D.2d 369


In most cases a permanent appointment to a position in the classified service is subject to a probationary period. Typically the probationary period is set in terms of a minimum period and a maximum period.*

Also, if a probationer enters military duty within the meaning of Section 243 of the Military Law, the time of his or her absence shall be credited as satisfactory service during such probationary term.

The basic rule: unless otherwise provided by a collective bargaining agreement, a probationer may be dismissed at any time, for any reason [other than for an unlawful or discriminatory purpose], or for no reason, after completing his or her minimum probationary period and prior to the end of his or her maximum period of probation.

In other words, a probationary employee may be terminated without a statement of any reason for the termination and without a per-termination hearing, provided the dismissal (1) was not made in bad faith; (2) did not constitute a violation of statutory or decisional law; and (3) was not based on any unconstitutional or illegal reasons.

If the appointing authority wishes to dismiss a probationer before he or she completes his or her minimum probationary period** formal disciplinary action must be initiated. The decision by the Appellate Division in the Challandes case demonstrates this.

The Village of Ossining appointed Joyce Challandes as a permanent Data Entry Operator, subject to her satisfactorily completing her probationary period. A few days later the Village Manager revoked the appointment.

Challandes sued, claiming that her termination was unlawful. A State Supreme Court justice agreed and directed Ossining to reinstate her to the position with all back salary and the other benefits that she would have received had her appointment not been revoked.

The Village appealed, only to have the lower court’s determination affirmed by the Appellate Division.

Under Westchester County’s Civil Service Rule 11.1(a)(1), said the court, Challandes had to serve a minimum of 12 weeks before she could be removed at the discretion of the appointing authority. Any earlier termination would have to be based on her having to be found guilty of charges of incompetence or misconduct pursuant to Civil Service Law Section 75. As Challandes was not served with disciplinary charges and no Section 75 hearing was conducted, the court ruled that Challandes’ removal was unlawful.

It is well settled that if a probationary employee is continued in service beyond the last day of the maximum probationary period and was not given a timely notice that he or she was to terminated at the end the probationary period or that his or her probationary period has been extended beyond the maximum period, the employee becomes tenured in the position and thereafter may only be removed for cause after notice and hearing. This is usually referred to as attaining “tenure by estoppel.”

Although tenure by estoppel is most frequently encounter in connection with claims of tenure advanced by probationary teachers who have been terminated, it is possible for employees holding positions in the competitive class to attain tenure by estoppel.

For example, if a provisional employee in a competitive class position becomes eligible for permanent appointment to the position and he or she is continued in the position as a provisional employee, he or she is afforded permanent appointment to the position. The leading case on this point: Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611.

Suppose, however, a provision employee is given his or her notice of termination on the last day of the employee’s probationary period and the employee is continued on the payroll beyond the last day his or her probationary period. This, courts have ruled, constitutes a timely notice of termination as the last day of service need not coincide with the last day of the probationary period.

As the Appellate Division held in Mendez v Valenti, 101 AD2d 612, so long as the termination is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

Stated another way, the appointing authority has until the last day of the individual’s probationary period to decide whether to retain the employee, extend the employee’s probationary period, or to terminate the employee from his or her position. Although the effective of the employee’s removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before the end of his or her probationary period.

* An example of a permanent appointment in the classified service that is not subject to a probationary period: reinstatement from a preferred list. However, an individual who was laid off before completing his or her probationary period is required to complete his or her term of probation upon reinstatement from the preferred list.

** If no minimum probationary period is specified and the appointment is simply made subject to the satisfactory completion of the probationary period the only window of opportunity for termination without initiating disciplinary action occurs at the end of the probationary period.

Applicant rejected after being found overqualified for appointment to the position

Applicant rejected after being found overqualified for appointment to the position
City of New London v Harrigan, CA2*

May an individual be so overqualified for the position so as to justify his or her being rejected for an appointment to the title? This was the issue raised in the Harrigan, a case decided by the US Circuit Court of Appeals, Second Circuit on August 23, 2000.

In March 1996 Robert Jordan and some 500 other candidates for appointment as police officers with various municipal police departments in Connecticut were screened using the Wonderlic Personnel Test and Scholastic Level Exam [WPT]. The test is used to measure cognitive ability.

Recommended scores for various professions are listed in the WPT manual and it notes that overqualified candidates may soon become bored with unchallenging work and quit, and that [s]imply hiring the highest scoring employee can be self-defeating. Jordan scored a 33 on the WPT, above the median for any listed occupation, and well over the normative median of 21 suggested for a police patrol officer.

Jordan then learned that he would not be interviewed by the City of New London because he didn’t fit the profile. New London explained that Jordan had scored a 33 on the WPT, and that to prevent frequent job turnover caused by hiring overqualified applicants New London only interviewed candidates who scored between 20 and 27.

Jordan sued, contending that the City had denied him equal protection in violation of the Fourteenth Amendment and Article 4, Section 20, of the Connecticut Constitution.

A federal district court judge granted the City’s motion for summary judgment. The Second Circuit affirmed the lower court’s ruling, concluding that:

New London’s use of an upper cut did not violate the equal protection clause since [A] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification ... concluding that even absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed - on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC - that there was such a connection.

* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.

Monday, December 27, 2010

Videotape used in disciplinary hearing to rebut employee’s testimony

Videotape used in disciplinary hearing to rebut employee’s testimony
NYC Department of Corrections v Saint-Phard, OATH Index #172/11

OATH Administrative Law Judge Faye Lewis found that Stanley Saint-Phard, a New York City correction officer, used impermissible force by dispersing a chemical agent in an inmate's face and placing him in a chokehold.

Saint-Phard contended that the use of such force was justified because the inmate made an aggressive motion towards him after disobeying an order to return to his cell.

A videotape introduced into evidence, however, showed that before Saint-Phard deployed the spray, the inmate had turned around and placed his hands behind his back. Further, the video showed that the officer was less than three feet from the inmate when he sprayed him, in violation of a directive prohibiting the use of the spray from close range.

ALJ Lewis also found that Saint-Phard used an impermissible chokehold on the inmate during the ensuing takedown of the inmate. A 60-day suspension was the recommended penalty.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-172.pdf

Dissatisfaction with an employer's drug testing procedure is not “good cause” for resigning for the purposes of claiming unemployment benefits

Dissatisfaction with an employer's drug testing procedure is not “good cause” for resigning for the purposes of claiming unemployment benefits
Matter of French v Town of Lyndon, 2010 NY Slip Op 09451, Decided on December 23, 2010, Appellate Division, Third Department

Kevin M. French, a driver/operator for the Town of Lyndon. He advised Lyndon that he believed that drug testing of drivers was being performed incorrectly by the company Lyndon was then using to perform the tests. This led to Lyndon having the tests administered by a different company.

Sometime later French overheard a Town official telling his immediate supervisor that he was scheduled for a random drug test. French failed to report for work the next day and when contacted, said that “he had quit and did not wish to discuss the matter further.”

French filed for unemployment insurance benefit. The State Department of Labor issued an initial determination disqualifying him for benefits after finding that he voluntarily separated from employment without good cause.

The Appellate Division affirmed the Department’s determination, holding that “Whether a claimant has voluntarily separated from employment without good cause is an issue of fact to be resolved by the Board, and its decision will not be disturbed when supported by substantial evidence.”

As to “good cause,” the court noted that “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09451.htm

Concerning the employee’s duty to mitigate damages following his or her termination

Concerning the employee’s duty to mitigate damages following his or her termination
Rongiger v McCall, USDC, SDNY, [unpublished]*

The Rongiger case discusses a somewhat infrequently encountered aspect in litigation involving alleged violations of an employees civil rights: the duty of a dismissed employee to mitigate damages and the proof an employer must produce to show that the employee failed to mitigate, or attempt to mitigate, his or her damages following the termination.

George P. Rongiger sued then State Comptroller H. Carl McCall for damages, claiming that McCall had terminated him in retaliation for his exercising his right to free speech in violation of his civil rights. One of the significant major issues in this litigation concerned the question an individual’s duty to mitigate damages.

Rongiger, who had been serving in the Office of the State Deputy Comptroller for the City of New York, a division of the Office of the State Comptroller, alleged that he was terminated after making politically embarrassing statements in deposition testimony concerning correspondence between McCall and then-Mayor David Dinkins in connection with New York City’s efforts to prevent a downgrading of its bond rating.

Did Rongiger have a duty to mitigate damages by seeking substitute employment following his dismissal? In a word, yes! As Federal District Court Justice Sweet noted, citing Dailey v Societe Generale, 108 F.3d 451, an employee who has been subject to discriminatory discharge is required to mitigate his damages.

In Greenway v Buffalo Hilton Hotel, 143 F.3d 47, the Second Circuit explained that this duty means that the discharged employee ‘must use reasonable diligence in finding other suitable employment,’ which need not be comparable to [his] previous positions.

Since the employer charged with discrimination is required to prove any failure on the part of the employee to mitigate damages, McCall retained Dr. Charles L. Sodikoff as an expert on the issue of mitigation and asked him to prepare a report as to his findings.

Sodikoff’s report set out his opinion concerning the length of time it should have taken Rongiger to find a comparably paying job or to build a profitable consulting practice, and the reasonableness of Rongiger’s job search.

Sodikoff concluded that Rongiger should have obtained comparable work within six to ten months of his termination and that he should have built a consulting practice sufficient to replace his compensation in 1994 within two years of his termination. Rongiger challenged the admission of Sodikoff’s report.

After noting that such expert testimony was relevant, Justice Sweet discussed the methods used by Sodikoff in preparing his report and his conclusion. Based on his evaluation of the procedures used by Sodikoff Justice Sweet granted part of Rongiger’s motion to exclude expert testimony.

In contrast, there is no duty on the part of individual who has been terminated after being found guilty following disciplinary action taken pursuant to Section 75 of the Civil Service Law to mitigate his or her damages.

Civil Service Law Sections 76 and 77, which, respectively, deal with reinstatement by a Civil Service Commission or a court following a successful appeal of as Section 75 dismissal and the annulment of the termination, provide that an employee who is reinstated is to receive the salary or compensation he or she would have been entitled by law to have received in his or her position for the period of removal including any prior period of suspension without pay, less the amount of any unemployment insurance benefits he may have received during such period.*

Thus mitigation is not a factor as even if the individual obtains employment after being discharged, any monies earned thereby would not be considered in determining the amount of compensation to be paid as back salary upon reinstatement -- only unemployment insurance benefits are to be considered in determining the back salary due upon reinstatement.

* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.

** Sections 76 and 77 of the Civil Service Law originally provided for an adjustment in consideration of earnings received from other sources, thereby implying a duty to mitigate damages. Chapter 710 of the Law of 1984 deleted the phrase compensation which he may have earned in any other employment or occupation.... from the law.

Overturning disability retirement decisions

Overturning disability retirement decisions
Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458

The Guidal decision by the Appellate Division demonstrates the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his or her application for accidental disability retirement benefits.

William Guidal, a New York City firefighter, applied for accidental disability retirement benefits. The Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits.

Guidal’s appeal was rejected by the Appellate Division. The court observed that:

Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury.

The test applied in such cases by the courts: the courts may intervene only where it finds that circumstances allow but one inference with respect to the cause of the disability. In such situations the court may determine the conclusion to be drawn from the inference under the circumstances. In other words, it may decide whether or not the Trustee’s inference and conclusion was correct.

In contrast, where there is a difference of expert medical opinion as to the cause of the disability, the Trustees’ determination must be sustained if supported by substantial evidence.

Accordingly, if there is any credible evidence that the disability was not caused by service-related injuries supporting the Trustee’s determination, that determination must stand.*

In Guidal’s situation, said the court, Guidal failed to establish, as a matter of law, a causal connection between his line-of-duty accidents and his disabling condition since the medical evidence permitted more than one inference to be drawn as to the cause of his disabling condition.

Applying the single inference test, the Appellate Division held that there was no basis to disturb the Trustee’s decision.

* The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where his determination concerning approving an application for accidental or duty-related disability benefits is at issue.

Past practice - paying for health insurance premiums

Past practice - paying for health insurance premiums
Matter of Ulster County Local 856, 33 PERB 4584

Local 856 filed an improper practice charge with PERB contending that the Town of Shawangunk violated Section 209-a.1(d) of the Civil Service Law when it unilaterally changed the long-standing practice of paying health insurance premiums for unit members after their retirement.

Notwithstanding the Local’s allegation, PERB Administrative Law Judge Gordon R. Mayo found that only two employees who would have been included within the existing negotiating unit had retired -- one in 1978 and the other in 1980 -- were provided with fully paid health insurance by the Town upon their retirement.

Both employees, however, retired prior Local 856 being recognized as the collective bargaining agent for the unit in 1984. Also noted was the fact that no unit member has retired since 1984. In contrast, when a Town employee who was not in the negotiating unit retired in 1992, the town board adopted a resolution allowing this retiree to purchase health insurance on the Town’s policy at his own expense.

Essentially the Local argued that a past practice existed while the Town disagreed. In support of its position it contended that in 1997 it suggested to a CSEA Labor Relations specialist that the topic should be discussed during the next round of collective bargaining by the parties.

Based on this record, Mayo ruled that “[b]ecause of the equivocal nature of the evidence contained within the stipulation of facts, I cannot find that a past practice ever existed within the Town regarding retiree health insurance.”

Friday, December 24, 2010

Governor Paterson issues pardons to the benefit of 24 individuals subject to deportation as a result of a criminal conviction in the past

Governor Paterson issues pardons to the benefit of 24 individuals subject to deportation as a result of a criminal conviction in the past
Source: Office of the Governor

On December 24, 2010,Governor David A. Paterson today announced that he has issued pardons to the 24 individuals listed below otherwise subject to deportation as a result of prior criminal convictions. The Governor said:

"Over the course of my Administration's review of more than 1,100 pardon applications it became abundantly clear that the Federal government's immigration laws are often excessively harsh and in need of modernization," Governor Paterson said. "The individuals pardoned today committed past offenses but paid their debt to society. They now make positive contributions to our State and nation, and I believe they should be protected from inflexible and misguided immigration statutes."

In May 2010, Governor Paterson created a special Immigration Pardon Panel, comprised of members of the his staff and his counsel's office, to collect information and provide recommendations on pardons for deserving individuals to assist them in avoiding deportation.

The initiative was designed to address and counter aspects of the immigration laws that may result in inflexible and unjust decisions to remove legal immigrants from the United States, often tearing them away from their children and spouses. In many of these cases, the individual's efforts toward rehabilitation, their years of living a law-abiding life in the community and their positive contributions to society have not been considered by Immigration and Customs Enforcement (ICE) in the decision to deport.

One harshness of the Federal law results from retroactive changes made in the mid-1990s, whereby crimes that did not previously carry the consequence of deportation were made deportable. In many other cases, individuals previously had pled guilty without being aware that their plea might subject them to mandatory deportation. As a result, many individuals who were convicted many years ago are now facing deportation, often after they apply for citizenship or seek to renew their permanent resident status. Additionally, individuals may face deportation to a country they left as a child, where they now have no relatives, may not speak the language and have no place to live or means to support themselves.

"That our Federal government does not credit rehabilitation, nor account for human suffering is antithetical to the ideals this country represents. With these pardons, I have selected cases that exemplify the values of New York State and any civilized society: atonement, forgiveness, compassion, and the need to achieve justice, and not simply strict adherence to unjust statutes. I will not turn my back on New Yorkers who enrich our lives and care for those who suffer," Governor Paterson concluded.

The individuals who received pardons from the Governor include:

• Tressan Allen, in 2002, was convicted of Attempted Criminal Possession of Marijuana in the Fourth Degree, a class B misdemeanor. She is married to an active duty U.S. Army Specialist who is currently stationed in Germany and will be deployed for his second tour of duty in Afghanistan in February.

• Luz Marina Camacho was convicted of drug sale and possession crimes in 1983. She was sentenced to 15 years to life in prison, but Governor Mario Cuomo commuted her sentence in 1991. Since her release, U.S. Immigration and Customs Enforcement has permitted her to remain in the United States under a "deferred action," which will expire in February 2011.

• Ian Carter pled guilty to Attempted Criminal Sale of Stolen Property in the Third Degree in 1994 and was sentenced to five years on probation. He has demonstrated his rehabilitation by receiving an Associates and a Bachelors Degree, maintaining gainful employment and serving his community by participating in charitable activities. A pardon will remove the basis for his deportation.

• Edouard Colas was brought to the United States from Haiti as a lawful permanent resident at age 10. He was convicted in 1997 of Attempted Burglary in the Third Degree and sentenced to five years on probation. He has maintained gainful employment and is married to a United States citizen with whom he has two young sons. The pardon will remove the basis for his deportation.

• Lucila Cruz has been a lawful permanent resident of the United States since 1992. She was convicted of Attempted Grand Larceny in the Third Degree in 1996, and was sentenced to a conditional discharge. Many supporters, including her employer, have commended her for the care she provides to her severely disabled son. The pardon should remove all grounds for her deportation.

• Vijay Dandapani was pardoned for a 1993 conviction of first-degree grand larceny, for which he served a one-to three year sentence. He cooperated with the prosecution, including providing essential testimony at the trial of his accomplices. A pardon will prevent his deportation, allowing him to remain in the United States with his wife, who is a citizen, and two children.

• Neil Drew has been a lawful permanent resident of the United States since he was 10 years old. He was convicted of third-degree grand larceny in 1998, for which he served a one-to-three year sentence and made restitution. He has earned a Bachelors Degree from the School of Visual Arts in New York City and has been gainfully employed as a graphic designer. His two brothers serve in the U.S. military. The pardon should fully resolve his immigration problems.

• Carol Hamilton, now a Reverend was convicted of two class A misdemeanors of Criminal Possession of Marijuana in the Fourth Degree in 1995 and 1986, for which he was sentenced to a conditional discharge and a fine, respectively. He has now earned a Bachelors and a Masters Degree and works as an ordained minister, counseling youth, ex-offenders and people living with HIV/AIDS. A pardon should assist him in fighting his deportation, allowing him to remain in the United States with his wife and three young children.

• Olusegun Ola Johnson, a lawful permanent resident since 1991, was convicted of three counts of second-degree forgery and one count of third-degree grand larceny in 1990, for which he was sentenced to five years of probation. He has had no further contacts with the criminal justice system, and is now an ordained deacon, who is married to a citizen and is the father of four children.

• Walter Mills, now 60-years-old, was convicted of attempted possession of a firearm in 1973 and was sentenced to a conditional discharge. In the 37 years since this conviction, he has had no other contact with the criminal justice system. He now works full time and cares for his 82-year-old mother. The pardon will be considered a favorable discretionary factor if he is ever placed in deportation proceedings.

• Pedro Montesquieu was convicted in 2000 of attempted Criminal Sale of a Controlled Substance in the Third degree and was sentenced to five years on probation. Montesquieu runs his own business, and is the father of three young children, two of whom suffer from severe and life-threatening illnesses. The pardon should enable Montesquieu to re-open his immigration proceedings and would make him eligible to seek cancellation of removal but because he was convicted of a controlled substance offense, it will not guarantee that he will be permitted to remain in the United States.

Governor Paterson, commenting on this particular case, said: "At a later date, we may have a clearer idea of the impact that a pardon will have for persons with controlled substance convictions who are fighting deportation, but I am granting this pardon for humanitarian reasons because of the sorrowful multiple tragedies that may beset this family."

• Francisco Moya de Leon, who has been a lawful permanent resident of the United States since 1988, was convicted in 1994, of fourth-degree criminal possession of a controlled substance for which he served five years on probation. He is married to a citizen, and his son serves as a police officer in New York City. Moya de Leon is now facing removal as an inadmissible alien because he left the country three times after he was convicted, despite the fact that he has been a lawful permanent resident for 22 years and was re-admitted to the United States after each trip outside the country. Governor Paterson granted the pardon to assist Moya de Leon in overcoming the unfairness of the U.S. Customs and Immigration Services decision.

• Frances Novoa, who is now 63 years old, is being threatened with removal for attempted petit larceny convictions from 1984 and 1974, for which she was sentenced to a conditional discharge. Novoa is gainfully employed, and provides stability to one of her daughters and three of her grandchildren, who would suffer a serious disruption of their lives and extreme emotional harm if she were to be deported.

• Angela Parker was brought to the United States at age four. When her father was killed when Parker was 11 years old she was kicked out of her home and, along with her 16-year-old sister, forced to live on the streets and endure years of abuse and violence. During these tumultuous years, she was convicted, in 1989, of two counts of third-degree criminal sale of a controlled substance and one count of first-degree assault and was sentenced to 1½ to 4½ years in State prison. For the last 17 years, she has raised her oldest son, who served in the U.S. Army, and is now desperate to remain in the United States so that she may help her two younger children have a better life than she had.

• Juan P. Ramirez, who was then the owner of a bodega, was convicted in 2003 of two misdemeanors. Since these convictions, he has been gainfully employed, supporting his wife and children. He has been an active member of his community who has devoted himself to helping others. The pardon should remove all grounds of deportability and allow him to have his green card restored.

• Laurenton Rhodon has been a lawful permanent resident of the United States for twenty years, but now faces removal as a result of a 1995 conviction for Attempted Criminal Possession of a Controlled Substance in the Third Degree, for which he was sentenced to five years probation. Rhodon has sole custody of his 12-year-old daughter. The pardon will make him eligible to seek cancellation of removal, but because he was convicted of a controlled substance offense, there is no guarantee that he will be permitted to remain in the United States.

• Fredy C. Rojas, a veteran of the U.S. Army and after having served our country for 8 years, is deportable as a result of a single misdemeanor drug possession conviction in 1995. Since that time, he has completed drug treatment and, together with his wife, who is a citizen, he is raising his 7-year-old daughter and working as a truck driver.

• Jose Sanchez was granted lawful permanent resident status in 1998, even though he disclosed to immigration officials that he had been convicted in 1989 of fifth-degree criminal possession of a controlled substance and sentenced to five years on probation. Eleven years later, after Sanchez has built a stable life in New York, Immigration and Customs Enforcement is seeking to deport him for that same conviction.

• Melbourne Sinclair has been a lawful permanent resident of the United States since 1986. He was convicted in 1990 of the misdemeanor offense of fourth-degree criminal sale of marijuana and sentenced to a fine. As many permanent residents do, he applied for naturalization, unaware that he was ineligible as a result of his conviction, and he now faces the likelihood of being placed in deportation proceedings. If removed, he would be torn from his wife, who is a citizen, and sons, who would likely be unable to continue their college attendance without their father's support and assistance. If he is placed in proceedings, the pardon will make Sinclair eligible seek cancellation of removal, but will not guarantee that he will be permitted to remain in the United States.

• Eligio Valerio has resided in the United States since 1982, but was recently the subject of immigration proceedings based on a 1986 conviction for fifth-degree criminal sale of a controlled substance and a 1988 conviction for fourth-degree criminal possession of a weapon. In the 22 years since his conviction, Valerio has been gainfully employed, has raised a family and has had no further contact with the criminal justice system. The pardon will make him eligible for cancellation of removal.

Included in the group pardoned by Governor Paterson are four individuals who, due to retroactive changes to the immigration laws, would have been subject to deportation.

These individuals were all convicted of offenses that did not initially carry the penalty of deportation, though that was changed due to subsequent legislation. Those pardoned include:

• Salvador Gonzalez was convicted of first-degree assault in 1975, for which he served a one to three year sentence in State prison. He has had no involvement with the criminal justice system in the 35-years since his conviction, and is now a small-business owner who takes care of his elderly parents and his young son. Gonzalez has been hampered in his efforts to prevent his removal, because retroactively-effective changes in the immigration laws in the 1990s made him ineligible for cancellation of removal – a form of relief that was available to him at the time of his conviction.

• Engels R. Guzman, a lawful permanent resident of the United States since age 15, was convicted of second-degree robbery in 1990, when he was 16 years old. After his release from prison, he worked in the family supermarket business, married and is the father of four young children. He too has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.

• Jose Palma has been a lawful permanent resident of the United States since 1971, but faces deportation as a result of a first-degree reckless endangerment conviction from 1978, for which he served 60 days in jail and five years on probation. He has lived an exemplary life during the 30 years since he was released from parole supervision, having become a business owner and raising his three children with his wife of over 30 years. Like Gonzalez and Guzman, he has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.

• Randy Valentin De La Cruz has been a lawful permanent resident since the age of 13, but now faces removal to an unfamiliar country as a result of a 1984 conviction for first-degree assault, for which he was sentenced to 1½ to 4½ years in prison. In the 26 years since this conviction, De La Cruz and his wife have raised their two children, one of whom has served in the U.S. Navy for the last 11 years. Like other pardon recipients, retroactive changes in the immigration laws have made De La Cruz ineligible for cancellation of removal. The pardon should eliminate all grounds for deportability.

Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate

Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate
Matter of Brynien v New York State Dept. of Civ. Serv., 2010 NY Slip Op 09442, Decided on December 23, 2010, Appellate Division, Third Department

The New York State Department of Civil Service asked the State Civil Service Commission to jurisdictionally reclassify over 30 medical job titles from competitive class to the noncompetitive class.*

The New York State Public Employees Federation [PEF], which represented individuals employed, or to be employed, in such titles objected.

Following an “informal hearing,” the Commission approved the Department's request to reclassify as noncompetitive “29 enumerated clinical physician, medical specialist, psychiatrist, pathologist, dentist and veterinarian job titles, but denied reclassification for pharmacy-related titles.”

PEF filed a petition pursuant to Article 78 of the CPLR challenging the Commission’s determination. Supreme Court granted PEF’s petition and annulled the Commission’s determination with respect to the “29 enumerated titles” and the Civil Service Department appealed.

The Appellate Division, noting that “it is axiomatic that a job classification determination is subject to limited judicial review and will not be disturbed absent a showing that it was wholly arbitrary or without a rational basis” and further, “if the classification determination has a rational basis in the record, it will be upheld even if there exists legitimate grounds for a difference of opinion.”

In this instance the Appellate Division concurred with Supreme Court’s determination and dismissed the Department’s appeal.

Starting with the basic proposition that New York State’s Constitution, Article V, §6 mandates that appointments and promotions to civil service positions be made according to merit and fitness to be determined, "as far as practicable," by competitive examination, the court addressed each of the Department’s arguments as set out below.

1.The Department argued that because the job titles at issue already require a license, credential and/or board certification, competitive examination for these positions is "unnecessary, redundant and adds no value to the assessment of candidates' merit and fitness."

The court said that the fact that a competitive examination is "redundant" or "unnecessary" has no bearing on whether such an examination is impracticable.

2. The Department argued that competitive examination "adds little if any value" to the assessment of a candidate's merit and fitness because the license, credential and/or board certification required for the job titles already provides an objective and verifiable measure of a candidate's qualifications for the position.

The Appellate Division rejected this argument, stressing that Article V, §6 mandates that appointments be made according to fitness and merit and although a licensing accreditation process measures whether an applicant is fit to practice in that discipline according to the minimum standards established by the regulating authority it found no factual or rational basis for the conclusion that competitive testing is impracticable because the possession of a credential, license and/or board certification is an adequate substitute for measuring a candidate's fitness and merit.**

3. The Department claim that a competitive examination was impracticable was based on its assertion that candidates who rank highest on the examination — the candidates with the most training and experience — are not necessarily the best qualified for the position.

Noting that “the Department has not submitted any facts or empirical data to support its claim in this regard, other than its conclusory assertion that ‘[e]xperience has shown’ that ranking candidates based upon years of experience does not ensure that candidates with the most experience are the most qualified for the job” the Appellate Division said that “the classification standards issued by the Department for nearly all of the job titles at issue clearly establish that work experience is the primary and distinguishing factor in evaluating a candidate's fitness and merit.” Further, said the court, “[t]o the extent that the Department suggests that a candidate's on-the-job performance, coupled with a noncompetitive examination, would provide a more effective indicator of merit and fitness, we need only note that this is not a valid basis for dispensing with competitive examination,” citing Matter of Wood v Irving, 85 NY2d at 249.

4. The Department claimed that the use of competitive examination causes delay in the hiring process and inhibits the ability to recruit qualified employees.

Such an argument, said the court, is entirely irrelevant to practicability — that is, the ability to objectively and fairly assess candidates' merit and fitness by way of competitive examination.

5. The Department claimed that the competitive examinations for the subject job titles do not rank candidates based on experience and training that is relevant to the specific type of work that the particular position requires.

The Appellate Division rejected this claim as well, commenting that “this could easily be remedied by a mere specification of the particular training needed for any given position.” In addition, the court pointed out that “under the so-called ‘rule of three,’ the appointing authority is never required to appoint or promote the candidate with the highest score.” Rather the appointing authority is given flexibility and may choose among other reachable candidates if it finds them to be more qualified for a particular position.

* Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law].

** The Appellate Division said that the Department's claim of irrelevancy is belied by its own job descriptions for essentially all of the positions, which not only indicate that possession of the required license is only a minimum qualification for the position. Further, said the court, another “distinguishing factor” with respect to a candidate's qualifications is the number of years of work experience he or she claimed.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09442.htm

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student
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.

Purvis v. Oest, ___F.3d____(7th Cir. Aug. 2, 2010), is an interesting case.

The Seventh Circuit held that three school officials who conducted an investigation into allegations that a teacher had sexually abused one of her students were entitled to qualified immunity from the former teacher’s suit that the biased nature of the investigation corrupted the subsequent criminal investigation in violation of her due process rights.

The court also ruled that the chief of police was entitled to qualified immunity from the teacher’s claim of false arrest because he had probable cause to make the arrest.

The teacher had resigned from her employment in exchange for a cash settlement. In finding that the individual defendants were entitled to qualified immunity, the court applied the two-step immunity test:

(1) whether the plaintiff showed a that the defendant had violated a constitutional right; and

(2) whether that right was clearly established at the time the violation occurred.

Mitchell H. Rubinstein

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege
Liere v Scully, 2010 NY Slip Op 09227, Decided on December 14, 2010, Appellate Division, Second Department

Peter Scully, Regional Director of the State Department of Environmental Conservation told a television reporter alleging the Robert Liere was "bulldozing" his farm to create a "massive solid waste facility," as well as alleging that Liere accepted "land clearing debris" and "yard waste" without obtaining required governmental approvals, just prior to the Department issuing an administrative warrant to inspect Liere’s farm.

Liere sued, contending that he had been defamed by Scully, sued seeking to recover damages. Supreme Court dismissed Liere’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division ruled that Scully had demonstrated that he was entitled to have Liere’s lawsuit dismissed as a matter of law by presenting evidence that the challenged statements were protected by a qualified privilege.*

A qualified privilege, explained the court, applies to statements that are " fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned."

Scully had shown that he made the statements to which Liere had objected “in his official capacity as regional director of the DEC and that the television reporter to whom he made the statements, and the public in general, had corresponding interests in the statements' subject matter.”

Although the matter could have gone to trial if Liere had shown that there was a triable issue of fact as to whether Scully statements had exceeded the scope of the privilege or whether the statements were made with either spite or ill will [common law malice**] or a high degree of awareness of the statements' probable falsity [constitutional malice***], the Appellate Division ruled that Liere had failed to demonstrate that Scully was guilty of any act that would otherwise defeat his claim to a qualified privilege.

* In contrast, an "absolute privilege" protects the speaker from any and all liability based on statements alleged to be defamatory. Typically this privilege is extended in connection with some governmental function such statements made by a member of a legislative body in connection with his or her legislative duties or when uttered as sworn testimony in a judicial or legislative proceeding.

** Common requires proof of hatred or ill will.

*** See New York Times Co. v. Sullivan, 376 U.S. 254

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09227.htm
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