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Saturday, July 30, 2011

The Marriage Equality Act and New York State Taxes

The Marriage Equality Act and New York State Taxes
 Source: New York State Department of Taxation and Finance

A document explaining the tax implications of New York's Marriage Equality Act has been posted on  the New York State Department of Taxation and Finance's Web site at http://www.tax.ny.gov/pdf/memos/multitax/m11_8c_8i_7m_1mctmt_1r_12s.pdf

The document explains that all marriages, whether of same-sex couples or different-sex couples, will be treated equally under all laws of the state.

Accordingly, the Act applies to all taxes administered by the Tax Department as of the effective date of July 24, 2011.

Layoff, reinstatement and tenure by estoppel considered

Layoff, reinstatement and tenure by estoppel considered
Decisions of the Commissioner of Education, Decision #16256

Full text of the decision


1. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District and Lynn Hadity relating to preferred eligibility rights.

2. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District regarding teacher termination.



KING, JR., Acting Commissioner.--On or about March 31, 2009, petitioner commenced an appeal pursuant to Education Law §310 challenging the determination of the Board of Education of the Deer Park Union Free School District (“board” or “respondent board”) to appoint Lynn Hadity as a reading teacher (“Dickinson I”).  In a separate appeal commenced on or about July 22, 2009, petitioner challenged the actions of the board terminating her employment (“Dickinson II”).

On June 30, 2010, a decision was rendered, consolidating the two appeals (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082) and concluding in Dickinson I that the board violated petitioner’s rights when it failed to recall her to the vacant reading teacher position created in the 2008-2009 school year and ordering that she be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008; and, concluding in Dickinson II, that when petitioner was recalled to a reading teacher position in June 2009, she was a probationary employee not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a and, therefore, was properly terminated on July 28, 2009.[1]

Pursuant to Article 78 of the Civil Practice Law and Rules, respondent appealed the decision to Supreme Court, Albany County.  In a decision dated February 22, 2011, the court ordered that the petition be granted solely to the extent of vacating the Commissioner’s determination in Dickinson II and remanded the matter to the Commissioner “for clarification on the effect of his determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II and the basis upon which such determination is made.”[2]  Accordingly, as remanded by the court, I have considered petitioner’s tenure claims in Dickinson II in light of Dickinson I.

Pursuant to §276.5 of the Commissioner’s regulations, respondent board submitted a memorandum of law addressing the effect of the decision in Dickinson I on petitioner’s tenure status.[3]  The board alleges that the decision in Dickinson I properly did not interfere with its authority to grant or withhold tenure from petitioner.  The board seeks a determination that its recall and termination of petitioner as a probationary teacher was proper, that petitioner did not obtain tenure by virtue of Dickinson I and that petitioner is entitled only to the salary, seniority and benefits of a probationary reading teacher as of September 1, 2008 until her termination on August 31, 2009, less any compensation she received in the interim.

On or about September 1, 2005, petitioner was appointed as a remedial reading teacher in the district, subject to a two-year probationary period.  On April 24, 2007, the board granted petitioner tenure in reading, effective August 31, 2007.  On June 30, 2007, petitioner’s position was abolished and her name was placed on the district’s preferred eligibility list for a reading position.

Dickinson I held, inter alia, that the board violated petitioner’s rights when it failed to notify and recall her to an elementary school reading teacher position created for the 2008-2009 school year and ordered that petitioner “be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008, less any compensation she may have received in the interim.”

Petitioner’s reinstatement on September 1, 2008 by order pursuant to Dickinson I did not result in her acquiring tenure in the district.  As previously noted in Dickinson II, in Remus v Bd. of Educ. for Tonawanda City School Dist. (96 NY2d 271, 278), the Court of Appeals held that a board of education resolution that grants tenure to a teacher effective on a specified future date “confers tenure upon the teacher only as of that specified future date.”  (see Mahoney v Mills, 29 AD3d 1043, lv to app den 7 NY3d 708).  There is no dispute that petitioner’s teaching position was properly abolished on June 30, 2007, prior to the August 31, 2007 effective date of the conditional tenure appointment on August 31, 2007.  Therefore, petitioner’s tenure never took effect.

Consequently, when petitioner was “recalled and appointed” as of September 1, 2008, by virtue of the order in Dickinson I, it was to a probationary position in the reading tenure area.  Although she was awarded back pay, petitioner never rendered any further actual service in that tenure area.  Therefore, petitioner was a probationary employee when the board acted to recall her to a reading position on June 23, 2009 and simultaneously rescinded her conditional tenure appointment.  Accordingly, petitioner was a probationary employee when she was terminated by respondent and was not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a.
Nor does the decision in Dickinson I result in petitioner acquiring “tenure by estoppel”. 

“Tenure by estoppel ‘results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term’” (Matter of Gould v. Bd. of Educ. of the Sewankhaka Cent. High School Dist. et al., 81 NY2d 446, citing Matter of Lindsey v Bd. of Educ., of Mount Morris Cent. School Dist., et al., 72 AD2d 185, 186) (emphasis added).  This is not the situation before me.  Here, the board did not knowingly permit petitioner to teach beyond the expiration of her probationary term but, instead, was ordered in Dickinson I to reinstate her retroactively to September 1, 2008.  It is noteworthy that, when the board did act to recall petitioner on June 23, 2009 to a probationary position in the reading tenure area, it simultaneously rescinded its April 24, 2007 conditional appointment of petitioner in that tenure area.  Indeed, petitioner never rendered any further service in the reading tenure area under the reasonable expectation that it would lead to tenure.   As such, the board did not itself acquiesce or consent to the continuance of her employment in the district and, consequently, petitioner did not acquire tenure by estoppel (see LaBarr v Board of Ed. Of Union Free School Dist. No. 1, Town of Hempstead, 425 F Supp 219 [EDNY 1977]).

Based on the foregoing, I find that the relief provided in Dickinson I had no effect on petitioner’s tenure status and, therefore, the rationale for dismissing petitioner’s tenure claims as set forth in the decision in Dickinson II remains unaltered (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082).

While petitioner disagrees with the board’s determination to terminate her from her position, petitioner has failed to present any evidence that the reason for the board’s denial of tenure was in violation of any statute or the constitution.  Accordingly, having determined that the decision and order in Dickinson I had no effect on petitioner’s tenure claims raised in Dickinson II, I hereby affirm and adopt the findings and determination in Dickinson II in its entirety for the reasons set forth therein and in this decision.

THE APPEAL IS DISMISSED.

[1] The facts and procedural history are set forth in the original decision. 
[2] As ordered by Supreme Court, the sole issue for consideration is the effect of the determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II.  To the extent the parties attempt to introduce arguments not directly relevant to the tenure issue, I have not considered them.
[3] By letter dated April 8, 2011, my Office of Counsel notified each party of the opportunity to submit additional affidavits and memoranda of law on the sole issue of the effect of Dickinson I on petitioner’s tenure status.  Petitioner did not submit any further papers or memorandum.

Friday, July 29, 2011

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing
Matter of Martin v Board of Trustees of the Vil. of Pelham Manor, 2011 NY Slip Op 06106, Appellate Division, Second Department

The Village of Pelham Manor found Robert Manor, a Village police officer guilty of a number disciplinary charges filed against him including excessive use of paid sick leave and insubordination. The penalty imposed, termination.
 
Manor appealed, contending that the Village’s determination was not supported by substantial evidence in the record. The Appellate Division disagreed, sustaining the Village’s findings and the penalty it imposed.

The court explained that the standard of review in an administrative determination made after a hearing is limited to considering whether the determination was supported by substantial evidence. In contrast, the Appellate Division said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which evidence to accept or reject.”

Accordingly, where there is conflicting evidence and, or, testimony, it is the administrative tribunal, not the court, that weights the evidence and the determines credibility of the witnesses testifying at the hearing.

As to the penalty imposed, dismissal from his position, the Appellate Division, applying the so-called Pell test {[Pell v Board of Education, 34 NY2d 222], held that “the penalty of termination of employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” 

An appointing authority does not have the authority to take unilateral action to dismiss an individual because of alleged pre-employment misconduct


An appointing authority does not have the authority to take unilateral action to dismiss an individual because of alleged pre-employment misconduct
Umlauf v Safir, 286 AD2d 267

Clearly, an employee may be subjected to disciplinary action for his or her off-duty misconduct that adversely affects his or her employer. If the employee is found guilty, any one of a number of penalties, including termination, may be imposed. The Umlauf case raises a related issue: what action, if any, may the appointing officer take in consideration of an employee's “pre-employment” misconduct.

In this instance the employee sued the City of New York following the Police Commissioner's dismissing him from his position without a hearing. Although the employee's petition seeking to annul the Commissioner's action was dismissed by State Supreme Court Justice William Davis, the Appellate Division reversed Justice Davis' decision “on the law.”

The Appellate Division ordered Commissioner Safir to reinstate the individual to his former position. If the Commissioner wished have the employee terminated, said the court, Safir would have to submit a request for such action in accordance with the provisions of Civil Service Law Section 50.4.

Section 50.4 provides for the disqualification of applicants or eligibles by the state civil department or responsible municipal civil service commission for a variety of reasons. The court's decision indicates that the relevant provision in this case is Section 50.4(d). Paragraph (d) authorizes the disqualification of an individual who has been guilty of a crime.

Section 50.4 further provides that “[n]o person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The court found that Safir had terminated the employee because of the individual's pre-employment conduct. This, said the Appellate Division, was improper -- an appointing authority does not have the authority to take such unilateral action. The court pointed out that in this instance Section 50.4 of the Civil Service Law vests the authority to disqualify or remove the individual in the head of New York City's Department of Citywide Administrative Services, not the head of a City department or agency.

Further, the individual may neither be disqualified nor terminated, as the case may be, unless he or she is provided with a written explanation of the reasons for the proposed action and given an opportunity to submit an explanation and facts opposing such action prior to his or her disqualification for, or termination of, employment.

Where the appointing authority seeks to have an individual disqualified or employee terminated for one or more reasons set out in Section 50.4, it should so advise the State Department of Civil Service or the responsible municipal civil service commission, as the case may be, setting out its reasons for seeking the disqualification or termination of the individual.

Is the individual who is to be disqualified or terminated pursuant to Section 50.4 entitled to a hearing before the department or municipal commission? In Mingo v Pirnie, 55 NY2d 1019, the Court of Appeals ruled that no “Section 50.4 hearing” is required where the individual is advised of the reasons for the proposed action and given an opportunity to submit a written explanation and exhibits contesting his or her disqualification or termination.

Another element in this case -- the employee had also claimed that he was entitled to a name-clearing hearing. The Appellate Division, citing Swinton v Safir, 93 NY2d 758, agreed. The court said that the worker “has sufficiently raised the issues of the partial falsity and overall characterization of information included in his personnel file, the dissemination of such information, both past and future, as well as the presence of 'stigma plus' -- in this case governmental defamatory action in conjunction with loss of employment” 

Discontinuing General Municipal Law Section 207-c benefits


Discontinuing General Municipal Law Section 207-c benefits
Dacey v Dutchess County, 121 AD2d 536

An individual is receiving benefits pursuant to Section 207-a or Section 207-c of the General Municipal Law and is absent on disability leave. While on disability leave and while still receiving benefits, the individual served with disciplinary charges alleging off-duty misconduct that occurred while he or she was on such leave. This was the fact pattern underlying a question raised by a reader. The question: What happens to the Section 207-c benefits if the individual is found guilty following a disciplinary hearing and the penalty imposed is termination?

The Appellate Division's decision in the Dacey case indicates that Section 207-a and Section 207-c benefits cease upon the termination of the employee.

Dacey, a Dutchess County corrections officer, was injured in the line of duty and was granted disability benefits pursuant to Section 207-c. While on disability leave she was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. Found guilty of the charges, she was terminated. The County discontinued her Section 207-c benefits when she was dismissed. Claiming that she could not be deprived of her disability benefits solely on the basis of her termination following disciplinary action, Dacey sued.

The Appellate Division said that Section 207-c of the General Municipal Law must be read together with Section 75 of the Civil Service Law. Its conclusion: Dacey was entitled to receive her Section 207-c benefits only until she was terminated following her being found guilty of misconduct in the disciplinary action.

May the employer discontinue the payment of Section 207-a or Section 207-c whenever the employee is lawfully removed from the payroll rather than solely upon his or her “termination of employment” such as the 30-day suspension without pay authorized by Civil Service Law Section 75 or pursuant to the terms of a collective bargaining agreement?

Noting that prior to a final determination in the disciplinary action, Section 207-c benefits could not be suspended without a prior evidentiary hearing, the Appellate Division advised that such benefits had to be continued until a “final determination ... which would justify her removal from the payroll” was made. However, this does not suggest that the employee subject to disciplinary action must be continued in Section 207-a or 207-c status pending a final determination in the administrative disciplinary procedure if there is some lawful basis to otherwise discontinue such payments.

It would seem that the courts would not hold the payment of Section 207-a and Section 207-c benefits absolute and agree that they may be discontinued for the duration of any Section 75 or contract disciplinary action involving a lawful “suspension without pay” such as the 30-day period of suspension pursuant to Section 75.3 pending a determination of disciplinary charges; when the individual would otherwise be removed from the payroll such as approval of the accused individual's request to adjourn a scheduled hearing date; or as a result of the imposition of a disciplinary penalty of a suspension without pay for a specified period.

Applying the statute of limitations


Applying the statute of limitations
Dolce v Bayport-Blue Point UFSD and others, 286 AD2d 316

Sometimes an individual will claim that his or her union had violated its duty of fair representation. The Dolce cases explores a number of issues, including a claim involving an alleged breach of the union's duty of fair representation that were intertwined with Statute of Limitation problems.

According to the Appellate Division, this lawsuit was brought by members Bayport-Blue Point Teachers Association against the Association and the School District. Dolce's compliant alleged a “breach of contract.” In reality, said the court, Dolce's complaint appeared to a violation of the union's “duty of fair representation” claim.

Sustaining State Supreme Court Justice Emerson dismissal of the complaint for a number of technical reasons, including being time-barred, the Appellate Division, said that while the plaintiffs describe their action as involving a breach of contract, “the gravamen [material part] of the complaint is that the defendant Bayport - Blue Point Teachers' Association, Inc., unfairly favored one group of teachers over the Dolce plaintiffs in negotiations with the [school district] over the terms of two successive retirement incentives, thereby causing the Dolce plaintiffs to lose salary and pension benefits.”

According to the Appellate Division, Dolce's claims against the Teachers' Association are, in essence, for breach of duty of fair representation. This means, said the court, the commencement of their action is governed by a four-month Statute of Limitations.

Its conclusion: the Supreme Court correctly determined that the Dolce's claims against the Teachers' Association were time-barred since their petition was filed after the four-month period had passed.

The court also said that “[a]s the claims against the [School District] are inextricably intertwined with the claims against the Teachers' Association for breach of its duty of fair representation, they are governed by the four-month Statute of Limitations ... and thus, are also time-barred.”

Another element in this case: the Dolce plaintiff’s failure to serve a timely notice of claim on the school district. Filing such a notice, said the court, was a condition precedent to the commencement of the action against the school district. Further, the Supreme Court did not have any authority to grant the Dolce plaintiffs permission to serve a late notice of claim.

Why didn't the court has such authority? Because, explained the Appellate Division, citing Sainato v Western Suffolk BOCES, 242 AD2d 301, Dolce ask the lower court for such permission after the Statute of Limitations for bring their law suit had already expired 

Thursday, July 28, 2011

COBRA notifications must be sent to eligible individuals by employer


COBRA notifications must be sent to eligible individuals by employer
Phillips v Saratoga Harness Racing Inc., USDC, NDNY, 240 F.3d 174

U.S. District Judge Lawrence E. Kahn ruled that the employer did not satisfy the Consolidated Omnibus Budget Reconciliation Act of 1985's [COBRA] notification requirements when it relied on its employee, Frank Studenroth, to give his former spouse information concerning her rights under COBRA to continue her health insurance.

In 1994 Studenroth, without his wife's knowledge, obtained an ex parte divorce in the Dominican Republic. He told Saratoga to discontinue his group health insurance plan coverage for his former spouse as a covered dependent and to substitute his newly married spouse as his dependent.

Saratoga Harness gave Studenroth the necessary information advising his former spouse of her right to maintain her health coverage under COBRA. According to Judge Kahn, although Studenroth promised Saratoga that he would have the documents delivered to his former spouse, she did not get these materials. She first learned that she no longer had health insurance coverage when her claims for health insurance benefits were rejected for “lack of coverage.”

Judge Kahn said Saratoga was incorrect when it relied on an employee to transmit COBRA information to an estranged spouse. It is the employer's duty to supply such information and it cannot escape this responsibility by relying on its employee's agreement to give the necessary information to a former spouse.

Judge Kahn said that:

While some married couples are able to dissolve their marriages amicably, it is well known that separations and divorces often turn once-loving spouses into bitter enemies. As such, it is unreasonable to depend on a health care plan beneficiary's former spouse to deliver a COBRA notice to the beneficiary. The very nature of divorce itself forecloses this avenue as a reasonable attempt to comply with the notification requirements.

Judge Kahn held Saratoga liable for the medical expenses incurred by the former Mrs. Studenroth.

The lesson here is that an employer must assure itself that the party who is to be advised of his or her COBRA rights must actually receive such information in a timely manner. The best way to do this is for the employer to provide the information directly rather than to rely on a third party to deliver the information on its behalf. In addition, it would be prudent to obtain proof that the individual actually received the information and the date on which that event took place in order to be able to demonstrate it compliance with COBRA's requirements.

A petition seeking the removal a school official requires specific wording


A petition seeking the removal a school official requires specific wording
Decisions of the Commissioner of Education #14,608

Michelle Knapp filed an appeal with the Commissioner of Education seeking to have the Commissioner remove Freeport Union Free School District Board Member Sunday F. Coward. Her appeal was rejected because she failed to comply with the procedural requirements set out in the Commissioner's Regulations.

Knapp charged that Coward had “violated board policies” and had “threatened her and made racist remarks to her following a board meeting on March 28, 2001.” The Commissioner said that he was compelled to dismiss Knapp's appeal because she had failed to serve Coward with a copy of her petition. The decision notes that with respect to "an application to remove a school officer pursuant to Education Law Section 306, Commissioner's Regulation Section 277.1(b) requires that the notice of petition must specifically advise the [school official] that the application is being made for [his or her] removal from office."

It appears that Knapp used the notice prescribed by Section 275.11(a) for appeals brought pursuant to Education Law Section 310. The Commissioner said that “[a] notice of petition which fails to contain the language required by the Commissioner's Regulations is fatally defective and does not secure jurisdiction over the intended respondent,” citing Appeal of Khalid, Commissioner's decision 14,570).

The reason for this, explained the Commissioner, is that it is “the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with Section 277.1(b) necessarily results in a jurisdictional failure and requires dismissal” of the appeal.

Employee terminated for failure to “call-in” and physical confrontations with co-workers


Employee terminated for failure to “call-in” and physical confrontations with co-workers
Kampel v Westchester County Health Care, Corp., 286 AD2d 390

Robert Kampel, was served with disciplinary charges alleging excessive absences, failure to comply with the established call-in procedure to report his absences, and two incidents in which he pushed co-workers. Found guilty, Kampel was terminated from his position.

Finding that the disciplinary determination was supported by substantial evidence, the Appellate Division, citing the Pell standard, Pell v Board of Education, 34 NY2d 222, sustained the penalty imposed. The court said that dismissal was not so disproportionate to the offenses for which Kampel had been found guilty as to be “shocking to one's sense of fairness.”

Independent contractors and Title VII

Independent contractors and Title VII
Holtzman v The World Book Company Inc., USDC, EDPa.- 2001 WL 936492

It is not uncommon for a public employer to engage the services of an “independent contractor” to perform certain tasks.

In deciding the Title VII complaint filed Arlene Holtzman, a former employee of the World Book Company, Senior U.S. District Court Judge Lowell A. Reed Jr. ruled that Title VII protects workers who are “employees,” but does not apply to independent contractors.

According to the decision, Holtzman's position was “outsourced” by World Book and she became an “independent contractor” although she performed essentially the same duties she had performed as a World Book employee. This change in status, said Judge Reed, meant that Title VII no longer was applicable as Title VII only covers applicants for employment and employees.*

The court noted that in 1995 World Book reorganize its sales operations. As a result, it negotiated contracts with individuals designated “regional directors.” When Holtzman was told of the new arrangement, she approached Rosemarie Lee, a former World Book branch manager. Lee had formed her own corporation, Leer Services. Leer's sales force included a number of former World Book sales representatives. Holtzman signed a contract with Leer Services.

Was Holtzman an employee, and if so, whose employee? Judge Reed said that the U.S. Supreme Court set out a number of factors to be considered in determining whether or not an individual is an employee or an independent contractor in Nationwide Mutual Insurance Company v Darden, 503 US 318.

The Supreme Court's “common law test” for determining who qualifies as an “employee” in Darden lists the following factors to be considered in making the determination:

1. The hiring party's right to control the manner and means by which the work is accomplished.

2. The skill required;

3. The source of the supplies and tools used by the individual;

4. The location of the work;

5. The duration of the relationship between the parties;

6. Whether the hiring party has the right to assign additional duties or projects to the hired party;

7. The extent of the hired party's discretion over when and how long to work;

8. The method of payment;

9. The hired party's role in hiring and paying assistants;

10. Whether the work is part of the regular business of the hiring party;

11. Whether the hired party is in business;

12. Whether the hiring party provides employee benefits; and

13. The tax treatment of the hired party.”

Applying the Darden factors to Arlene Holtzman's position selling World Book's educational products, Reed found that her status had clearly changed in 1995 from employee to independent contractor and thus she was not able to maintain her Title VII action.

* Title VII defines the term “employee” as “an individual employed by an employer ....”

Wednesday, July 27, 2011

Appointing authority threatening to do what it has a legal right to do is not “coercion”

Appointing authority threatening to do what it has a legal right to do is not “coercion”
Rychlick v Coughlin, 63 NY2d 643

Suppose an employee entitled to pre-termination “notice and hearing” is told that unless he or she immediately resigns from his or her position, he or she will be served with disciplinary charges. Does such a demand constitute unlawful coercion? This issue was considered by the New York State Court of Appeals in Rychlick.

Rychlick, a State corrections officer, was told that unless he immediately submitted his resignation, formal disciplinary charges would be filed against him. He submitted his resignation. A few days later he asked to withdraw the resignation on the grounds that it had been “forced” from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

The Court of Appeals upheld the appointing authority's refusal to allow Rychlick to withdraw his resignation, ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.

Anatomy of a hearing officer's disciplinary findings and recommendation


Anatomy of a hearing officer's disciplinary findings and recommendation
Averill Park CSD v Craig Landin, Decision of Hearing Officer Howard A. Rubenstein, Esq.

The analysis of the record by the hearing officer in considering Section 75 disciplinary charges filed by the Averill Park Central School District against school custodian Craig Landin provides examples of several important issues that a hearing officer may be required to consider and rule upon in the course of formulating his or her findings and recommendations.

In the course of formulating his findings and recommendations, Section 75 Hearing Officer Howard A. Rubenstein sets out his reasoning in (1) determining the credibility of witnesses and (2) holding that certain of the charges filed against Landin did not constituted “double jeopardy.”

Landin was served with a number of charges and specifications alleging misconduct and incompetence. One charge alleged that Landin falsified his time records by reported he had worked overtime when he “in fact ... did not work at least part of those hours” claimed. Other charges included allegations that Landin failed to perform, or assign a subordinate to perform, certain duties when he was directed to do so and neglected to open the building as scheduled on Election Day, November 7, 2000.

As to the charge alleging that Landin falsified his time records, on Tuesday, June 13, 2001, Landin completed and signed the time sheet indicating that he had worked overtime from 9:00 a.m. to 4:30 p.m. on Saturday June 9, 2001.

There was a problem with this statement, however. The testimony of Landin's supervisor, Henry Altenweg, was that he had observed Landin working “in his yard” as he drove by Landin's home about 10 a.m. on June 9 on his way out of town. Further, Dr. Wayne Johnston, the school principal, testified that he entered the building at approximately 9:15 a.m. on June 9, 2001 and had to turn off the alarm system when he arrived. Dr. Johnston explained that if anyone had been present in the building when he arrived, the alarm either would have been set off by the earlier visitor or would have had to have been turned off by the earlier visitor.*

Landin then explained that he did not work on June 9, attributing his claim to have worked on that date to “forgetfulness,” and made the affirmative defense that he had “accepted the offered overtime and completed the assignment on Sunday, June 10, 2001 between the approximate hours of 9 a.m. and 5 p.m.”

The problem with this defense was that Altenweg also testified that he drove by Landin's home about 1:00 p.m. on Sunday, June 10 while returning from out of town and again observed him working in his yard.

Essentially Landin testified that he worked either on the 9th or the 10th, or maybe on both days, but he just could not remember when he worked. However, when asked “[d]o you remember when you got to work?, he responded “[a]t 8:55 a.m.” because “ [w]hen I pulled up to the building -- my clock is right in my dashboard, smack dab in the middle. And just before I shut it off, I looked at the time to make sure I wasn't late, and it said 8:55.”

Sarah O'Hearn and Phyllis Kapelewski, witnesses called to testify by Landin, could not recall seeing him at work on either June 9 or June 10 or whether the tasks they asked to perform were actually done on that Saturday or that Sunday.

As to the reaction of the hearing officer to Landin's testimony concerning when he reported for work, Rubenstein commented that Landin just tells a different story every time he is asked when he actually worked. “Landin's explanation that his loss of memory as to which day he performed the overtime was due to illness apparently was the result of a case of date specific amnesia, but not time specific amnesia, since although he could clearly recall that he had reported for work at 8:55 a.m. and left work at 4:30 p.m, he could not recall on which day he had worked ... I reject Landin's testimony as to when and how many hours he may have worked overtime on the June 9th weekend as entirely unworthy of belief.”

In contrast, Rubenstein said that the testimony of Altenweg that he saw Landin at his home on June 9th at approximately 10:00 a.m. and on June 10th at approximately 1:00 p.m. was clear and convincing and stands essentially unchallenged in the record. He noted that Landin never specifically denied that he was at his home at 10 a.m. on Saturday June 9th and at 1 p.m. on Sunday June 10th.

In addition, said Rubenstein, Dr. Johnston's testimony that when he arrived at School on Saturday June 10th, the alarm system was still on and therefore Landin could not have been there at that time also stands unchallenged.


The bottom line: Rubenstein concluded that “Landin lied when he reported the date and time he worked overtime to Altenweg and is thus guilty of charge 1....”

Charge 2 consisted of five specific instances in which it was alleged that Landin failed to adequately clean, or to ensure that one of his subordinates adequately cleaned, various areas within the school building. The hearing officer found Landin guilty of all specifications.

In his post hearing brief, Landin argued that his failure to clean areas identified in the charge do not justify disciplining him given the fact that he had a significant amount of extra work to perform and, in any event, “is such a minor matter that it does not warrant the imposition of any penalty.” The hearing officer said that this argument goes to the nature of the penalty to be imposed rather than whether Landin was guilty as charged.

Landin also argued that he received a memorandum concerning his failure to remove certain materials from the building on January 3, 2001, and that such a memorandum constituted discipline and that he could not be charged with the same misconduct twice.

Rubenstein rejected this argument, noting that in this instance the counseling memo constituted proper supervisory conduct rather than an impermissible disciplinary action. In the words of the hearing officer:

As the Court of Appeals indicated in Holt v Webutick Central School District, 52 NY2d 625, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

In other words, comments critical of employee performance do not, without more, constitute disciplinary action. Typically the “more” is the imposition of some form of penalty. Coupling a “counseling memorandum” with some form of an adverse personnel action would be viewed as a subterfuge for initiating required disciplinary action.

In some instances it may be difficult to determine the location of that thin line that separates lawful “constructive criticism” of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature. Here, said Rubenstein, that thin line is easy to distinguish.

Why? Because “[t]he memo was clearly a lawful means of instructing Landin concerning unacceptable performance and the actions that he should take to improve his work. No disciplinary characteristics attach to the memo, nor does it contain any disciplinary action or threat or promise of detrimental action.”

Rubenstein also pointed out that in Patterson v Smith, 53 NY2d 98, the Court of Appeals ruled that including charges concerning an employee's performance that were previously addressed in a counseling memorandum does not constitute double jeopardy. The court commented that while a proper counseling memoranda may contain a warning and an admonition to comply with the expectations of the employer, it is not a form of punishment in and of itself.

As to Charge 3, Landin's alleged failure to open the building on Election Day, a task that he had done on earlier occasions, the hearing officer decided that Landin's failure to open the building or to ask if he should open the building “is inexcusable and constitutes misconduct or incompetence.”

In view of his findings that Landin was guilty of all charges and specifications, Rubenstein recommended that Landin be dismissed from his position. The school board adopted the hearing officer's findings and recommendation and dismissed Landin from his position.

Another procedural matter: Rubenstein placed the appointing authority's letter designating him to serve as the hearing officer in the record. Why did he elect to do this? To demonstrate his authority to conduct the hearing. The courts have ruled that the failure to designate the disciplinary hearing officer in writing is a fatal procedural defect requiring any resulting disciplinary action to be vacated.

* Dr. Johnston also testified that he reset the alarm when he left at approximately 10:00 a.m. The alarm “did not beep,” indicating that no one was present in the building when the alarm was reactivated.

Light duty assignments involving law enforcement personnel


Light duty assignments involving law enforcement personnel
Cripe v City of San Jose, CA9, 99-15253

The Cripe's case considers the mandates of the Americans With Disabilities Act [ADA] in terms of the obligations of a law enforcement agency to keep disabled police officers in the “main stream” for the purposes of making assignments consistent with the needs of the agency and the abilities of the disabled officer.

The San Jose [California] Police Department has more than 1,300 sworn officers. Officers were assigned to one of three types of positions: beat-patrol assignments; modified-duty assignments -- positions specifically set aside for disabled officers; and specialized assignments. Specialized assignments consist of all sworn officer assignments other than beat-patrol and modified-duty assignments.*About one half of the force work in “beat assignments.”

Six City of San Jose police officers with neck and back injuries that prevented them from serving as patrol officers sued the Department alleging that the Department placed them in “a small number of undesirable positions” and did not consider them for “special assignment” posts. This Department policy, they alleged, violated the ADA.

The Department's response: “public safety would be compromised if officers with physical limitations that prevented them from forcibly arresting suspects were permitted to perform more than the prescribed handful of modified duty jobs that had been made available to them.” According to the Department, the six officers did not qualify as “disabled” within the meaning of the ADA because:

1. They cannot perform the “essential functions” of the positions they seek because they could not effect a forcible arrest or subdue a fleeing suspect;

2. It would impose an “undue hardship” on the City to require it to accommodate the plaintiffs by waiving the disputed policies; and

3. The modified-duty assignment policy is a reasonable accommodation satisfying the ADA's mandate.

The Circuit Court disagreed, holding that the Department's policy violated the ADA. The court said that “relegating [the disabled officers] to unsatisfactory jobs in which they have little or no possibility for promotion simply cannot be reconciled with the ADA's 'clear and comprehensive national mandate' to eliminat[e] ... discrimination against individuals with disabilities.”

The Circuit Court decided that the ADA requires the employer to find ways to bring the disabled into its ranks, even when doing so imposes some costs and burdens. The San Jose Police Department, said the court, must participate in this process, as long as it can do so in a manner that will not compromise public safety.

The crux of the matter: was making a forcible arrests and subduing fleeing suspects an “essential function” of all specialized-assignment positions in the San Jose Police Department. According to the ruling, “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.” The Circuit Court concluded that a requirement that officers be physically capable of making forcible arrests does not reflect an essential function for all specialized assignment police officers.

In other words, the court ruled that the disabled officers were qualified individuals with a disability who, with or without reasonable accommodation, can perform the essential functions of the position that such individuals hold or desire, including, presumably, certain “special assignment.”

As examples, the decision notes that the disabled officers presumably would make good background investigators, good internal affairs investigators, and good recruiters or training officers, assignments that do not typically involve making forcible arrests or subduing fleeing suspects.

The bottom line: the Circuit Court ruled that there is a factual dispute as to whether the ability to make a forcible arrest is an essential function of all the specialized-assignment positions that the disabled officer seek the opportunity to fill, notwithstanding the job descriptions that the Department has prepared. In the words of the court:

We conclude that the [disabled officers] are not categorically unable to perform the essential functions of the “specialized assignments” they seek, even though they may be unable to make forcible arrests and subdue suspects. They are, rather, for purposes of this appeal, “qualified individual[s] with ... disabilit[ies].”

In another light duty case, Champ v Baltimore County, Md., [95-2061], the U.S. Circuit Court of Appeals, Fourth Circuit, ruled that a Baltimore County police officer who lost 100% of the use of his left arm was not entitled to a permanent light-duty assignment.

Significantly, the department defined the essential duties of a police officer as including the ability to make a forcible arrest, drive vehicles during an emergency and correctly aim a firearm while using two hands. Officer James Champ, who was severely injured in an off-duty motorcycle accident, could not show that he could perform any of these tasks.

In this unpublished decision, Judges Donald Russell, Sam Ervin III and William Wilkins Jr. said the ADA was not violated when the county placed Champ on disability retirement because he was not able to demonstrate he could perform the essential functions of the job of police officer, with or without reasonable accommodation.

In Stone v City of Mount Vernon, CA2, 96-7976, decided June 30. 1997, the U.S. Circuit Court of Appeals observed that the proper way to analyze the merits of a claim under the federal disability statutes is to focus on the fundamental job duties of the specific position an individual with a disability desires, rather than on the title .

* Specialized assignments are viewed as very desirable by department personnel. In consideration of this, the Department and San Jose Peace Officers Association negotiated an elaborate procedure for selecting personnel for these preferred jobs.

Tuesday, July 26, 2011

Employee terminated for forging superior’s signature on an official document


Employee terminated for forging superior’s signature on an official document
Dep’t of Education v. Bermel (in PDF) -  OATH Index No. 1332/11

A custodian was charged with forging a principal’s signature on an annual operation plan for cleaning a City school. 

OATH Administrative Law Judge John Spooner found that testimony from the principal and from a Department official proved the forgery and that the custodian filed the plan without permitting the principal to review it. 

The NYC Chancellor of Education adopted Judge Spooner’s recommended that the individual be dismissed.
Proposed Respect for Marriage Act of 2011 introduced in Congress
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

On Tuesday, July 19, 2011, the White House announced President Obama's support for repeal of the Defense of Marriage Act (DOMA).  The DOMA defines marriage for purposes of federal benefits, including FMLA leave, as a union between one man and one woman.  DOMA limited the availability of FMLA leave to care for a spouse to heterosexual marriages, thereby excluding same sex marriages and civil unions.  In February of this year the Obama administration announced that it would not longer defend the constitutionality of the DOMA. The recent announcement would repeal the DOMA altogether.

The repeal of the DOMA is contained in the Respect for Marriage Act of 2011, S. 598 and H.R. 1116.  The House and Senate bills are identical. Both would repeal the section of the DOMA defining marriage as the union of one man and one woman.  In its place, the legislation propose the following language:

For purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individuals marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. 

The proposed legislation defines a "State" to include the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

Mr. Bosland Comments: If enacted, the Respect for Marriage Act would require covered employers to permit FMLA leave to care for a same sex spouse, provided that the marriage was legally recognized in the State where the marriage was entered.  The Respect for Marriage Act does not set a national standard stating that same sex marriages are valid for purposes of the FMLA.  Rather, the Respect for Marriage Act requires employers to look to State law to determine if a marriage is valid.  Currently, a few states recognize same sex marriage.  Many states outlaw same sex marriage.  Some states recognize same sex civil unions or domestic partners, but not same sex marriages.  Because they do not have the same status as marriage, the Respect for Marriage Act as currently written would not require employers to grant FMLA leave to an employee to care for a domestic partner or spouse in a civil union.   

Combined with the Full Faith and Credit Clause of the Constitution, the Respect for Marriage Act requires covered employers with operations in states that do not recognize same sex marriage to nevertheless recognize those marriages as valid for FMLA leave purposes if the marriage was valid in the state where the marriage was entered.  

For example, a same sex couple were legitimately married in New York, a State that recognizes same sex marriage.  The couple thereafter moves to Mississippi for a job opportunity.  Lets assume that Mississippi does not authorize same sex marriages.  All things being equal (e.g., company is covered by the FMLA, employee is eligible for leave, condition meets one or more serious health condition definitions, proper notice and certifications provided, etc.), if the employee of this same sex marriage requests FMLA leave to care for their spouse with a serious health condition, the employer could not deny the leave simply because Mississippi does not recognize same sex marriages.  Because the marriage arose in New York, where it was valid when entered, the couple are married for purposes of FMLA leave.  The Company would process the leave request as it would any other FMLA leave request by an employee to care for a spouse.

Passage of the legislation in the Democrat controlled Senate is likely, even with their thin majority.   During the run-up to the Presidential election, it will be interesting to see how the legislation fares in the Republican-controlled House.  The framing of the bill as something of a States-rights issue may peel some Republicans off their otherwise expected rejection of the proposed legislation.  The Obama Administration's support of the repeal of the DOMA will also require the Republican Presidential hopefuls to state their position, which may also result in a few surprises.

Stay tuned!     

Senate bill is posted on the Internet at:

Concerning the Doctrine of Primary Jurisdiction


Concerning the Doctrine of Primary Jurisdiction
Donato v Plainview-Old Bethpage CSD, 286 AD2d 388

The Doctrine of Primary Jurisdiction was the underpinning of a decision by a State Supreme Court justice in the Donato case -- a case involving an educator's claim that she was eligible for reinstatement from a preferred list.

As the Appellate Division noted, the Doctrine of Primary Jurisdiction “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”*

In other words, although the court has original jurisdiction, questions involving the exercise of an administrative body's special competence or expertise is to be referred to that body for an initial determination.

The doctrine of primary jurisdiction, the court explained, is intended to coordinate the relationship between courts and administrative agencies so that, among other things, the agency's views on factual and technical issues can be made available to the courts where the matter before the court concerns issues that are within the agency's specialized field.

According to the ruling, in 1991 Linda Donato's position at the District's Mattlin Middle School -- Social Studies Chairperson, Grades 5-8 -- was abolished for budgetary reasons. The district placed Donato's name on a preferred eligible list “for reappointment to a similar position” in accordance with Section 3013(3)(a) of the Education Law.

In 1997 the District created a new position -- District-wide Social Studies Chairperson, Grades K-12. Donato asked to be appointed to this new position from the Social Studies Chairperson, Grades 5-8, preferred list. The District, contending that the preferred list was not appropriate because the duties of the position, which it had abolished, were not similar to those of the new position, refused to use the preferred list to appoint Donato to the vacancy.

Donato, claiming that the two positions were, indeed, similar for the purposes of the certification of the preferred list, initiated an Article 78 action to compel the District to use the preferred list. If the preferred list were appropriate for filling the new position, the District would have to either appoint Donato to the new position or elect to keep it vacant.**

The Supreme Court dismissed the Donato's petition after concluding that the doctrine of primary jurisdiction was applicable. The court said that in this instance the Commissioner of Education should resolve the issue of whether or not the positions are similar for the purposes of certifying the preferred list.

The Appellate Division affirmed the lower court's ruling that the doctrine of primary jurisdiction applied in this case. Citing Hessney v Public Schools of Tarrytowns, 228 AD2d 954, the court pointed out that “the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether [Donato's] former position and the new position are similar within the meaning of Education Law Section 3013(3)(a).”

Another procedural wrinkle to consider: A statute sometimes allows an individual to file his or her complaint or appeal either (a) with a court or (b) with an administrative body. Examples of such “election” of jurisdiction opportunities:

1. Section 76 of the Civil Service Law provides that an individual may file his or her appeal from a Section 75 disciplinary determination by an appointing authority initially with the civil service commission having jurisdiction within thirty days of the decision or with the court pursuant to Article 78 of the Civil Practice Law and Rules.

2. Section 297.9 of the Executive Law, New York's Human Rights Law, allows a human rights complaint to be initially filed with a court or with the State Division of Human Rights.

* Another doctrine frequently cited in cases challenging an administrative decision is the doctrine of the exhaustion of administrative remedies. In contrast to the doctrine of primary jurisdiction, the “exhaustion doctrine” involves satisfying a condition precedent to initiating litigation where there is an administrative appeal procedure in place. Typically courts will decline to assume jurisdiction if the complaining party has failed to exhaust his or her available administrative remedy.

** As a general rule, reinstatement from a preferred list does not require that the individual serve a probationary period in contrast to all other types of permanent appointment, which typically require that the individual satisfactorily complete a probationary period in order to attain tenure in the title.

Constitutionally protected speech of public officers and employees


Constitutionally protected speech of public officers and employees
McKinley v Kaplan, CA11, 262 F. 3d 1146

The general rule is that a public employee cannot be disciplined simply for exercising his or her constitutional right to free speech concerning matters of public interest. Where the employee speaks out on matters of public concern, the government bears the burden of justifying any adverse employment action it might take against the individual.

A public employee's speech concerning a private or personal interest, however, is a different matter. The public employer is not required to justify disciplinary action taken in response to an employee's speech regarding personal matters, such as a change in the employee's duties or work location.

Further, in Pickering v Board of Education, 391 US 563, the U.S. Supreme Court held that a public employee's right to freedom of speech is not absolute because “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”

The McKinley case raises another element to consider concerning the right of a public employer to regulate the speech of its employee -- the employer's expectations with respect to a policy-maker's speech concerning matters of public interest related to the individual's work.

Margaret McKinley, a volunteer and unpaid member of the Miami-Dade County Film, Print, and Broadcast Advisory Board,* was removed from her position because, said the County, she had expressed and supported a position that was “inappropriate and insulting to the community” represented by the sponsor of her appointment as well as being inconsistent with County policy.

According to the decision, the County had adopted a policy “prohibiting contracts between the County and any firms doing business either directly or indirectly with Cuba.” After determining that an organization planning an Entertainment Conference “was doing business with Cuba by inviting Cuban artists to perform,” the County voted against providing any public monies to support the event.

McKinley disagreed with this decision and made a statement at a public meeting held by the Miami Beach Fashion, Film, Television and Recording Committee to the effect that losing the Conference would hurt Miami's entertainment industry and that the County's action improperly reflected only the views of the Cuban-American community. She was quoted in the Miami Herald as follows: "While we respect and appreciate the concerns of Cuban-Americans in the exile community, allowing a few people's political standpoint to dictate the potential economic growth of the area is not for the benefit of the community as a whole."

McKinley sued the County after she was dismissed from her position, contending that the county violated her First and Fourteenth Amendment rights because she was fired as a result of the public statement she made concerning a County policy with which she disagreed.

A federal district court judge dismissed McKinley's complaint, holding that the First Amendment did not provide her with any right to continued government employment. The court's rationale: McKinley's role on the Film Board involved public contact and providing input into County policy decisions and she failed to properly represent the views and policies of the County to the public. The Circuit Court affirmed the ruling, pointing out that the Pickering decision sets out a four prong test for determining if an employee's protected speech rights have been violated by a public employer's action:

1. Did the speech involve a matter of public concern?

2. If so, does the government's interest in promoting the efficiency of the public services it performs through its employees out weight the employee's interest in protected speech?

3. If so, did the employee's speech play a substantial part in the government's decision to discharge the employee? and, finally,

4. If the speech was a substantial motivating factor in the employer's decision, has the government shown by a preponderance of the evidence that it would have discharged the employee regardless of the protected conduct?

The parties agreed that the only issue to be addressed in this instance was “the balancing prong of the Pickering test” -- weighing the respective interests of the County and McKinley. According to the court:

1. On McKinley's side of the scale is her interest in voicing her opinion on a controversial county resolution.

2. On the County side is its need to maintain loyalty, discipline, and good working relationships with those employees and board members they appoint and supervise.

The Circuit Court's conclusion: the balance tipped in favor of the County based on the proposition that “governments have a strong interest in staffing their offices with employees that they fully trust, particularly when the employees occupy advisory or policy-making roles.” Finding that McKinley was a “policy-maker,” based on the fact that her duties required her to serve in an advisory capacity with input on policy issues, the court concluded that this factor “gives the County a greater interest in removing her based on her speech.”

The Circuit Court then said that “[p]erhaps more important to our decision than [McKinley's] policy influence or public contact, however, is the fact that [McKinley] served as an appointed representative of the County ... and she failed to support [its] interests.” According to the ruling:

It was not [McKinley's] right to free speech that was affected by the County Commission's decision to remove her. Rather, it was her right to maintain an appointed position ... in light of her choice to publicly dissent from [the County's] clearly stated views and policies.

Whistle blowing involves another element that must be considered when determining if the employer's interest in limiting its employees' speech outweighs an employee's interest in free speech. For example, Section 75-b of the Civil Service Law, provides that a public employer “shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information regarding a violation of law ... which violation creates and presents a substantial and specific danger to the public health or safety....” It also includes a provision, Section 75-b.4, that states that nothing in the Section “shall be deemed to ... prohibit any personnel action which otherwise would have been taken regardless of any disclosure of information.” [See, also, Labor Law 740].

Sometimes it may be difficult to distinguish the line between “free speech” and “whistle blowing.” For example, did the McDonald case [McDonald v City of Freeport [TX], 834 FSupp 921] concern the issue of “free speech,” or “whistle blowing” or, perhaps, both.

In McDonald the court considered allegations made by police officers that the City fired one police officer and forced another to retire after they spoke to the media about alleged police misconduct. Some might classify this type of activity “whistle blowing.” The federal district court, however, made its ruling based on “free speech” concerns, holding that such action violated the police officers' First Amendment rights.

In this instance, said the court, the employee's interest in revealing such matters of public concern outweighed the police department's interest in maintaining “an efficient police department.” According to the decision, only a concern for “national security” or similar situations would serve to limit an employee from revealing improper governmental practices to the public.

* The pay status of the individual has no bearing with respect to an individual's alleged terminated for an improper or unconstitutional reason. As the court indicated in Hyland v Wonder, 972 F.2d 1129, serving as a volunteer constitutes a government benefit or privilege and that “[r]etaliatory actions with less momentous consequences [than loss of employment], such as loss of a volunteer position, are equally egregious in the eyes of the Constitution because a person is being punished for engaging in protected speech.”

School's attorney not a school official


School's attorney not a school official
Decisions of the Commissioner of Education #14,595

One of the issues considered by the Commission of Education in Philips v Liverpool Central School District was Philips' objection to a statement made by the District's attorney during a regular meeting of the District's Board of Education.

The Commissioner, citing Matter of McGinley, [Decision 11,244], said that the statement made by the attorney at the Board's meeting to which Philips objected “is not actionable in the context of a Section 310 appeal to the Commissioner” because the attorney is neither a district officer nor district employee.

Further, the Commissioner said that General Municipal Law Section 805-a, which prohibits a board member from discussing confidential information acquired during the course of his or her official duties, does not apply with respect to statements made by the school district's attorney.

Monday, July 25, 2011

Suspended employee’s reinstatement conditioned on a written assessment from a licensed therapist

Suspended employee’s reinstatement conditioned on a written assessment from a licensed therapist
Matter of Board of Educ. of the City School Dist. Of the City of N.Y. v Campbell, 2011 NY Slip Op 32018(U), Sup Ct, NY County, Judge Joan A. Madden [Not selected for publications in the Official Reports.]

A tenured teacher employed by the Board of Education of the City was reassigned because of his alleged violation of the Board of Education’s Internet use policy barring accessing pornographic material on a school computer. Ultimate the teacher was served with disciplinary charges pursuant to Education Law 3020-a alleging conduct unbecoming a teacher, neglect of duty, and insubordination based on the teacher’s alleged use of a school computer to access and view pornographic and, or, inappropriate materials.

The hearing officer found that the DOE had failed to demonstrate that the teacher was guilty of the specifications charging him with viewing and downloading pornographic photographs, but held that he was guilty of specifications charging him with downloading and viewing two “inappropriate” photographs. 

In consideration of the teachers 15-year tenure without any prior discipline action having be taken against him, the penalty imposed by the hearing officer was "suspension without pay for the remainder of the school year, or 90 days, whichever is longer.” 

In addition, the hearing officer condition the teacher's return to work upon the teacher's “submitting a written assessment from a licensed therapist to the Department’s Office of Legal Services indicating that therapist “has read this Opinion and Award, has evaluated the Respondent, and that he or she concludes that the [teacher] is not addicted to Internet pornography and that his viewing of Internet pornography, as described herein, will not adversely affect his ability to teach and will not place students at risk.”

The teacher subsequently underwent a psychological examination conducted by a licensed therapist. The therapist’s report was provided to the DOE but Legal Services advised a representative of the Teachers’ Union that the therapist's assessment “does not sufficiently comply with the arbitrator’s directive.”

The teacher then filed a motion seeking a court order directing DOE to return him to his position and submitted the therapist's report to the court for its in-camera inspection.*

Upon review of the therapist's assessment, Judge Madden ruled that “it does not satisfy” the hearing officer’s directive, which required that, following an evaluation of the teacher, the therapist conclude “that [teacher] is not addicted to Internet pornography and that his viewing of Internet pornography will not adversely affect his ability to teach and will not place students at risk.”

The court pointed out that its ruling was supported by the therapist's acknowledgment in his report that he could not determine whether if the teacher was addicted to pornography, characterizing such determination as “nearly impossible,” and that he was only able to state that there “is no evidence that Campbell has an Internet addiction.”

Accordingly, said Judge Madden, a condition required by the Award relevant to the teacher’s reinstatement had not been met and denied the motion without prejudice to the teacher “seeking a further psychological assessment consistent with the Award.”

* In the context of this decision it appears that the term is used to mean "the judge takes a private look at the therapist's report." The term is more typically used to describe the process whereby a judge or hearing officer reviews evidence or documents  in private to determine whether sthe evidence or document is admissible.

Discontinuing a disability retirement allowance

Discontinuing a disability retirement allowance
Inquiry from a reader

From time to time a reader will submit a question to the editor of NYPPL. One query recently submitted concerned the authority of the New York State Employees’ Retirement System to discontinue an individual’s disability retirement allowance once such an allowance has been approved for the individual by the System.

The controlling laws, rules and regulations for both the New York Employees’ Retirement System and the New York State Policemen's and Firemen's Retirement System provide for the discontinuation of an individual’s disability retirement allowance under certain circumstances.

With respect to the New York Employees’ Retirement System, subdivision a of §102 of the Retirement and Social Security Law provides, in relevant part, as follows:

Subdivision a. Once each year following the retirement of a member on a disability allowance, the comptroller may, and, upon the beneficiary's application, shall require such disability beneficiary to undergo a medical examination.

If the individual refuses to submit to a medical examination required by the Comptroller, the pension portion of the individual’s retirement allowance, including the “pension-providing-for-increased-take-home-pay,” is to be discontinued. Should the individual continuously refuse to submit to such a medical examination for twelve months, the individual forfeits his or her  pension benefit.

It should be noted that case law suggests that once a pension benefit is forfeited it cannot be reinstated even if the individual subsequently satisfies the condition or requirement that resulted in such forfeiture.

Further, subdivision b of §102 provides, in relevant part, that “The pension, including the pension-providing-for-increased-take- home-pay, of a disability beneficiary shall be reduced in the event that any such disability beneficiary is engaged in a gainful occupation paying more than the difference between his [or her] retirement allowance, as it would be without optional modification and if not reduced by the actuarial equivalent of any outstanding loan and if not increased by the actuarial equivalent of any additional contributions, and his [or her] final salary.” The adjustment is made so that the individual’s annuity and the amount so earnable by the individual is equal the individual’s final salary. If the individual’s earning capacity thereafter changes, the amount of the pension payable may be further adjusted.

In addition, subdivision c of §102, in pertinent part, provides that “In the event that the comptroller shall determine that a disability beneficiary is able to engage in a gainful occupation,” if the individual “so requires” the Comptroller is to certify the name of the individual to the State Civil Service Department or appropriate municipal civil service commission.

The State Civil Service Department or such municipal commission is to then place the individual’s name, “as a preferred eligible,” on the appropriate eligible lists prepared by it for positions for which such individual is qualified and at a salary grade not exceeding that from which he or she was last retired. Adjustments to the individual’s pension benefit will be made so that his or her total compensation shall not exceed his or her final salary. Further, the individual is not eligible for membership in the retirement system as long as he or she receives any pension, including the pension providing for increased take home pay.

Finally, in the event that a “disability beneficiary” is restored to active service of an employer at a salary equal to or in excess of his or her final salary, his or her retirement allowance is discontinued in its entirety [see RSSL §102.d].

With respect to members of the New York State Policemen's and Firemen's Retirement System receiving disability retirement benefits, §402 of the Retirement and Social Security Law tracks the provisions of §102 of the Retirement and Social Security Law including a provision providing that “… a retiree of any New York state police or fire retirement system on a disability allowance who returns to gainful employment as an elected public official shall continue to receive the full amount of his or her retirement allowance, including the pension-providing-for-increased-take-home-pay” [See RSSL §402.f-1].

The requirements of these several provisions of law are reflected in Parts 336 and 337 of the Rules of the State Comptroller [2 NYCRR 336 and 2 NYCRR 337] and these Parts are set out below:

PART 336. DISABILITY RETIREMENT FOR MEMBERS OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM UNDER ARTICLE 14 OF THE RETIREMENT AND SOCIAL SECURITY LAW

[Current through February 28, 2011]

Section 336.5. Recovery of disability beneficiaries.

(a) The Comptroller may, once each year following the retirement of a member on a disability allowance, and upon the beneficiary's application shall, require such disability beneficiary to undergo a medical examination. No such examination may be required until one year following the final determination granting disability retirement. Such examination shall be made at a place mutually agreed upon by the Comptroller and such beneficiary. In the event that any such disability beneficiary shall refuse to submit to a medical examination, the retirement allowance shall be discontinued until the member submits to a medical examination. If such refusal shall continue for one year, all pension rights shall be forfeited.

(b) Following such examination, or examinations, the Comptroller shall render a determination based upon the report of the medical board. Where the Comptroller determines that a beneficiary who has retired from a competitive class position is no longer incapacitated for the performance of gainful employment, the Comptroller shall certify to the applicable civil service department or commission, that the beneficiary is a preferred eligible to be placed upon the appropriate eligible list or lists, if any. Disability payments shall continue until such time as the beneficiary is first offered a position in public service at a salary grade equal to or exceeding that of the position from which the beneficiary had retired.

(c) In the event that a beneficiary had not retired from a competitive class position, or in the event that there exists no eligible list which encompasses the competitive class position from which he or she had retired, disability payments shall cease one calendar year from the date of the Comptroller's redetermination, and the beneficiary shall, if he or she had been vested at the time of retirement, be restored to membership in the New York State Employee's Retirement System.


2 NYCRR 336.6 provides as follows:

(a) The retirement allowance of a disability beneficiary shall be reduced in the event that any such disability beneficiary is employed in an occupation paying more than the difference between his retirement allowance, as it would be without optional modification, and the final salary. The retirement allowance shall be adjusted to a sum which, when added to the amount so earnable, shall equal the final salary. If the earnings subsequently change, the retirement allowance shall be adjusted so that the sum of retirement allowance when added to the amounts earned shall not exceed his final salary. The reduction shall be from the amount that the allowance would have been without optional modification. The retirement allowance of a disability beneficiary shall not be reduced after he or she has attained the applicable mandatory retirement age, or shall have attained the age and the date such beneficiary would have been eligible for service retirement under applicable law had he or she remained in continuous service from the date of retirement. For the purposes of this section, applicable law shall mean the plan and/or provision under which the member was enrolled on the date the disability retirement became effective.

(b) In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his final salary, his retirement allowance shall cease. Thereafter, such person shall contribute to the retirement system in the same manner and at the same rate that he paid prior to his disability retirement. The total service which was credited at the time of  such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned by him subsequent to his last restoration to membership will be credited.

(c) In the event that a disability beneficiary is restored to active public service at a salary less than his final salary but equal to or in excess of the current minimum salary for the position from which he was last retired for disability, such person, if he or she so elects, shall again become a member of the retirement system and the retirement allowance shall cease. If such an election is filed with the Comptroller, such individual shall contribute to the retirement system in the same manner and at the same rate as was paid prior to disability retirement. The total service which  was credited at the time of such retirement shall be credited to the restored individual. Upon his subsequent retirement, additional service earned subsequent to the last restoration to membership will be credited.


PART 337. DISABILITY RETIREMENT FOR MEMBERS OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM UNDER ARTICLE 15 OF THE RETIREMENT AND SOCIAL SECURITY LAW

[Current through February 28, 2011]

Section 337.5. Recovery of disability beneficiaries.

(a) The Comptroller may, once each year following the retirement of a member on a disability allowance, and upon the beneficiary's application shall require such disability beneficiary to undergo a medical examination. No examination upon a beneficiary's application may be required until one year following the final determination granting disability retirement. Such examination shall be made at a place mutually agreed upon by the Comptroller and such beneficiary. In the event that any such disability beneficiary shall refuse to submit to a medical examination, the retirement allowance shall be discontinued until the member submits to a medical examination. If such refusal shall continue for one year, all pension rights shall be forfeited. The following indicia of a disability beneficiary's ability to return to the duties of the position from which such individual retired on account of disability, and any other reasonable indicia, shall be considered in determining whether it is appropriate to require the medical examination of a disability beneficiary (who has not requested such medical examination) for the purposes of this Part:
(1) medical evidence or records submitted to the Retirement System that indicates that the disability beneficiary may be able to perform the duties of the former position;

(2) videotape, photographs or other documentation or evidence submitted to the Retirement System which indicates that the disability beneficiary may be able to perform the duties of the former position;

(3) a determination by the Social Security Agency, Workers' Compensation Board or similar entity which indicates that the disability beneficiary may be able to perform the duties of the former position;

(4) documentation with respect to the disability beneficiary's earnings in a position or positions which may reasonably be construed as indicating that the disability beneficiary may be able to perform the duties of the former position.

(b) Following such examination, or examinations, the Comptroller shall render a determination based upon the report of the medical board. Where the Comptroller determines that a beneficiary who had retired from a competitive class position is no longer incapacitated for the performance of gainful employment, the Comptroller shall certify to the applicable civil service department or commission, that the beneficiary is a preferred eligible to be placed upon the appropriate eligible list or lists, if any exist. Disability payments shall continue until such time as the beneficiary is first offered a position in public service at a salary grade equal to or exceeding that of the position from which the beneficiary had retired.

(c) In the event that a beneficiary had not retired from a competitive class position, or in the event that there exists no eligible list which encompasses the competitive class position from which he or she had retired, disability payments shall cease one calendar year from the date of the Comptroller's redetermination, and the beneficiary shall, if he or she had been vested at the time of retirement, be restored to membership in the New York State Employees' Retirement System.


Section 337.6 provides as follows:

(a) The retirement allowance of a disability beneficiary shall be reduced in the event that any such disability beneficiary is employed in an occupation paying more than the difference between his retirement allowance, as it would be without optional modification, and the final salary. The retirement allowance shall be adjusted to a sum which, when added to the amount so earnable, shall equal the final salary. If the earnings subsequently change, the retirement allowance shall be adjusted so that the sum of retirement allowance when added to the amounts earned shall not exceed his final salary. The reduction shall be from the amount that the allowance would have been without optional modification. The retirement allowance of a disability beneficiary shall not be reduced after he or she has attained the applicable mandatory retirement age, or shall have attained the age and the date such beneficiary would have been eligible for service retirement under applicable law had he or she remained in continuous service from the date of retirement. For the purposes of this section, applicable law shall mean the plan and/or provision under which the member was enrolled on the date the disability retirement became effective.

(b) In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his final salary, his retirement allowance shall cease. Thereafter, such person shall contribute to the retirement system in the same manner as and at the same rate that he paid prior to his disability retirement. The total service which was credited at the time of  such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned by him subsequent to his last restoration to membership will be credited.

(c) In the event that a disability beneficiary is restored to active public service at a salary less than his final salary but equal to or in excess of the current minimum salary for the position from which he was last retired for disability, such person, if he or she so elects, shall again become a member of the retirement system and the retirement allowance shall cease. If such an election is filed with the Comptroller, such individual shall contribute to the retirement system in the same manner and at the same rate as was paid prior to disability retirement. The total service which  was credited at the time of such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned subsequent to the last restoration to membership will be credited.



Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

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

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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