Abolishment of probationer’s position prior to attaining tenure results in his or her appointment from a preferred list as a probationer

Abolishment of probationer’s position prior to attaining tenure results in his or her appointment from a preferred list as a probationer
Dickinson v Board of Education of the Deer Park Union Free School District, et al, Decisions of the Commissioner of Education, Decision No. 16,082
[Consolidated appeals: (1) reinstatement from a preferred list and (2) probationary termination]

Mary Dickinson was appointed as a remedial reading teacher by the Deer Park Union Free School District and on April 24, 2007 was granted tenure in reading effective August 31, 2007. However, on June 30, 2007 Dickinson’s was abolished and her name was placed on the district’s preferred list for a reading teacher position.

Deer Park then appointed Dickinson to a new position as a teacher of English Language Arts (“ELA”) effective September 1, 2007, a position in a separate tenure area from reading.

In March 2008 announcements were posted for anticipated vacancies for the 2008-2009 school year, including a vacancy for a reading teacher. Later that March Dickinson was notified that her position as an ELA teacher was abolished.

After learning that school board subsequently appointed another individual, Lynn Hadity, to the vacant reading teacher position Dickinson appealed, seeking reinstatement to the reading teacher position, with back pay, seniority and other benefits.

Dickinson contended that Deer Park “failed to notify her, and then recall her to the vacant reading teacher position, in violation of Education Law §3013.”

Deer Park's defense: Although it did not make any attempt to contact Dickinson directly about the vacancy, it took steps to publicize the available position and that it was Dickinson’s responsibility to notify the district of her interest in the vacant position.

The Commissioner said that “in accordance with Education Law §3013, the board placed [Dickinson’s] name on the preferred eligibility list and [Dickinson] was entitled to be appointed to any vacancy in a corresponding or similar position in the district for seven years, or on or until June 30, 2014.

Rejecting Deer Park's argument that “it was [Dickinson’s] obligation to notify the district that she was interested in the vacancy,” the Commissioner said there was “no such obligation in the Education Law.”

On the contrary, said the Commissioner, “since the district maintains the preferred eligibility list and manages vacancies, it is implicit that the district is required to make a reasonable effort to notify eligible persons of vacancies so that such persons may be afforded the opportunity to accept or decline a position.”

Finding that Deer Park “should have made a reasonable effort to directly notify [Dickinson] of the vacant position” and in failing to do so the school district violated Dickinson’s rights to reinstatement from the preferred list, the Commissioner ruled that she must be reinstated to a reading teacher position with back pay, seniority and benefits.

Accordingly, on June 23, 2009, the school board appointed Dickinson from the preferred list and placed her in a “different probationary reading position, effective July 1, 2009.” It simultaneously rescinded Dickinson’s April 24, 2007 “conditional tenure appointment … in the reading tenure area.”

At its July 28, 2009, the board voted to terminate Dickinson’s services effective August 31, 2009 and, again, Dickinson appealed to the Commissioner.

Dickinson argued that the board violated Education Law §§3013, 3020 and 3020-a when it recalled her to a probationary reading position on June 23, 2009, rescinded its prior conditional tenure appointment and terminated her services. She asked the Commissioner to void the board’s actions.

The board responded that Dickinson “was terminated prior to the attainment of tenure and that she is not entitled to the procedural protections set forth in §§3020 and 3020-a.”

Citing In Remus v. Bd. of Educ. for Tonawanda City School District, 96 NY2d 271, the Commissioner dismissed Dickinson’s appeal. In Remus, said the Commissioner, 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.’”

Concluding that under the circumstances, Dickinson’s tenure never took effect because she had been laid off prior to "the effective date of her tenure," the Commissioner ruled that when Dickinson was recalled to a reading teacher position in June 2009, “she was a probationary employee and not entitled to the procedural protections of §§3013, 3020 and 3020-a.”

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16082.htm

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Out-of-title work

Out-of-title work
Macrae v Dolce, Appellate Division, 2nd Dept., 249 A.D.2d 476

City of White Plains firefighters brought an Article 78 action contending that the City was requiring them to regularly perform out-of-title work by serving as fire lieutenants in violation of Section 61.2 of the Civil Service Law. Section 61.2 bars out-of-title work except “during the continuance of a temporary emergency situation....”

Although the City persuaded the Supreme Court to dismiss the petition on the grounds that Macrae had failed to exhaust his administrative remedy “as required by their collective bargaining agreement,” the Appellate Division reversed the lower court’s action.

Article XVIII, the contract clause relied on by Supreme Court in making its determination, tracked the exception set out in Section 61.2 and provided that “no firefighter shall be ordered or required to perform outside of his job description except in an emergency situation.”

The Appellate Division said that this clause “was not intended to cover [Macrae’s] claim that firefighters are regularly required to perform the duties of fire lieutenant duties.” Accordingly, Macrae’s claim is outside the scope of the grievance procedure set out in the collective bargaining agreement and thus it was not necessary to “proceed to arbitration” before commencing this Article 78 proceeding.

Significantly, the Appellate Division noted that “... when the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and the parties’ reasonable expectations.”

Further, a court may not under the guise of construction, write into a contract conditions that were not included by the parties, nor may it construe contract language so as to distort the contract’s apparent meaning.

The error of the Supreme Court was that it viewed Article XVIII as requiring Macrae to file a contract grievance and arbitrate the claims. Because the alleged out-of-title work assignments were characterized as being “regularly assigned” to firefighters rather than the result of an “emergency situation,” the Appellate Division ruled that the firefighters were not compelled to “exhaust their administrative remedy” - here arbitration - before proceeding with this motion for a “declaratory judgment.”

The matter was returned to Supreme Court for its further consideration, including “the entry of an appropriate declaration.”

A union is not required to carry every grievance to the highest level to satisfy its duty of fair representation

A union is not required to carry every grievance to the highest level to satisfy its duty of fair representation
Delsante v CSEA Local 1000, AFSCME AFL-CIO, 2010 NY Slip Op 51145(U), decided on June 15, 2010, Supreme Court, Richmond County, Judge Judith N. McMahon [Not selected for publication in the Official Reports.]

Camille Delsante was serving her probationary period. After she received her first "Probationary Progress Report," which indicated that her time and attendance was unsatisfactory, she submitted her resignation stating that "I hereby offer my resignation from my position with the New York State Office of Parks, Recreation and Historic Preservation to seek other employment effective August 6th, 2008."

Kalliopi Zervos, a CSEA Labor Relations Specialist, met with Delsante to discuss her resignation and subsequently met with the Department's Associate Personnel Administrator, Joseph Lescinski, in an effort to resolve the dispute and possibly negotiate a rescission of the resignation.
After reviewing Delsante’s personnel record, Lescinski said that the appointing authority “would not rescind the resignation.” Zervos then advised Delsante that because of her probationary status she could not further pursue any grievance.

Delsante, contending that CSEA breached the duty of fair representation by failing to pursue a claim on her behalf, sued the union. In rebuttal, CSEA argued that it had fully represented Delsante but because of her probationary status the collective bargaining agreement limited the options for pursuing her claim. Accordingly, CSEA argued that it did not act in bad faith in not pursuing Delsante's claim.

Although Judge McMahon dismissed Delsante’s petition as untimely, she noted that although “academic,” Delsante’s petition would have been dismissed on the merits as CSEA “did not act arbitrary, discriminatory or in bad faith in addressing Delsante's claims.”

The court noted that with respect to claims based upon the alleged breach of a duty of fair representation, the charging party must establish that the union acted "deliberately invidious, arbitrary and founded in bad faith." Here, said the court, CSEA established that it pursued the avenues available to assist Delsante in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement Article §33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment".

Significantly, CSEA demonstrated that its representative met with Delsante; spoke with Mr. Lescinski in an effort to negotiate her reinstatement; and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited.

Citing Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, Judge McMahon said "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.”

The court granted CSEA’s motion for summary judgment, dismissing Delsante’s petition in its entirety.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51145.htm

Court holds arbitrator’s misconstruing or disregarding the contract's plain meaning of no consequence as the determination was not irrational

Court holds arbitrator’s misconstruing or disregarding the contract's plain meaning of no consequence as the determination was not irrational
Matter of Buffalo Council of Supervisors v Board of Educ. of City School Dist. of Buffalo, 2010 NY Slip Op 05898, Decided on July 2, 2010, Appellate Division, Fourth Department

Buffalo had earlier negotiated with the Council and other employee unions in an attempt to persuade the unions to accept a single health insurance carrier plan in place of the multiple health insurance carrier plan then required by each union's collective bargaining agreement.* The Council refused to consent to the change and obtained an injunction to prevent respondent from imposing the single health insurance carrier plan on its members. After the School District laid off 26 of its members, allegedly “in anticipation of the budgetary shortfall” because of such refusal, the Council filed two contract grievances.

The Buffalo Council of Supervisors prevailed but Judge Donna M. Siwek, Supreme Court, Erie County, denied the Council CPLR Article 75 petition seeking to confirm the arbitration award that directed the Board of Education to reinstate 17 of its members that had been earlier laid off.

The Appellate Division, however, said that Supreme Court was incorrect in denying the Council’s petition in its entirety as the role of the courts with respect to disputes submitted to binding arbitration pursuant to a collective bargaining agreement is limited, and a court should not substitute its judgment for that of the arbitrator. Unless the arbitration award "is clearly violative of a strong public policy, . . . is totally or completely irrational, or . . . manifestly exceeds a specific, enumerated limitation on the arbitrator['s] power," the award must be confirmed.

As the arbitrator’s interpretation of the agreement to provide the Association with “an opportunity to be heard on the layoff and method of layoff of 26 assistant principals” is rationally based on the plain language of the relevant contract provision and to “the extent, if any, to which ‘the arbitrator may have misconstrued or disregarded the plain meaning of the contract’ is of no moment where, as here, the arbitrator's determination is not irrational.”

In contrast, said the Appellate Division, Supreme Court “properly refused to confirm that part of the arbitration award determining that [the school district violated Article 4 of the CBA] and directing [the school district] to reinstate all but the nine least senior assistant principals who had been laid off."

The arbitrator explicitly recognized that school district had the authority to lay off employees for economic reasons without violating the CBA but nevertheless concluded that the Council “bore a disproportionate share of the projected budgetary shortfall.” This was was incorrect as it was based on "the financial savings that resulted from the layoffs of Council's members against the $800,000 projected budgetary shortfall directly related to its refusal to accept the single health insurance carrier plan rather than against the $12 million projected overall budgetary shortfall for the fiscal year."

The court also faulted the arbitrator for failing to account for those laid-off employees who were not members of Council in his “determination of proportionality.” Accordingly, said the Appellate Division, “that part of the arbitration award is irrational because ‘there is no proof whatever to justify [it].'”

* (see generally Matter of Buffalo Teachers Fedn., Inc. v Board of Educ. of City School Dist. of City of Buffalo, 50 AD3d 1503, lv denied 11 NY3d 708).

The Council decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05898.htm

Disciplinary penalty reduced by court

Disciplinary penalty reduced by court
Catena v Village of Southampton, App. Div., 289 A.D.2d 487

The Village of Southampton dismissed Jeffrey Catena from his position as maintenance mechanic. Although Catena admitted his guilt, he appealed, contending that the penalty of dismissal was too harsh under the circumstances.

As a result Catena won a court order directing his reinstatement to his former position. In addition, the Supreme Court justice directed that Catena be given 60 days back pay and benefits. The Village appealed, contesting only that portion of the court's ruling requiring it to pay Catena 60 days of back pay.

The Appellate Division modified the back pay award, holding that the Village only had to pay Catena 30 days of back pay.

The Appellate Division said although Catena had admitted his guilt, which was supported by substantial evidence, "under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness" citing Pell v Board of Education, 34 NY2d 222.

In modifying the disciplinary penalty, the Appellate Division commented the Catena had 10 years of satisfactory service with the Village and his misconduct was an isolated event. The Village apparently agreed that dismissal was too harsh a penalty, as it did not appeal that portion of the Supreme Court's decision directing it to reinstate Catena to his former position.

Accordingly, said the court, Supreme Court properly granted the petition reinstating Catena. But the Supreme Court was incorrect when it awarded Catena 60 days back pay and benefits. Apparently the Supreme Court based this award on its belief that Catena was suspended for 60 days without pay or benefits.

The record indicated that Catena was actually suspended without pay for a period of only 30 days. The Appellate Division ruled that under the circumstances, his suspension for 30 days without pay or benefits is an appropriate penalty.

New York State Comptroller concludes State agencies could save millions by eliminating service contracts

New York State Comptroller concludes State agencies could save millions by eliminating service contracts
Source: Office of the State Comptroller

New York State agencies could save millions of dollars annually by maximizing available revenues and by eliminating unneeded personal and miscellaneous service contracts, according to three audits released on June 30, 2010 by State Comptroller Thomas P. DiNapoli.

The full text of the Comptroller’s press release, including links to the relevant audit reports, is posted on the Internet at:http://www.osc.state.ny.us/press/releases/july10/070110a.htm

Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave

Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Joe Lane requested and was granted six months of intermittent FMLA leave to "care for " his mother, who suffered from diabetes, high blood pressure, weight loss, and arthritis. The medical certification he provided established that Lane would use the leave to assist his mother with meals and take her to doctors appointments, which he did without incident for approximately four months. Lane was absent four consecutive days beginning July 23, 2008. In violation of company policy, he did not call in his absences. When contacted, Lane explained that he took the last three consecutive days off because of flooding in the basement of his mother's home where he was staying. The company fired Lane.

Lane sued, alleging that his termination interfered with his FMLA rights as he should have been granted FMLA leave for the three-day period to clean up the flooded basement. He argued that he needed to clean up the basement because the sitting water was a breeding ground for disease that would aggravate his mother's hepatitis. An immediate problem was Lane's concession that he had not previously informed the company that his mother suffered from hepatitis. The company moved for summary judgment, arguing that the absence to clean up the flooded basement was not covered by the FMLA. The court agreed with the company.

The court initially noted that the absence to clean up the flooded basement fell outside the parameters of his approved certification for FMLA leave to provide his mother meals and take her to doctor's appointments. The court further noted that Lane had failed to offer evidence establishing that cleaning his mother's flooded basement fell with the FMLA's definition of "needed to care for" a covered family member due to a serious health condition. He did not offer evidence to back up his claim that his mother suffered from hepatitis, how such a condition constituted a "serious health condition" within the meaning of the FMLA, or how his mother's hepatitis was in danger of being aggravated if Lane did not immediately clean the flooding. Nor did he establish how cleaning the flooded basement fell within the requirement that physical or psychological care address the basic medical, hygienic, nutritional or safety needs of his mother. 29 CFR 825.124(a).

Finally, the court found that alerting his employer (after-the-fact) that he needed leave to clean his mother's flooded basement failed to place the employer on notice that the employee may have been seeking FMLA leave.

Lane v. Pontiac Osteopathic Hospital, Case No. 09-12634 (E.D. Mich. June 21, 2010).
http://scholar.google.com/scholar_case?case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Mr. Bosland Comments: The decision demonstrates that, while broad, the "caring for" component of FMLA leave is not unlimited. Note the court's interest in the absence of evidence establishing how cleaning the flooded basement "cared for" the mother's condition. Courts have generally favored activities that directly provide care to the seriously ill family member over those, such as in this case, that may only indirectly provide physical or psychological care. Arguably, by cleaning up the mess himself, Lane may have relieved his mother from performing an activity that, with arthritis, she could not perform easily, if at all. He may have also provided her psychological care by relieving her of this responsibility. Sitting water may have presented safety issues as well. Apparently, these arguments were not sufficiently developed for the court.

One could argue that the court's interpretation of "caring for" is overly restrictive. For example, Lane goes over to his mother's home to make her a meal. In addition to providing her with physical care (the meal), he is providing her with psychological care by being with her. While his mother eats he goes down into the basement for something. In so doing, has he lost FMLA protection because he momentarily left the room where his mother is eating? Is physical and psychological care so limited? If Lane made lunch and, while his mother was eating, he slipped out of the house to get the mail from the mailbox at the curb, can he be fired for exceeding his medical certification? What if Lane was taking care of his mother a great distance from where he lived and worked and could not get back to work easily. Do FMLA protections turn on and off like a light switch depending on whether Lane is in the room with his mother? Is that what the FMLA is all about?

At the end of the day, Lane's failure to call-in his absence for four consecutive days without a credible explanation likely doomed his FMLA case.

Is there a right to §207-c benefits if an individual refuses to perform light duty?

Is there a right to §207-c benefits if an individual refuses to perform light duty?
Matter of Park v Kapica, 8 N.Y.3d 302

John Park, a police officer employed by the Town of Greenburgh, underwent surgery in June 2002 after sustaining an injury in the line of duty. He requested, and was approved for, General Municipal Law §207-c(1) benefits.

In March 2003, the Town of Greenburgh’s medical examiner said that Park could return to work in a sedentary capacity. Accordingly, Parks was told to report for light duty starting April 21, 2003.

Park objected and submitted a report from his treating physician indicating that he had a “permanent total disability”* and requested a hearing on the issue of his ability to return to work.

A hearing was scheduled and a hearing officer was designated. Park, however, objected, contending that “any hearing had to be conducted before the Town Board pursuant to the Westchester County Police Act [WCPA].”** Supreme Court denied Park's application to stay the hearing. Park, however, refused to participate and the hearing was held in absentia.

The Hearing Officer concluded that Park (1) was fit to return to light duty, (2) that his refusal to do so was without justification, and (3) that the Town could recoup any §207-c benefits it paid to Park from April 21, 2003 until such time as he returned to work.

Rather than return to work, Park retired on August 26, 2003.

Park then filed a second lawsuit, seeking, among other things, the annulment of the Hearing Officer's determination that the Town could recoup §207-c benefits paid to him.

Supreme Court granted the petition, ruling that the Town had no authority to recoup payments made to Park prior to the Hearing Officer's finding that he was fit for light duty and the Appellate Division affirmed the lower court’s ruling.

Ultimately the Court of Appeals was asked to review these rulings.

The court initially observed that:

1. The continued receipt of §207-c disability payments is not absolute, however. A municipality is entitled to its own medical examination of its employee and if, in that physician's opinion, the officer can perform “specified types of light duty,” payment of the full amount of salary or wages may be discontinued should the officer refuse to return to work if a light-duty assignment “is available and offered to him”

2. The right to receive §207-c disability payments constitutes “a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated,” and a due process hearing is triggered when an officer on §207-c status submits evidence from his treating physician supporting the officer's claim of “continued total disability.”

In response to Park's claim that the Town should have provided for his §207-c hearing in accordance with §7 of the WCPA, the Court of Appeals said that §7 applies to disciplinary actions and because Park was not subject to discipline or to the threat of termination for contesting the medical examiner's light-duty determination, neither it, nor Civil Service Law §75, applied in this situation.

It ruled that the Appellate Division “erred in stating that Civil Service Law §75 should be read in conjunction with General Municipal Law §207-c, a holding that implies that all due process hearings pursuant to §207-c must comply with Civil Service Law §75.”

Such is not the case, said the court. It was only concerned with whether Park was afforded due process in contesting the Town’s medical examiner's determination, which bears no relation to a disciplinary proceeding. However, the court did affirm the Appellate Divisions order “because the procedure employed by the Town concerning Park's challenge to the medical examiner's light-duty determination comported with procedural due process.”

In the absence of a statutory prescription with respect to conducting such hearings or a procedure established by collective bargaining pursuant to the Taylor Law for this purpose, the Court of Appeals said that “the Town was free to fashion a hearing remedy so long as its procedure afforded Park due process.”

Finding that Park's interest in the continued receipt of disability benefits was adequately protected by the Town's due process procedure, the court ruled that while he elected not to participate in the hearing, Park was, nevertheless, given the opportunity to contest the Town’s medical examiner's light-duty determination by presenting his own witnesses and cross-examining the Town's witnesses.

As to the Town’s right to recoup §207-c payments made to Park between April 21, 2003, the date he was initially directed to begin his light-duty assignment, and August 4, 2003, the date he was directed to begin his light-duty assignment after the Hearing Officer affirmed the medical examiner's findings, the Court of Appeals ruled that there was no such right available to the Town.

In the words of the court: “There is no provision in §207-c allowing the recoupment of disability payments made to an officer who is later found to be able to work.”

In contrast, a municipality may discontinue disability payments once its medical examiner finds that the officer can perform a light-duty assignment and the officer “refuse[s] to perform” that duty.” Should an officer refuse to return to work and fail to provide medical proof that he is unable to do so, the medical examiner's opinion is dispositive and §207-c disability payments may be discontinued without a hearing.***

However, a municipality is not permitted to recoup §207-c payments where, as here, the officer avails himself of due process protections by challenging the appointing authority’s medical examiner's determination because such a challenge cannot be equated to his or her refusal to return to duty.

* §207-c(2) provides, in pertinent part, that “Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement … If application for such retirement allowance or pension is not made by such policeman, application therefore may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed.”

** Section 7 of the Westchester County Police Act, entitled “Discipline and charges,” states that no member of a police department “shall be fined, reprimanded, removed or dismissed” until the charges have been investigated, and further provides that the trial of those charges “shall not be delegated and must be heard by the town board or the full board of police commissioners.”

*** The Court of Appeals noted that its decision was based “solely” on it reading of the applicable statutes and it should not be viewed as suggesting that “there would be any constitutional bar to a recoupment of benefits in a situation like this one, had the Legislature so provided.”

Agreeing to a disciplinary suspension without pay in exchange for a postponement of the scheduled disciplinary hearing

Agreeing to a disciplinary suspension without pay in exchange for a postponement of the scheduled disciplinary hearing
Wachtmeiser v Andrus, App. Div., Third Dept., 279 A.D.2d 822

Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without pay for up to thirty days pending resolutions of the disciplinary action. If the final determination is not made on or before the thirtieth day, the individual must be restored to the payroll.

In Margaret Wachtmeiser's case, the Clinton County Director of Public Health, John V. Andrus, followed the procedure set out in Section 75. Charges were filed against Wachtmeiser on January 27, 1998 and she was suspended without pay for 30 days in accordance with Section 75(3) of the Civil Service Law. She was restored to the payroll on February 26, 1998.

April 2, 1998, however, Wachtmeiser was again removed from the payroll, this time in accordance with the terms of her signed "release." The release provided that Wachtmeiser agreed to be removed from the Department's payroll pending a final determination of the disciplinary proceeding in exchange for an adjournment of her scheduled hearing.

As the Wachtmeiser decision demonstrates, the employer may remove an individual from the payroll pending a final determination of disciplinary charges in the event the employee elects to postpone the hearing.

If an employee seeks such a postponement, typically he or she will be required stipulate to being removed from the payroll for a period equal to the length of postponement of the hearing he or she requests. In contrast, if the appointing authority seeks to postpone the hearing, it could not condition the adjournment on the removal of the employee from the payroll.

Wachtmeiser, a public health nurse, was charged with, and found guilty of, numerous specifications of misconduct in connection with her performance of her duties. Andrus adopted the hearing officer's findings and imposed the penalty recommended: termination. After being dismissed from her position, Wachtmeiser sued for her back pay for the period she was suspended without pay in excess of thirty days.

The Appellate Division rejected Wachtmeiser's claim for back pay for this period as she had been removed from the payroll consistent with the terms of the "release." It had no difficulty with concept of suspending the employee without pay under such circumstances.

The court also rejected Wachtmeiser's appeal in which she claimed that she was coerced into executing the release, finding that the record fails to substantiate her conclusory allegation on this point.

Further, the court rejected Wachtmeiser's contention that the hearing officer's finding were not supported by substantial evidence, commenting that the record contained testimony provided “painstaking detail regarding each of the specifications of misconduct set forth in charges 1 through 5 [when] coupled with the voluminous documentary evidence [in the record] ... provides overwhelming evidence of [Wachtmeiser's] misconduct.”

Failure to maintain a residence within the employer’s geographic jurisdiction deemed disqualifying misconduct for unemployment insurance purposes

Failure to maintain a residence within the employer’s geographic jurisdiction deemed disqualifying misconduct for unemployment insurance purposes
Matter of Dwaine E. Williams v Commissioner of Labor, 47 AD3d 994

Dwaine E. Williams, a school safety agent with the New York City Police Department for some six years, lived in Westchester County. The City discharged Williams from his position for failing to comply with a provision of the New York City Administrative Code that mandated that he maintain a residence within New York City.

His application for unemployment insurance benefits was rejected on the grounds that his employment was terminated due to misconduct; i.e., failing to comply with his employer’s residency rules.

Finding that City’s residency requirement is a reasonable rule that Williams elected to ignore, the Appellate Division sustained the rejection of Williams’ application for unemployment insurance benefits, holding that "[i]t is well settled that the failure to comply with an employer's reasonable rules can constitute misconduct disqualifying one from receiving unemployment insurance benefits."