Using hearsay evidence in a disciplinary hearing

Using hearsay evidence in a disciplinary hearing
Saunders v City of New York, App. Div., First Dept., 273 A.D.2d 103, motion for leave to appeal denied, 95 N.Y.2d 766

A New York City police officer was terminated from his position after being found guilty of having "assaulted and caused physical injuries” to two individuals.

The officer appealed, contending that the Commissioner's determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that "[t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence."

According to the decision "[h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined."

This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at the officer's departmental disciplinary hearing, said the court, "was a matter to be assessed by the Deputy Commissioner who presided at the trial.”

Accordingly, said the court, determinations concerning the credibility of witnesses "is largely beyond our power of review."

Barring a former employee from property

Barring a former employee from property
Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS 16257

May an employer prohibit an individual it has dismissed from entering its property? The Second Circuit Court of Appeals ruled the employer may prohibit such an individual from entering its non-public areas.

A Transportation Workers Union representative had been dismissed from his position with the New York City Transit Authority [NYCTA]. NYCTA then banned the representative from the non-public areas of its property. The representative sued, contending that this action by NYCTA violated his First Amendment rights.

The Circuit Court affirmed a federal district court's dismissal of the Union representative’s petition. The lower court had determined that he "failed to show a likelihood of success on the merits" because:

1. He did not demonstrate that he was excluded from non-public areas because the Transit Authority's motivation was to impair the exercise of his First Amendment freedoms or;

2. The Transit Authority's rule barring discharged employees from non-public areas lacked a reasonable basis.

The representative also attempted to obtain a stay of arbitration, claiming that NYCTA and Local 100 went forward with his arbitration "without allowing him to participate in selecting a neutral arbitrator to chair the arbitration panel." The Circuit Court of Appeals rejected this representation as moot "because the arbitration [had] proceeded to conclusion."

Employee exonerated of alleged off-duty misconduct

Employee exonerated of alleged off-duty misconduct

NYC Department of Corrections v Gayle, OATH Index #105/12

OATH Administrative Law Judge John B. Spooner recommended dismissal of a charge that a correction officer had caused more than $250 worth of damage to her former landlord’s property.

The landlord’s testimony that he saw the correction officer hitting the bathroom walls with a sledgehammer was uncorroborated and contradicted in part by evidence that the landlord himself had damaged the apartment.

The correction officer’s testimony that she had moved out of the apartment one month before the damage was incurred following alleged “improper actions by the landlord,” was corroborated by her sister’s testimony, date-stamped photographs showing the apartment in disarray, and the landlord’s admission that he had piled bolts of fabric inside the correction officer’s apartment and removed light bulbs because he was frustrated by her failure to pay rent and abrupt departure from the apartment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1051.pdf

Payroll deductions

Payroll deductions
Westchester County Correction Officers Benevolent Association, 33 PERB 3025

Although a "letter ruling" by the Internal Revenue Service advised the employer that it had the discretion to withhold income tax from the wages of individuals on workers' compensation leave or receiving benefit pursuant to Section 207-c of the General Municipal Law bi-weekly and reimburse the employee for such deductions annually or elect not to make such deductions, PERB ruled that it was an improper practice for the employer to change its procedure from not making such deductions to making bi-weekly deductions without first negotiating the change with the employee organization even where the claim for such benefits was controverted by the employer since the exercise of discretion is generally subject to a duty to bargain.

An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolve

An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolve

Board of Educ. of Yorktown Cent. Sch. Dist. v Yorktown Congress of Teachers, 2012 NY Slip Op 06023, Appellate Division, Second Department

Yorktown Central School District filed an Article 75 petition seeking a permanent stay arbitration of a claim by a teacher for approval of certain graduate credits for compensation pursuant to a collective bargaining agreement. Supreme Court granted the school districts petition and the Yorktown Congress of Teachers appealed.

The Appellate Division reversed the lower court’s ruling “on the law” and directed that the parties proceed to arbitration.

The court noted that the relevant collective bargaining agreement included [1] an annex to the salary schedule providing for payments for approved graduate credits and [2] a “four-step grievance* procedure culminating in binding arbitration.”

The Appellate Division explained that in determining whether a dispute between a public sector employer and employee organization on behalf of an employee is arbitrable,** a court must first determine whether there is a statutory, constitutional or public policy prohibition against arbitration of the grievance. If it finds no such prohibition against arbitration, the court must examine the parties' collective bargaining agreement to determine "whether the parties in fact agreed to arbitrate the particular dispute."

Finding that arbitration of the instant dispute was not prohibited by public policy or statute, including those provisions of the Education Law permitting any party aggrieved by a determination of a board of education to appeal to the Commissioner of Education nor by the power of a school board to manage the educational affairs of the school district, the Appellate Division found that there was a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA – i.e., a claim for approval of graduate credits for compensation and the general subject matter of the CBA.

Noting that “some uncertainty exists as to whether the subject matter of the dispute is encompassed within the provision governing payments for approved graduate credits or the exclusion from arbitration of matters involving the Board's discretion,” the Appellate Division said that any alleged ambiguity in the CBA "regarding the coverage of any applicable provision is . . . a matter of contract interpretation for the arbitrator to resolve."

Accordingly, the Appellate Division granted the Youngstown Congress of Teacher’s cross petition to compel arbitration.

* In this instance the CBA defined a "grievance" as "any dispute or claim by either party . . . arising out of or in connection with this Agreement" other than matters that involved [a] the School Board's exercising its discretion, [b] a nonapproval of tenure decision; and [c] matters where a review was prescribed by law.

** Subject limited exceptions, as a general rule only the certified or recognized employee organization may demand arbitration of a grievance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06023.htm

Reinstatement following layoff focuses on tenure rights

Reinstatement following layoff focuses on tenure rights

Chauvel v. Nyquist, 55 AD2 76, affd., 43 NY2 48)

Does “greater system-wide service” control situations involving layoff of teachers, or is it seniority in corresponding or similar positions that determines which person is to be offered an open teaching position first?

Where the performance of duties of the open position is unquestionably “similar” to those of the abolished positions, the teacher having the greater seniority in the performance area, not in the employing school district itself, is to receive the appointment.

Standards for such re-employment are more narrow than those dealing with layoff (Ward v. Nyquist, 43 NY2d 57) so as to prevent erosion of the tenure rights of the incumbents of abolished positions and means that the duties required to be performed in the vacant position must be similar to the duties performed by the person in his previous position before it was abolished. A test was stated in Elkins, 14 Ed Dept Repts 193, to the effect that if more than one-half of the functions to be performed by the incumbent of the new position are those which he performed in his old position, the positions are similar.

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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Statute of limitations for challenging a personnel decision begins running when the individual is notified of the final and binding determination

Statute of limitations for challenging a personnel decision begins running when the individual is notified of the final and binding determination
McCarry v Purchase Coll., State Univ. of N.Y., 2012 NY Slip Op 06026, Appellate Division, Second Department

In a proceeding pursuant to CPLR Article 78 challenging the decision of the President of the State University of New York College at Purchase not to reappoint an assistant professor to the Purchase faculty, Supreme Court annulled the President’s determination and remitted the matter to for a de novo review and a new determination. Supreme Court also directed the retroactive reinstatement of the faculty member with full compensation and benefits pending the de novo review.

The Appellate Division reversed the lower court’s rulings “on the law."

Pointing out that the assistant professor’s challenge to the President’s decision was time-barred by the four-month statute of limitations, the court explained that the statute of limitations set forth in CPLR §217(1) began to run on the date that the challenged determination became final and binding.*

Citing Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62, the Appellate Division said that "A determination generally becomes binding when … the agency has reached a definitive position that inflicts concrete injury to the aggrieved party that cannot be prevented or significantly ameliorated by further administrative action” and the individual has been advised of that determination.

In this instance it was undisputed that the assistant professor commenced his Article 78 action more than four months after receiving notice that he had not been reappointed to his teaching position.

Significantly, the court said that the limitations period did not run from the date upon which the assistant professor's fixed-duration employment contract automatically ended but rather commenced to run when he received notice of the “final determination” that he would not be reappointed to the college faculty.

Further, said the court, even had the faculty member Article 78 action “been timely commenced, the record demonstrates that the [College President] substantially complied with the internal rules of Purchase College, State University of New York and the determination was not arbitrary and capricious."

* N.B. A request to “reconsider” a final and binding administrative determination does not toll the running of the Statute of Limitations [Lavin v Lawrence, 54 AD3d 412].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06026.htm

Evidence of progress in employee’s treatment for alcoholism tempers disciplinary penalty

Evidence of progress in employee’s treatment for alcoholism tempers disciplinary penalty

NYC Department of Sanitation v Anonymous, OATH Index #1637/12

Although the New York City Department of Sanitation sought to terminate an employee after a positive alcohol test, OATH Administrative Law Judge Tynia D. Richard recommended a 30-day suspension for the sanitation worker.

Judge Richard noted that the employee had offered evidence of his progress through alcohol treatment as a recovering addict.

The Department’s request for termination was essentially based on the two earlier opportunities that it had provided the worker to recover from his alcohol dependence.*

In fashioning a penalty recommendation, the ALJ noted that employee had voluntarily entered the treatment program, took responsibility for his actions and showed insight into the extent of his problem, and that such a penalty might be combined with ongoing alcohol testing (though not provided under Civil Service Law §75) as the Department sees fit.

* Individuals who abuse alcohol may be considered disabled under the ADA if the person is an alcoholic or a recovering alcoholic. Courts have usually held that alcoholism is a covered disability. For example, in Williams v. Widnal, 119 F3d 305, [Cert. Denied 118 S. Ct. 871], the court said, without discussion, that alcoholism “is a covered disability.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1637.pdf

Payment of vacation leave accruals upon separation from employment

Payment of vacation leave accruals upon separation from employment
Bolin v Nassau County Bd. of Coop. Educ. Servs., 52 AD3d 704

Although the employee admitted that she "agreed to resign" and plead guilty to attempted grand larceny in the second degree, she subsequently sought payment of her “accrued vacation benefits” and the return of her “personal property” from Nassau County Board of Cooperative Educational Services [BOCES].

BOCES had rejected the request for the payment of accrued vacation benefits in the sum of $31,020.80. Of amount, $16,768.00 representing the cash value of her 40-day vacation leave balance and $14,252.80 represented the cash value of her 34-day "vested bank" vacation leave balance. In a separate cause of action, the individual sought the return of certain items of her personal property that she claimed BOCES had unlawfully refused to return after she retired.

BOCES asked Supreme Court to dismiss the combined petition/complaint, arguing that, as a matter of public policy, their former employee was not entitled to either payment because she pleaded guilty to attempted grand larceny in the second degree.

The Supreme Court agreed with BOCES and dismissed the petition/complaint, holding that, as a law, BOCES was within its right to reject the request for a lump sum payment representing her unused and "vested bank" vacation leave in view of her guilty plea.

The Appellate Division disagreed, ruling that the guilty plea did not warrant dismissal of BOCES's former employee’s petition/complaint in its entirety because, in this instance, certain provisions of a collective bargaining agreement controlled.

The relevant provision in the collective bargaining agreement, said the court, "gives BOCES the discretion to deny payment for ‘vested bank’ vacation leave if the employee's separation from BOCES was ‘for cause.’”

Under the circumstances the Appellate Division ruled that Bolin’s separation from BOCES was "for cause" and thus she failed to demonstrate that BOCES was required to pay her for the cash value of her 34-day "vested bank" vacation balance as the collective bargaining agreement gave BOCES discretion to deny such payment in the event an employee’s separation was “for cause.”

As to the payment of payment of the cash value of the individual’s 40-day vacation leave balance, she argued that the collective bargaining agreement "confirm[s], accept[s] and acknowledge[s] a past practice, established for a substantial period of time," in which BOCES pays retiring employees for any unused vacation leave.

The Appellate Division said that while the collective bargaining agreement itself was ambiguous in that it does not specifically require BOCES to pay retiring employees the cash value of their accumulated vacation leave balances, the relevant amendment to the collective bargaining agreement relied upon specifically references such a past practice and does not contain a separation "for cause" limitation or exception.

The court concluded that Supreme Court had “improperly dismissed” her claims that (1) BOCES must pay her the cash value of her 40-day vacation leave and (2) that she is the owner of certain personal property that BOCES unlawfully refused to return to her.

NYPPL Comments: 4 NYCRR 30.1 [setting out the relevant portion of the Attendance rules of employees of the State as the employer], provides, in pertinent part, ”No employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetency or misconduct have been served, shall be entitled to compensation for vacation credits under the provisions of this Part.” Many local civil service commissions have adopted a similar provision.

The full text of the decision is set out on the Internet at: http://nypublicpersonnellawarchives.blogspot.com/2008/07/payment-of-vacation-leave-accruals-upon.html

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of August 20 – 26, 2012 [Click on the caption to access the full report]

DiNapoli: New York’s Fiscal Picture Remains Tied to Pace of Recovery

New York State tax revenues were close to expected levels in July after falling short of estimates in May and June, according to the July Cash Report released Monday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Tuesday his office completed the following audits:

Town of Carrollton;

Town of New Scotland; and,

Town of Woodstock.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed the following audits:

Department of Health;

Office for People with Developmental Disabilities;

New York State Health Insurance Program, Empire Blue Cross and Blue Shield Payments Made to Hudson Valley Hospital Center;

New York State Health Insurance Program, United HealthCare;

New York State Health Insurance Program, Empire Blue Cross and Blue Shield Payments Made to Stony Brook; and,

Department of Motor Vehicles.

Termination recommended after a special police officer found guilty of giving false information to a police officer

Termination recommended after a special police officer found guilty of giving false information to a police officer
NYC Administration for Children’s Services v Toro, OATH Index No. #1023/12 and OATH Index #1024/12

Two Administration for Children’s Services [ACS] special officers were found to have made false statements to supervisors and to an investigator regarding their involvement in connection with the traffic stop of a relative and former ACS special officer. It was alleged that a photocopy of an unauthorized ACS identification card was displayed to a NY/NJ Port Authority police officer in the course of the traffic stop.

One of the special officers at the scene of the traffic stop displayed his ACS ID card and badge and falsely told a Port Authority police officer that his relative would be getting a new ACS ID when his problems at work were resolved.

Due to the severity of the misconduct, OATH Administrative Law Judge Faye Lewis recommended termination of employment for one of the special officers, the brother of the former officer, despite the lack of his having any prior disciplinary record. The officer resigned shortly after the decision was issued.

Judge Lewis did not recommend a penalty to be imposed on the other special officer as his employment was terminated by ACS in connection with a different matter.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1023.pdf

Discipline involving alleged off-duty misconduct

Discipline involving alleged off-duty misconduct
Local 342 v Town of Huntington, 52 AD3d 720

Local 342 brought an Article 75 action seeking to vacate an arbitrator’s award based on a “finding that the Town had just cause for suspending [an employee] from his position with the Town."

The genesis of the Town’s action: An Ordinance Inspector from the Town cited a building owned by the accused employee and his wife for numerous violations of the Huntington Town Code. Local 342 had appealed the ruling, contended that the award was irrational because the employee’s performance of his duties was completely unrelated to the off-duty misconduct of which he was accused.

Supreme Court vacated the arbitration ward on the ground that it was irrational and, therefore, the arbitrator had exceeded her authority. The Appellate Division sustained the lower court’s ruling.

The Appellate Division ruled that while the charges against the employee emanating from his ownership of premises situated in the Town were "substantial and directly affect the safety of the public," they did not relate to his character, neglect of duty, or fitness to properly discharge the duties of his position. In this regard the Appellate Division decided that the Local had met its burden of showing that the award is irrational because there was "no proof whatever” to justify the award in view of the fact that the employee’s performance of his official duties “were completely unrelated to the off-duty misconduct of which he is accused.”

If an arbitrator's award is completely irrational, "it may be said that [s]he exceeded [her] power" and thus, said the Appellate Division, Supreme Court properly vacated the award.

NYPPL Comments: In New York State, unless otherwise provided by a collective bargaining agreement or by statute, typically only incompetence or misconduct related to job performance or off-duty misconduct adversely reflecting on the public employer [see, for example, Smith v Kerick, 292 A.D.2d 223 and Wilburn v McMahon, 296 A.D.2d 805] may serve as a lawful basis for an appointing authority initiating disciplinary action against a public officer or employee.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/discipline-related-to-alleged-off-duty.html

Court will not assume that the arbitrator will be unable to fashion an appropriate remedy

Court will not assume that the arbitrator will be unable to fashion an appropriate remedy
Board of Education of City School Dist. of City of Buffalo, 53 AD3d 1071

The Buffalo Fiscal Stability Authority (BFSA) imposed a wage freeze with respect to public employees of the City of Buffalo, including employees of the Buffalo City School District. In accordance with the freeze, the District did not pay wage increases mandated by the parties' collective bargaining agreement (CBA).

The unions initially sued in federal court challenging the constitutionality of the wage freeze under the Contracts and Takings Clauses of the United States Constitution but were unsuccessful [Buffalo Teachers Fedn. v Tobe, 446 F Supp 2d 134, affd 464 F3d 362, cert denied, 127 S Ct 2133].

The unions then filed a demand for arbitration and the District filed a petition pursuant to CPLR Article 75 seeking a permanent stay of arbitration.

The Appellate Division affirmed Supreme Court’s dismissal of the District’s petition, rejecting its argument that “any remedy awarded in the arbitration would violate public policy and thus that the grievance is not subject to arbitration.” The court said while a court may stay arbitration if it "examines an arbitration agreement . . . on its face and concludes that the granting of any relief would violate public policy" it would not “presume in advance of arbitration that the arbitrator will fashion a remedy that will violate public policy.”

Neither was the Appellate Division persuaded by the District’s claim that having litigated the issue in federal court, the union’s demand for arbitration was improper as the issue had already be the subject of a judicial review. It noted that the federal litigation was limited to constitutional challenges to the wage freeze, while the grievance filed by the union concerns is whether there was a violation of the CBA between the parties.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/court-will-not-assume-that-arbitrator.html

National security trumps federal employee’s civil service protection

National security trumps federal employee’s civil service protection

Various media reports

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of  “security clearance.”

The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”

In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.

The decision is posted on the Internet at:

http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-3207.pdf

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA)

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA) 

Miller v Clinton, United States Court of Appeals, District of Columbia Circuit, Docket #10-5405

The United States Department of State terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old.* The Department contended that it was free to terminate employees like Miller on account of their age as a matter of law.**

Noting that “the necessary consequence of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex, the Circuit Court of Appeals, Circuit Judge Kavanaugh dissenting. reversed the district court’s dismissal of Miller’s petition. The court said that it found nothing in the Basic Authorities Act, 22 U.S.C. 2669(c)2(c), relied upon by the State Department for its action that abrogated the ADEA’s broad proscription against personnel actions that discriminate on the basis of age.***

Noting that the Supreme Court has recognized that the ADEA’s sweeping mandate “broadly prohibits arbitrary discrimination in the workplace based on age,” citing Lorillard v Pons, 434 U.S. 575, the Circuit Court said that “The Act’s protections for employees of the federal government are, if anything, even more expansive than those for workers employed in the private sector … means, among other things, that federal employees cannot be subjected to mandatory retirement at any age.” In other words, said the court, there is “no permissible [age] cap” for federal employment.

The consequences of the State Department’s argument, said the Circuit Court, cannot be limited to the ADEA alone as were it to accept the Department’s contention that §2669(c) creates an exemption from the ADEA, it would have to reach the same conclusion regarding both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq.3 as it could see no way to distinguish the latter two statutes from the ADEA.

The Circuit Court remanded the case to the district court “for further proceedings.”

* The ADEA [see 29 USC 14, §631(c)(1)] sets out an "age exception" for “bona fide executives or high policymakers” wherein it provides that “Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000” [§29 U.S.C. 14, §631(c)(1)]. 

** The State Department contended that the statute under which Miller was hired, §2(c) of the Basic Authorities Act, 22 U.S.C. §2669(c), permitted the Department to exempt Miller from the protections of the ADEA

*** The court explained that “Congress would not have used ambiguous language had it intended to override the ADEA is confirmed by considering the language that Congress did use when it intended to carve out exceptions from that statute … when Congress had such an intention, it made that intention clear.”

The decision is posted on the Internet at:

http://www.cadc.uscourts.gov/internet/opinions.nsf/B65D15DDE4EE579F85257A53004E90E1/$file/10-5405-1387823.pdf

Scope of arbitration

Scope of arbitration
Richfield Springs CSD v Allen, 270 A.D.2d 734

Changes in health insurance benefits may be initiated by a third party that actually provides the benefit. Does an employee organization have any right to challenge a unilateral change in the health insurance plan made by the "third party?"

This was the major issue in Richfield Springs, a case that essentially explores the issue of the scope of arbitration under a Taylor Law agreement.

The health insurance plan covering members of the Richfield Faculty Association was changed. The plan had been established under Sections 92-a and 119 of the General Municipal Law and was commonly referred to as the BOCES plan.

The Association's basic objection: there was a change of carriers responsible for administering the BOCES Plan's coverage for prescription drugs. The Association's basic concern: the coverage to be provided by the new carrier would be inferior to the coverage under the BOCES's existing plan.

The Association demanded that the former prescription drug insurance be continued and that unit members be given "reimbursement for any financial loss" that they incurred as a result of the change. To enforce its demand, the Association filed a grievance formally objecting to the change. Eventually Richfield Springs Faculty Association President Tracy Allen demanded that the Association's grievance be submitted to arbitration.

In response to the demand for arbitration, the Richfield Central School District asked for, and obtained, a stay of arbitration from a State Supreme Court judge. Its argument: the dispute was not subject to the arbitration clause of the Agreement. The Association appealed.

Initially the Association's motion to compel arbitration was granted by the Supreme Court but subsequently an amended order was issued staying arbitration based on the court's finding that the Taylor Law agreement did not bind the district to arbitrate disputes between the Association and a third party, here the "BOCES Plan" administrators.

The Appellate Division reversed. The court decided that the Association's grievance regarding the change in the carrier of the prescription drug plan covering its members is arbitrable after all.

The court¸ citing Liverpool Central School, 42 NY2d 509, explained that "[i]t is settled law that grievances arising under public sector parties' collective bargaining agreements are subject to arbitration where both arbitration of the subject in dispute is authorized by the Taylor Law (Civil Service Law Article 14) and the parties clearly agreed by the terms of their contractual arbitration clause to refer their differences in the specific disputed area to arbitration."

This view was amplified by the Court of Appeals in a subsequent ruling, Watertown Education Association, 93 NY2d 132.

Using a two-step analysis, the Appellate Division first applied the "Liverpool test" and concluded that contract arbitration clause in the contract covered "the subject the dispute." It then applied the Watertown test -- "did the parties in fact agree to arbitrate this particular grievance." It concluded that the parties had so agreed.

The court pointed to the fact that the Richfield Springs collective bargaining agreement "specifically included" a clause stating that prescription drug coverage was to be provided by "Prescription Card Services (PCS)." Further, said the court, "the Agreement expressly provided that "[a]ny change in [insurance] plan or carrier shall be by mutual agreement of the parties."

The Appellate Division said that since there is no dispute that the specified carrier of the prescription drug plan was changed from PCS to another provider without the Association's consent, this supported the claim of an "alleged violation" of the Agreement that the parties clearly and unequivocally agreed to arbitrate.

What about the district's argument that it was not compelled to arbitrate changes unilaterally initiated by a third party? The Appellate Division decided that this was irrelevant insofar as the parties to the collective bargaining agreement were concerned.

The decision indicates that the fact that the claimed reduction in employee health benefits may have been effected by a third party, here the BOCES Plan's Board of Directors, which was not a party to the collective bargaining agreement, rather than by the school district, does not determine whether or not the grievance is arbitrable.

The test applied by the Appellate Division: where the parties broadly agreed to arbitrate any alleged violation of their collective bargaining agreement or any dispute with respect to its meaning or application, and included language dealing specifically with health insurance benefits, a grievance concerning a claimed reduction in health insurance benefits is arbitrable.

Accordingly, the Appellate Division ruled that the Association's grievance was arbitrable and "the scope of the pertinent provisions of the Agreement and the merits of the grievance should be resolved by the arbitrator."

In another case involving the implementation of a contract arbitration procedure, Wayne Finger Lakes BOCES v Keller, decided by the Appellate Division, Fourth Department on February 16, 2000, the court granted Keller's motion to compel the arbitration of a contract dispute.

Keller, as president of the Wayne Finger Lakes BOCES Faculty Association, had submitted a grievance claiming that the BOCES's scheduling of a workday prior to Labor Day was in violation of an express provision in the collective bargaining agreement.

When the BOCES refused to submit the question to arbitration, Keller filed a petition to compel arbitration pursuant to Article 75 of the Civil Practice Law and Rules.

The Appellate Division pointed out the collective bargaining agreement in question defined an arbitrable grievance as "a claim by any member of the bargaining unit based on a violation of any of the specific and express provisions of this Agreement."

The court agreed with the Association that parties agreed "`by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.'"

However, there are other considerations that may preclude a unilateral change in a Taylor Law agreement from being submitted to arbitration.

Although not identified as an issue in the Richfield Springs case, as the Appellate Division, Second Department noted in Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn. (268 AD2d 523 [2000], appeal dismissed 95 NY2d 790 [2000], lv denied 95 NY2d 761 [2000]), a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration.

In Port Washington, the parties agreed to include a specific "religious holiday" provision in a Taylor Law agreement. The clause allowed employees to be absent with pay to observe certain religious holidays without charging any leave accruals. The school district then refused to implement the provision, claiming that it was unconstitutional.

The Appellate Division agreed that the provision was unconstitutional and held that the school district's refusal to implement the contract clause was not subject to arbitration under the contract's grievance procedure.

The text of the decision is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2008/06/scope-of-arbitration.html

Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a

Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a
Robert Pollock v Kiryas Joel Union Free School Dist., 52 AD3d 722

The Kiryas Joel Union Free School District and the Board of Education of the Kiryas Joel Union Free School District terminated a teacher from his position as a tenured teacher with the district. 

The teacher sued and Supreme Court annulled the district’s action and directed that the teacher be reinstated to his position retroactive to the date of his termination "with an award of back pay, interest, and such other and further benefits as would have accrued to him but for his unlawful termination of employment." The Appellate Division affirmed the lower court’s ruling.

The court pointed out that a tenured teacher was entitled to the procedural protections set forth in Education Law §3020-a.

The Appellate Division summarized the procedural elements as follows: Prior to any disciplinary action being taken against a teacher, all charges must be submitted in writing and filed with the clerk or secretary of the school district (Education Law § 3020-a[1]); then the employing board of education, in executive session, must vote as to whether there is probable cause for the charges (Education Law § 3020-a[2]); and if the board of education's determination is affirmative, a written statement specifying the charges in detail and outlining the employee's rights, including his right to a hearing, shall be immediately forwarded to that employee (Education Law § 3020-a[2]).

In contrast, the court noted that a tenured teacher may enter into a settlement providing for his or her voluntary resignation and forfeiture of protections pursuant to Education Law §3020-a only if that settlement is shown to have been voluntary and noncoerced.

Here, however, the Appellate Division said that “the evidence did not establish that the [the teacher’s] purported waiver of his rights under Education Law § 3020-a was voluntary and noncoerced.”

As the Kiryas Joel did not prefer charges or hold a hearing pursuant to Education Law § 3020-a, the Supreme Court properly determined that the appellants' actions were undertaken in violation of lawful procedure and was correct in granting the teacher’s petition and annulling Kiryas Joel’s terminating his employment.

The Appellate Division then remitted the matter to Supreme Court for the purpose of determining the amount due the teacher but also said that the “award shall include an offset for the amount of [the teacher’s] earnings from other employment since his termination by the appellants and for the amount of unemployment benefits received by the petitioner during that period.”

NYPPL Comment: On the issue of coercion in connection with an appointing authority’s threatening disciplinary action if the employee does not resign from his or her position, the Court of Appeals has held that threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges -- did not constitute coercion so as to make the resignation involuntary [Rychlick v Coughlin, 63 NY2d 643].

The decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/terminated-teacher-is-reinstated-with.html

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

DiStico v Cook, et al, USCA, 2^nd Circuit, Docket #10-4304-cv

The Circuit Court of Appeals for the Second Circuit reversed, in part, a United States District Court’s denial of motions by a school principal and two teachers for summary judgment dismissing the action against them based on their claim that they were entitled to a “qualified immunity.”

Although the court sustained the district court’s ruling denying qualified immunity status with respect to allegations that the teachers “were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault,”* the court said that the doctrine of qualified immunity** was applicable with respect to claims that the educators were deliberately indifferent to certain other allegedly racially motivated physical misbehavior by kindergarten and first-grade students.

This was so, explained the court, because there was no clearly established law permitted a finding that the educators had actual knowledge that commonplace physical misbehavior by children of this age was racially motivated.

In the words of the court, “To date, no Supreme Court or Second Circuit law clearly establishes that evidence of prior racial name-calling by unidentified kindergarten or first-grade students suffices to demonstrate that any subsequent physical misbehavior directed at the same classmate is also racially [motivated]. Indeed, we conclude that something more is necessary to support an inference that a teacher or school official actually knew such subsequent misconduct was racially motivated.”

In addition, said the court, the first-grade teacher was entitled to qualified immunity on this claim because her transmittal of parental complaints of physical misbehavior to the principal for investigation could not be deemed "clearly unreasonable" as a matter of law.

* The two teaches not entitled to qualified immunity with respect to these allegations “because there are disputed questions of fact for which the district court identified sufficient record evidence to support a verdict in favor of [DiStico].”

** Qualified immunity may be claimed by government officials as a defense to liability in an action for civil damages insofar as the act or omission involved did not violate clearly established statutory or constitutional rights that a reasonable person would have known [Harlow v. Fitzgerald, 457 U.S. 800].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/doc/10-4304comp_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/hilite/

Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding

Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding
Robert Falk v Chittenden, 11 NY3d 73

In 2003, City of Rye initiated a disciplinary proceeding against a police lieutenant  pursuant to Civil Service Law §75 and the Department's Rules and Regulations alleging the lieutenant was insubordinate towards another police lieutenant. The accused lieutenant ultimately retained Jonathan Lovett, Esq. to represent him at the disciplinary hearing on these charges.

Falk asked the hearing officer to disqualify Lovett from representing the accused Lieutenant on the ground that he had an attorney-client relationship with him and thus had "a conflict of interest" in view of the attorney's consulting with Falk in the past.. 

Lovett, on behalf of the accused lieutnant, opposed Falk's motion. The hearing officer concluded that he did not have authority to decide the motion.

Ultimately the Court of Appeals considered the matter and ruled that, indeed, there was a conflict of interest in Lovett’s representing the Lieutenant because, in the words of the court, earlier "Falk sought Lovett's legal advice at least partly in a professional capacity. The record further establishes that conversations between Lovett and Falk touched on the disciplining [the Lieutenant]. Lovett acknowledges that he rendered some legal advice on that issue, advising Falk to be wary of [the accused Lieutenant’s] First Amendment rights.  "Moreover, while disciplining [the Lieutenant] might have been a personal desire of Falk's, a request for legal advice as to whether discipline against an inferior officer is a viable course of action falls squarely within a commanding officer's professional responsibilities. 

"Accordingly, Falk in his official capacity had an attorney-client relationship with Lovett, and therefore has standing as a prior client to bring this action for declaratory judgment."

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/past-attorney-client-relationship-may.html

Jurisdiction of the Commissioner to consider an appeal concerning a matter being grieved

Jurisdiction of the Commissioner to consider an appeal concerning a matter being grieved
Mennella v Uniondale UFSD, Comm. Ed. Decision 14245

Among the issues presented to the Commissioner of Education in this appeal were two that Uniondale contended concerned grievances that Mennella had previously filed with the district.

The the Commissioner considered the district's "jurisdiction argument" -- i.e., did the Commissioner have jurisdiction to consider those issues that were "pending grievances."

The Commissioner responded to the district's challenge to his jurisdiction by noting that "[i]t is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter," citing Commack Union Free School District v Ambach, 70 NY2d 501.

The Commissioner then decided that the grievances had not raised the same issues that Mennella had raised in her appeal. Accordingly, he concluded that he had jurisdiction to consider her appeal. 

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume39/d14245.htm

Administrative Law Judge recommends a five-year debarment of public works contractor

Administrative Law Judge recommends a five-year debarment of public works contractor

Office of the NYC Comptroller v Abbey Painting Corporation, OATH Index #2544/11

OATH Administrative Law Judge Faye Lewis found that a contractor violated the NYS Labor Law by failing to pay prevailing wages and supplemental benefits to six employees on four public works contracts.

Based upon credible testimony by two of the workers, documentary evidence and videotapes made by one of the workers, Judge Lewis found that the contractor issued checks to the workers for prevailing wages and benefits, required the workers to endorse the backs of the checks but did not permit them to keep the checks, and instead paid them in cash at lower daily or weekly rates, thereby engaging in a “kickback” scheme.

As a penalty for the violations, the Administrative Law Judge recommended that the contractor be found liable for the underpayments, plus interest, plus a 25% civil penalty. Finding the contract had engaged in flagrant and willful violations on multiple contracts, deliberately falsified payroll records, and the kickback scheme, Judge Lewis also recommended a five-year debarment.   

The decision is posted on the Internet at:

http://www.nyc.gov/html/oath/downloads/pdf/benchpdf/11-2544.pdf

Drafting disciplinary charges

Drafting disciplinary charges
Fella v County of Rockland, 297 A.D.2d 813

How important it to properly draft disciplinary charges? According to the Appellate Division, even in situations where discipline may be warranted, the failure to properly word the charges and specifications may be fatal to the appointing authority's attempt to discipline an employee.

According to the court's decision, following an investigation, the Rockland County Director of Employee Rights and Equity Compliance [Director] concluded that a Rockland County employee had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant position.

As a result of the disciplinary action that followed, the employee was suspended for 30 days without pay for allegedly violating the County's Equal Employment Opportunity Policy [EEOP].

In its decision the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably inter­fering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'"

Citing DeCinto v Westchester County Medical Cen­ter, 807 F2d 304, the court indicated that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

The Supreme Court judge commented that while a decision to promote an employee with whom the target of the disciplinary action was having a romantic relationship may constitute poor judgment, it did not constitute a violation of the County's EEOP - the alleged basis for bring the discipli­nary action. As the County failed to establish any violation of its EEOP, the Supreme Court annulled the determination of the Rockland County Executive. The Appellate Division affirmed the ruling.

What lesson can be learned from this ruling?

While the charges and specifications filed against an employee should clearly apprise the individual the alleged "misconduct or incompetence" giving rise to the charge, the specifications should constitute acts or omissions that, if proven to have occurred, would support a finding that the employee was guilty of misconduct or incompetence. In any event, the employer should be certain that it can prove the allegations, whatever they may be, before initiating disciplinary action.

On the opposite end of the spectrum, where a disciplinary action has been "settled" and the penalty imposed includes placing the individual in "disciplinary probation status," the employer must make certain that in the event the employee is dismissed during this disci­plinary probation period, his or her dismissal is based on the individual's failure to meet the requirements set for the probation in the settlement agreement.

Perhaps the leading case illustrating this principle is Taylor v Cass, 505 NYS2d 929. Here a Suffolk County employee won reinstatement with full back salary and benefits as a result of a court finding that he was improperly dismissed while serving the discipli­nary probationary period.

The six-month disciplinary probation period agreed upon by the parties provided that the County could terminate the employee without any hearing if, in the opinion of his superior, the employee's job performance was adversely affected by his being intoxication while at work during his disciplinary probationary period.

The employee, while serving his disciplinary probationary period, was terminated without any hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours."

The Appellate Division ruled that the employee’s dismissal was improper because he was not terminated for the sole reason specified in the disciplinary settlement: intoxication on the job.

Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance

Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance
Shapiro v Commissioner of Labor, 52 AD3d 1139

The Unemployment Insurance Appeal Board held that the Village Administrator of the Village of Muttontown was ineligible to receive unemployment insurance benefits after determining that the Village Administrator was a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e).

The Village Administrator appealed but the Appellate Division sustained the Board’s ruling, holding that the Administrator position was untenured and that the powers and duties of the position of Village Administrator were set out in Village of Muttontown Local Law No. 1 (2005) that set out provisions establishing advisory and policymaking aspects of the job.

Accordingly, said the court, the Board properly determined that Labor Law §565(2)(e) precluded Shapiro from obtaining unemployment insurance benefits.

Comment: Other “excluded” officers and employees of a governmental entity: an elected official; a member of a legislative body or of the judiciary; a member of the state national guard or air national guard, except a person who renders such services as a regular state employee; a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency; and a person in a policymaking or advisory position, the duties of which ordinarily do not require more than eight hours per week to perform. In addition, §565(2)(g) excludes an individual who is an inmate of a custodial or penal institution.

Labor Law §511 sets out additional exclusions, including students and students' spouses at educational institutions [see §511 subdivisions 15 and 17] and independent contractors.

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/non-tenured-public-administrator.html

Updated version of Policy Bulletin 12-01 addressing a “Transfer of Function” issued by the New York State Department of Civil Service

Updated version of Policy Bulletin 12-01 addressing a “Transfer of Function” issued by the New York State Department of Civil Service

Replaces Policy Bulletin #91-01, issued on March 20, 1991; reissued on April 14, 2000

The New York State Department of Civil Service has published a revised Policy Bulletin, Policy Bulletin 12-01, addressing personnel issues involved in the event of a transfer of function from one State Department to another State Department as provided by Civil Service Law §70(2).

The bulletin provides guidelines, policies and procedures for the transfer of employees pursuant to Civil Service Law §70(2) upon a transfer of function between departments or agencies of the State. Section §70(2) provides for the transfer of necessary employees who are substantially engaged in the performance of the function to be transferred.

The bulletin cautions that there may be unique aspects to any transfer of function and suggests that any potential transfer of function should be discussed with the appropriate agency Civil Service Department Staffing Services Representative as soon as a transfer of function is thought to be a possible action.

With respect to a “Transfer of Function Pursuant to Civil Service Law Section 70(2),” Policy Bulletin 12-01 notes that Civil Service Law section 70(2) provides, in pertinent part, as follows: 

“Transfer of personnel upon transfer of functions. Upon the transfer of a function (a) from one department or agency of the state to another department or agency of the state,... provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred. As soon as practicable after the adoption of a law, rule, order or other action directing such a transfer of function, but not less than twenty days prior to the effective date of such transfer, the head of the department or agency from which such function is to be transferred shall certify to the head of the department or agency to which such function is to be transferred a list of the names and titles of those employees substantially engaged in the performance of the function to be transferred, and shall cause copies of such certified list to be publicly and conspicuously posted in the offices of the department or agency from which such function is to be transferred, along with copies of this subdivision. Any employee of the department or agency from which such function is to be transferred may, prior to the effective date of such transfer, protest his or her inclusion in or exclusion from such list by giving notice of such protest in writing addressed to the heads of the respective departments or agencies from which and to which transfer is to be made, which notice shall state the reasons for the protest. The head of the department or agency to which such function is to be transferred shall review the protest and after consultation with the head of the department or agency from which such function is to be transferred notify the protestor within ten days from the receipt of such protest of the determination with respect to such protest. Such determination shall be a final administrative determination. Failure to make such protest shall be deemed to constitute consent to inclusion in or exclusion from, as the case may be, the certified list of employees engaged in the function to be transferred. Officers and employees so transferred shall be transferred without further examination or qualification, and shall retain their respective civil service classifications and status. For the purpose of determining the officers and employees holding permanent appointments in competitive class positions to be transferred, such officers and employees shall be selected within each grade of each class of positions in the order of their original appointment, with due regard to the right of preference in retention of disabled and non-disabled veterans. Any employee who fails to respond to or accept a written offer of transfer from the department or agency to which such function is to be transferred within ten days after receipt of such offer shall be deemed to have waived entitlement to such transfer. All officers and employees so transferred shall, thereafter, be subject to the rules of the civil service commission having jurisdiction over the agency to which transfer is made. Officers and employees holding permanent appointments in competitive class positions who are not so transferred shall have their names entered upon an appropriate preferred list for reinstatement to the same or similar positions in the service of the governmental jurisdiction from which transfer is made and in the office or agency to which such function is transferred…."

Policy Bulletin 12-01 is posted on the Internet at:

http://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2012-01.htm

A PDF version of this policy statement is available on the Internet at:

 http://www.cs.ny.gov/ssd/pdf/pb12-01.pdf

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of August 13 - 19, 2012 [Click on the caption to access the full report]

DiNapoli: Investment in New York–Based Buddy Media Yields Fifteen–Fold Return

The sale of the social media marketing company Buddy Media to Salesforce.com generated an estimated $41.2 million net return from an initial investment of $2.7 million, nearly 15 times the original investment, for the New York State Common Retirement Fund, New York State Comptroller Thomas P. DiNapoli announced Thursday. The sale, announced on Monday, was for approximately $750 million.

DiNapoli: Missing Funds Concealed by Town Clerk

The clerk in the Town of Greig used funds intended for an environmental improvement project to conceal a shortage in a tax collection bank account, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The case has been referred to State Police officials for investigation.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced Monday the following audits: the New York City Department of Education, Herbert H. Lehman High School; the Division of the Lottery; the State Education Department; and, the New York City Department of Education, James Madison High School.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits: the Champion Volunteer Fire Company, Inc.; the Village of Chester; and, the City of Lackawanna. the Village of Canton; the Town of Champlain; the City of Rochester; and, the Spencerport Volunteer Fireman’s Association, Inc.

Termination for violating workplace rules defeats a claim for unemployment insurance benefits

Termination for violating workplace rules defeats a claim for unemployment insurance benefits
Smith v Commissioner of Labor, 296 A.D.2d 803

Violating the employer's policy or work rules concerning sexual harassment may not only result in the termination of the employee. It may also disqualify the individual for unemployment insurance benefits.

The Appellate Division, Third Department, said that it is clear that an employee who is terminated because he or she "knowing" violated his or her employer's established policy or workplace rules may have been dismissed for "disqualifying misconduct" for the purposes of his or her eligibility for unemployment insurance benefits is concerned. In the Smith case, the Appellate Division, citing the Campbell decision, 271 AD2d 787, demonstrated this principle in a case involving an employee's termination for violating the employer's policy prohibiting sexual harassment.

An employee was dismissed from his position for violating his employer's policy prohibiting its employees from "sending inappropriate communications by e-mail." When his application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board, The applicant sued.

According to the evidence introduced in the course of an unemployment insurance administrative hearing, the individual had sent "questionable e-mail" to his co-employees to notify them of a meeting with the e-mail's subject line reading "NUDE PICTURES - NUDE PICTURES". The applicant's explanation for this: he had used the phrase as a means of gaining the attention of his readers.

About a year later the employee was terminated following his sending an e-mail to his co-employees the employer determined had again violated its policy of transmitting "inappropriate communications by e-mail."

The Appellate Division sustained the Unemployment Insurance Appeals Board's decision that the employee had lost his employment under disqualifying circumstances -- i.e., he lost his employment due to his misconduct in violating the employer's workplace rules..

The court said that there was substantial evidence in the record to sustain the Board's determination and any issue concerning the credibility of the testimony of witness was for the Board to resolve.

A personnel management book to watch for: Help Them Grow or Watch Them Go

A personnel management book to watch for: Help Them Grow or Watch Them Go

Berrett-Koehler Publishers, ISBN-10: 1609946324; ISBN-13: 978-1609946326

This book by co-authors by Beverly Kaye and Julie Winkle Giulioni is designed for personnel officers, supervisors, managers, directors, team leaders, training personnel and others involved in personnel management and development. Focusing on employment models and personnel management situations common to the private sector, it provides insights to help management develop and retain valuable personnel that are applicable to employment in the public sector as well.

The basic premise of the authors: “Career development is one of the most powerful and underutilized levers managers have to drive engagement, retention and results. Even during challenging economic times, an organization’s best and brightest have options. Failing to help them grow can lead employees to quit and leave or quit and stay which can sometimes be even more devastating.” 

This is an easy to read handbook, with easy to apply insights, that will prove valuable to those having personnel management responsibilities as well as those aspiring to such positions.

To download an excerpt from this book to your computer, visit www.help-them-grow.com

Scheduled for publication September 17, 2012, Watch Them Grow may be pre-ordered from your local bookstore or Amazon. It will be available in a soft-cover edition and in an e-book edition.

Below is a sampling of the author’s suggestions set out in this 144 page “hands on, how to handbook” that could make a difference.

Just talk with people. In today’s workplace, everyone knows that employees own their careers. But there’s a lot you can do through conversation to help focus, energize, and activate that ownership toward satisfying results by merely talking with employees.

Keep learning about employees — and help them learn about themselves throughout their careers.  Genuine interest is too frequently in short supply, yet it goes a long way toward building loyalty, retention, and results.

Encourage and enable foresight. What people are good at, what they love, and how they like to work needs to be filtered through a foresight lens. When you help employees develop the ability to scan the environment, anticipate trends, and spot opportunities, you provide a constructive context for career development.

Leverage insights... Opportunities exist where what the employee wants to do can find expression in the real, ever-changing world of work. Help employees mine that intersection. 

Paint a more expansive picture of career development and available growth opportunities.

Most people have blinders on when it comes to how to advance their careers, and they look only upward. Encourage them to develop in all directions.

Help others think through how to turn their career goals into action. Ideas and objectives are a good starting point, but they don’t get far without the creativity of opportunity mindedness, the tactical focus of planning, and the ongoing conversations that help employees recognize and make the most of education, exposure, and experiences designed for development.

Find ways to bring development to life day in and day out. Waiting for an annual or pre-scheduled meeting to discuss career matters robs you and the employee of the energy and opportunities that are present always and everywhere. Infuse development conversations into the workflow and see how quickly they permeate the culture.

The terms of a collective bargaining agreement may permit the employee organization to demand arbitration of a grievance on behalf of retirees

The terms of a collective bargaining agreement may permit the employee organization to demand arbitration of a grievance on behalf of retirees
City of Niagara Falls v Niagara Falls Police Club, Inc., 52 AD3d 1327

The City of Niagara Falls resisted efforts by the Niagara Falls Police Club to submit a grievance concerning healthcare benefits for retired police officers to arbitration.

Supreme Court rejected the City’s application for a stay of arbitration and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that dispute between the parties over healthcare benefits for retired police officers is properly the subject of arbitration based on the terms of the parties' collective bargaining agreement (CBA).

The court pointed out that the CBA sets out a grievance procedure to resolve disputes that arises "concerning the interpretation or application of the terms of this contract or of the rights claimed to exist, hereunder." Further, said the court, the CBA specifically provides that, in the event that there is not a satisfactory resolution of a grievance, "either party may seek resolution by arbitration."

As the CBA expressly refers to retirement benefits in defining the term grievance, and the grievance procedure set forth in the CBA is "not predicated upon the status of the affected beneficiaries" – i.e., it does not distinguish between active employees or retirees – the Appellate Division concluded that the Police Club “is entitled to pursue arbitration on behalf of the retirees.”

Tenure by estoppel

Tenure by estoppel
Tucker v Bd. of Education SD #10, 189 AD2d 704

Under certain circumstances a probationary teacher may attain tenure by estoppel, sometimes referred to as "tenure by acquisition."

As the court said in Pascal v Board of Education, 100 AD2d 622, tenure by estoppel results when a school board fails to take the action required by law to grant or deny tenure and, with its full knowledge and consent, permits a teacher to continue to teach beyond the expiration of his or her probationary period.

§3031 of the Education Law requires that the board of education review "all recommendations not to appoint a person on tenure." The individual is to be advised of the date on which the board will consider the recommendation at least 30 days prior to the date of the meeting.

Another §3031 provision: the probationary teacher "may, not later than 21 days prior to such meeting" ask for a written statement setting out the reasons for the superintendent's recommendation and may file a response to such reasons "not later than 7 days prior to the day of the board meeting."

What is the potential impact on a school district if it is found that it did not comply with the provisions set by §3031?

In Tucker v Bd. of Education SD #10, 189 AD2d 704, the court found that a probationary teacher was advised that she was to be denied tenure 22 days before her probationary period was to end. The court ruled that the individual was entitled to an award of a day's pay for each day the district's notice to her that she would not be granted tenure was late. In other words, the probationary teacher was entitled to pay  corre­sponding to the number of days for which she was not given the statutory number of days of notice prior to effective date of her termination.

Implicit in this ruling is that in the event a probationary teacher is not provided with timely notice that he or she is to be denied tenure, the failure to provide such notice is not a fatal defect insofar as a defense to the individual claiming tenure by estoppel or by default is concerned, provided the teacher was given formal written notice of this deci­sion by the appropriate party prior to expiration of his or her probationary period and he or she receives payment for each day that the notice was "late."

Further, the removal of the probationary employee from the payroll does not have to take effect on or before the last day of the applicable probationary period. In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez on the payroll until the end of payroll period for administrative convenience did not result in his attaining tenure in the position. The Court held that under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that [1] it was of a short duration;[2] it was for "administrative convenience;" and [3] he was provided with timely prior notice of the termination from his probationary appointment. .

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 employee's actual removal from the payroll may occur after this date, the required notice of the termination delivered to the employee before the end of his or her probationary period is deemed timely notice of termination for the purposes of determining if the individual has attained tenure by estoppel.

Addressing another variation concerning the individual's attaining tenure in his or her position, in Yastion v Mills, 229 AD2 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of continuous service. The decision points out that Yastion's con­tinued employment was contingent on the district's receipt of federal funding and his annual employment contracts specifically indicated that "tenure does not apply to this position."