ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

October 25, 2010

Court vacates dismissal as too harsh a penalty after considering employee's work record

Court vacates dismissal as too harsh a penalty after considering employee's work record
Currithers v Mazzullo, 258 AD2d 460

School bus driver Steadman Currithers pled guilty to driving while his ability was impaired. He was served with disciplinary charges of misconduct and incompetence based on this conviction. Found guilty, the penalty imposed was dismissal from his position as school bus driver. Currithers appealed and won an annulment of the penalty the district had imposed.

The Appellate Division ruled that although Currithers was guilty as charged, the penalty imposed offended the Pell standard [Pell v Board of Education, 34 NY2d 222].

The court said that while the finding that Currithers was guilty of misconduct is supported by substantial evidence, under all of the circumstances of this case, “including the fact that this incident was an isolated act in an otherwise unblemished record of 15 years employment, and in light of [Currithers] unblemished driving record on and off the job prior to this incident, the penalty of dismissal is shocking to one’s sense of fairness” [the Pell standard]. It remanded the matter to the district with instructions that it “impose a new penalty other than dismissal.”
NYPPL

Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement

Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement
Marino v Hauppauge UFSD, 262 AD2d 321

If a public employee claims that some action by his or her employer violated his or her statutory rights, may the employer insist that the issue be resolved by the employee filing a grievance under a Taylor Law contract grievance procedure? No said the Appellate Division in the Marino case.

Frank Marino sued his employer, the Hauppauge Union Free School District, alleging that the district had violated his rights under Section 3013 of the Education Law by reducing his annual salary by $4,148.* The district persuaded a State Supreme Court judge to dismiss Marino’s complaint, contending that Marino complaint should be resolved under the grievance procedure set out in the Taylor Law agreement then in place.

The Appellate Division overturned the lower court’s dismissal of Marino’s Article 78 action. The Appellate Division noted that the collective bargaining agreement did provide a grievance procedure to resolve “any dispute between the parties concerning the interpretation of the terms and conditions of [the] agreement”. However, said the court, Marino had not raised any issue relating to the terms and conditions of his employment as set out in the agreement. What he was attempting to do was to “vindicate rights conferred upon him by Education Law Section 3013(1).”

The courts have consistently ruled that the statutory rights of teachers whose positions are abolished pursuant to either Sections 3013 or 2510 of the Education Law may not be changed by a collective bargaining agreement.

For example, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, 539 NY2d 83, the Appellate Division, citing Cheektowaga v Nyquist, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority for the purposes of layoff.

Considering a conflict between the CAB and the Civil Service Law, in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 N.Y.3d 465, the Court of Appeals said that where “the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.”

The same is true with respect to Taylor Law contract provisions that adversely impact upon layoff rights vested in employees in the classified service by Sections 80 or 80-a of the Civil Service Law [see Plattsburgh v Local 788, 108 AD2d 1045].

The Appellate Division, citing a number of cases including Matter of Board of Educ. of Barker Cent. School District, 209 AD2d 945, concluded that Marino “had every right to seek redress for the alleged violation of his statutory rights” by bringing a timely Article 78 action, “even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”

Why? Because, the court explained, “the issues presented and the remedies sought in each forum were separate and distinct,” quoting from England v Commissioner of Education, 169 AD2d 868, among other cases, in support of its ruling.

* Section 3013 deals with layoff upon the abolishment of a position by a school district or a BOCES and provides, in pertinent part, for the reinstatement of a person who has been laid off to “an office or position similar to the one which such person filled without reduction in salary or increment....”
NYPPL

Termination after failing the National Teacher’s Exam upheld

Termination after failing the National Teacher’s Exam upheld
Feldman, et. al., v Bd. of Ed., City of New York, 262 AD2d 276

Because they had not passed the National Teacher’s Examination, the New York City Board of Education terminated the teaching license it had issued to Sandra Feldman and a number of other teachers employed by the board. The teachers sued, contending that the board’s action in terminating their respective teaching licenses was arbitrary and capricious.

The Appellate Division noted that there were two defects in the action; one procedural and the other substantive.

As to the procedural defect, the court ruled that Feldman’s Article 78 action was untimely. The decision points out that Section 217 of the Civil Practice Law and Rules provides that “a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner”.

According to the ruling, a determination is considered final and binding for the purposes of Section 217 when it has an impact upon the petitioner and when he or she knows he or she is aggrieved by the administrative decision.

As to the substantive issue [e.g., the merits of the complaint], the court concluded that the board action was neither arbitrary nor capricious since the several teachers “admittedly failed to achieve a passing grade on the National Teacher’s Examination within five years of the issuance of their licenses” despite the requirement that they do so.
NYPPL

October 22, 2010

Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct

Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct
Acosta-Rodriguez v City of New York, 2010 NY Slip Op 07470, Decided on October 21, 2010, Appellate Division, First Department

An employee of the New York City Board of Education [BOE] was alleged to have sexually abused two students. When the parents of the children sued, the School Board argued that its was not liable because the abuse by its employee “was not committed in furtherance of school business and was done for [the employee’s] personal reasons.”

The Appellate Division agreed, holding that the BOE cannot be held liable under the theory of respondeat superior.*

The parents also contended that the employee was negligently hired, supervised or retained by BOE. However, said the Appellate Division, the parents “failed to raise a factual issue as to whether, at the time of the employee's hiring, BOE was on notice of facts triggering a duty to inquire further, or to contradict BOE's claim that it conducted its standard pre-employment investigation of the employee.”

As to the parents’ evidence that the BOE was on notice, either actual or constructive, of the employee's propensity for sexual abuse of minors because he “bought pizza for the students and observed them at play,” the court held that such activities “does not constitute notice of the employee's proclivity for sexual abuse.”

The Appellate Division also commented that the incident had occurred off school grounds and that there was nothing in the record indicating that BOE released the students to the employee or even knew that the three were together.

Accordingly, the court concluded that “there are no triable issues as to whether [the students’] injuries were caused by a failure of adequate supervision or a disregard on premises that should have alerted [the BOE] to a hazardous situation.

* The common-law doctrine that holds that an employer is liable for the actions of an employee when the employee's actions are within the scope of the individual's duties.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm
NYPPL

Employment application fraud leads to disqualification for employment

Employment application fraud leads to disqualification for employment
Schindlar v Village of Lloyd Harbor, 261 AD2d 626

Providing false information in his application for appointment as a police officer resulted in Dennis Schindlar’s disqualification and removal from his position with the Village of Lloyd Harbor.

The Suffolk County Department of Civil Service, after holding a hearing, revoked the Schindlar’s certification and appointment as a police officer.

The department’s hearing officer determined that Schindlar had “perpetrated a fraud in claiming residency in the Incorporated Village of Lloyd Harbor.” Schindlar had presented evidence that he resided in Lloyd Harbor, including copies of his driver’s license and voter registration cards. There was also testimony by the owner of the property on which he allegedly resided.

Section 50.4(f) of the Civil Service Law provides for the disqualification of individuals “who has intentionally made a false statement of any material fact in his [or her] application.” A pre-disqualification hearing may be provided where appropriate, it but is not mandated by Section 50.4.

The key due process element in Section 50.4 provides that “no person shall be disqualified ... unless he [or she] has been given a written statement of the reasons ... and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The Appellate Division noted that notwithstanding such evidence submitted by Schindlar, the hearing officer “credited the persuasive documentary evidence to the contrary.” The court said that it was well established that a reviewing court may not weigh evidence or reject the choice made by the hearing officer, especially where there is conflicting evidence and room for choice exists.

Finding that there was substantial evidence in the record to sustain a finding that Schindlar did not in fact reside in Lloyd Harbor during the period in question, the court affirmed Schindlar’s disqualification by the department.
NYPPL

Administrator' terminated after being found guilty of ignoring the Civil Service Law with respect to the appointment of personnel

Administrator' terminated after being found guilty of ignoring the Civil Service Law with respect to the promotion of personnel
Gillen v Smithtown Library, 254 AD2d 486, Affirmed, 94 NY2d 776

An administrator who ignores the mandates of the Civil Service Law when it comes to promoting staff members places himself or herself in harms way, as the Gillen case demonstrates.

Thomas G. Gillen, director of the Smithtown Library, was terminated from his position by the Smithtown Library Board of Trustees after being found guilty of illegally promoting employees in contravention of the Civil Service Law.

The Appellate Division rejected his appeal seeking to overturn the disciplinary action taken against him. As to the penalty of termination, the court said that when considered in light of all of the circumstances of this case, dismissal “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” citing the Court of Appeals ruling in Pell v Bd. of Education, 34 NY2d 222.

The ruling also noted that “a high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed, citing Washington v Dolce, 208 AD2d 937.

In affirming the Appellate Division’s decision, the Court of Appeals said:

"Given [Gillen's] repeated violation of the Civil Service Law, it cannot be said that the penalty imposed is 'so disproportionate to the offense ... as to be shocking to one's sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222)....'

"That the Appellate Division in remanded the matter for the imposition of a new penalty after dismissing four of the charges does not change our decision. A reviewing court generally 'will not presume to determine the precise sanction to be imposed' (Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285).

"Thus, where, as here, several charges have been dismissed on appeal, an appellate court will often remit the matter for an appropriate penalty (id.; see also, Matter of Ahsaf v Nyquist, 37 NY2d 182, 186). Our standard of review remains the same based on the charges sustained, not on those dismissed."
NYPPL

Recovering missing public funds

Recovering missing public funds
Utica Mutual Insurance Co., as the Subrogee of the Town of Sand Lake v. Laura Avery, 261 AD2d 802, motion for leave to appeal denied, 93 NY2d 818

From time to time, a public employee resigns from his or her position after some money is found to be missing. The Utica Mutual decision provides some insights as to what might follow such an event.

A State audit had revealed discrepancies in the financial records of the Town of Sand Lake’s Justice Court, including missing funds in excess of $3,000. Town officials were sufficiently convinced that the clerk of its justice court, Laura Avery, was responsible for the loss that it demanded, and received, her resignation. It later was able to ascertain the precise amount that was missing -- $3,648 -- and filed a claim with its insurance company, Utica Mutual, for the loss. Utica Mutual paid the town $3,648.

Utica, as the town’s subrogee [standing in the place of], then sued Avery to recover the money it paid to the town. Instead of filing an answer, Avery moved to dismiss Utica’s action on the ground it was untimely. A State Supreme Court judge agreed and applying the six-year Statute of Limitations (CPLR 213 (a),[1]), dismissed Utica Mutual’s claim as time barred.

Utica Mutual appealed and lost. The Appellate Division said that “the sole issue on this appeal is whether Supreme Court correctly determined the date on which plaintiff’s cause of action accrued.” Utica had argued that the limitations period did not begin to run until the date on which Sand Lake received the Department of Audit and Control’s official audit since prior to that date the Town’s liability for the missing funds was not fixed.

Not so, said the Appellate Division, affirming the lower court’s ruling. It said that Utica’s cause of action accrued when all events essential to the claim were present so that Utica would be entitled to judicial relief. Presumably Utica would have won its lawsuit against Avery to recover the money it had paid to Sand Lake had it filed a timely action.

The Appellate Division suggested that even a shorter statute of limitations might apply is such situations, commenting that “arguably, the mishandling of the funds in question fits the definition of conversion” [stealing] ... for which the shorter three-year Statute of Limitations of CPLR 214 (3) would apply.” However, both parties adopt the position that, in the absence of a specific Statute of Limitations for an action to recover embezzled funds, the applicable limitations period is six years pursuant to CPLR 213 (1).
NYPPL

Disciplining an employee for off-duty misconduct

Disciplining an employee for off-duty misconduct
Anderson v Safir, App. Div., 260 AD2d 179

The Commissioner of Police found that Michael Anderson and some other New York City police officers were guilty of off-duty misconduct when they “wrongfully placed civilians in fear of imminent physical injury by displaying their guns and using racial epithets.”

The Appellate Division sustained the Commissioner’s dismissing the officers, commenting that the finding of their guilt was supported by substantial evidence, including, in particular, that the officers car pool together and that one of them owned the car described with specificity to the 911 operator at the time of the incident.

Finding that there was no basis to disturb Commissioner’s findings regarding credibility concerning the complainants’ identification testimony, the court confirmed the penalty imposed -- termination.
NYPPL

Failing to participate in a counseling program results in disciplinary action

Failing to participate in a counseling program results in disciplinary action
Siciliano v Safir, 259 AD2d 366

New York City police officer Matthew Siciliano was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.

Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.

The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”

The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving Department’s requirements for order, authority and discipline. It ruled that the Department’s determination to dismiss Siciliano is entitled to “great leeway.”

Commenting that the penalty imposed did not shock its sense of fairness, the Appellate Division dismissed Siciliano’s appeal.
NYPPL

Terminating an educator during his or her probationary period

Terminating an educator during his or her probationary period
Green v Bd. of Ed., 262 AD2d 411

The Green decision succinctly sets out the basic guidelines used by courts in determining if an educator was lawfully terminated if he or she was dismissed during, or at the end of, his or her probationary period without being given a statement of the reasons for the termination or an administrative hearing.

Verna Green, a New York City School District probationary teacher, was dismissed by the Board of Education during probation.

The Appellate Division, affirming a lower court’s dismissal of Green’s Article 78 action seeking reinstatement, said:

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

2. The former probationary employee has the burden of establishing that his or her termination was made in bad faith or for illegal reasons;

3. The former probationer’s conclusory allegations that the employer acted in bad faith do not meet this burden or warrant a hearing.

In another probationary termination case, Williams v Franklin Square Union Free School District, 261 A.D.2d 628, the Appellate Division dismissed an Article 78 action brought by Jeanne M. Williams. Williams had asked the court to order the district to “restore [her] to her position as an elementary [school] teacher.”

The court dismissed her petition, stating that there was no evidence in the record that the district’s denying Williams tenure was for a legally impermissible reason. In addition, the Appellate Division held that “there is no evidence that [Williams] acquired tenure by estoppel.”
NYPPL

October 21, 2010

Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun

Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun

Materials For the Arts (MFTA) is a program within the New York City Department of Cultural Affairs that collects donated materials and makes them available to not-for-profit arts groups.

Jesse Charland managed a warehouse where items donated to MFTA, including theatre props, are inventoried and stored.

Charland was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he had pointed a replica of a handgun at a supervisor while making threatening comments about “going postal” and needing only “one bullet.”

OATH Administrative Law Judge Kevin Casey credited the supervisor's testimony that the gun looked real and that she felt threatened.

As for Charland's claim that he was only joking, even Charland's witness acknowledged that if one was unfamiliar with Charland's sarcastic sense of humor, “you would take” it as a threat.

ALJ Casey also found that Charland disobeyed orders and was discourteous. The penalty recommended by the ALJ: termination.

Other disciplinary actions taken against public employees involved in “practical jokes” or “horseplay” include:

1. The Corning City School District charging a teacher with using physical force against a student -- pinching the student with a pair of pliers. Disciplinary Hearing Officer James R. Markowitz did not accept the teacher's efforts to excuse the episode as merely classroom "horseplay" and suspended the teacher for two weeks without pay. [NYS Department of Education Disciplinary File 3310].

2. Disciplinary action taken against a supervisor who engaged in a number of off-duty practical jokes resulted the supervisor’s demotion and being placed on a disciplinary probation for six-months [Sguanci v Commissioner of Public Works, Broome County, 158 AD2d 788].

3. A teacher being suspended without pay for one-year after playing practical joke on a supervisor using a fake spider. [Decisions of the Commissioner of Education, 10842].

The decision, Dept. of Cultural Affairs v Charland, OATH #1766/10, is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1766.pdf
NYPPL

Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law

Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law
Toshunbe and Buffalo Board of Education, 32 PERB 3026

Doris Toshunbe was served with disciplinary charges alleging 21 counts of incompetence, 12 counts of insubordination and 11 counts of misconduct. The arbitrator, “apparently ... based on the disciplinary charges before him ... found that Toshunbe was ‘stubborn, abstinent [sic] and lack [sic] respect for authority.’” He ordered that Toshunbe be suspended for two weeks without pay, which the district could deem “a progressive disciplinary action.”

Toshunbe challenged the arbitrator’s decision by filed an improper practice charge with PERB, alleging “improper motivation” by the district. After discussing a number of the procedural issues concerning timeliness, PERB rejected her petition on the basis of “lack of jurisdiction.”

PERB said that “review of an arbitrator’s award is not available in an improper practice proceeding against an employer ... review of that award is available under Civil Practice Law and Rules [CPLR] Article 75.”

Explaining that “to avoid our becoming a substitute for or an alternative to the statutory review procedures, a CPLR proceeding should be the preferred mechanism for the review, modification or vacatur of disciplinary arbitration awards, absent extraordinary circumstances,” PERB sustained the Director of Public Employment Practices and Representation’s determination.
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Selection of arbitrators

Selection of arbitrators
Suffolk Co. PBA v Suffolk, Sup. Ct., Suffolk Co., [Not selected for publication in the Official Reports]

May a legislative body limit the parameters used to select arbitrators in connection with collective bargaining, impasse resolution and contract administration?

Yes, if the reasons are legitimate and the action is consistent with the relevant collective bargaining agreement, the Supreme Court of Suffolk County ruled. Suffolk County PBA sought court review of Suffolk County’s Resolution No. 377-1998, in which the county legislature set out a policy “for the selection of arbitrators in all areas of collective bargaining.”

The reason given for the resolution: The county legislature said that the county has been adversely affected from a fiscal standpoint by the selection of arbitrators for the handling of binding arbitration matters, for collective bargaining agreements voluntarily submitted to arbitration, and for the resolution of labor disputes because of a predilection towards choosing either the same arbitrator or an arbitrator who has used arbitration decisions from an adjacent County rendered by him or her as a ping-pong to ratchet up labor benefits in Suffolk County.

The resolution stated that the county would not consent to use arbitrators who had been involved in any proceeding in which Nassau County was a party during the prior three years.

The Taylor Law contract between the Suffolk County PBA and the county provided that the American Arbitration Association (AAA) would appoint an arbitrator to conduct hearings pursuant to AAA’s voluntary rules in disciplinary proceedings and grievance proceedings.

These rules provided that in the event a party does not return the list of arbitrators sent to it by AAA, all persons are deemed acceptable to act as arbitrators. The rules further provide that if an appointment cannot be made from the submitted lists, the administrator of the AAA may appoint “other members of the panel without submission of any additional list.”

According to the decision, if the county is unable to select any arbitrator as a result of Resolution 377-1998, the AAA may appoint arbitrators without the consent of the county under the terms of the Taylor Law agreement.

PBA sued, claiming that the resolution constituted a unilateral modification of the grievance procedures for both contract violations and employee discipline in violation of the Taylor Law. Supreme Court Justice Cannavo noted, “once the parties have reached an agreement and entered into a collective bargaining agreement, the public employer cannot unilaterally change a term or condition of the contract, citing Roma v. Ruffo, 92 NY2d 489.

However, the court said that the resolution did not change any of the express provisions of the contract by limiting the selection of an arbitrator. According to the ruling, “the PBA and the County bargained and reached an agreement whereby the County was given the unfettered ability to reject arbitrators for any or no reason.”

This, said Justice Cannavo, meant that the county’s ability to reject an arbitrator was not affected by the adoption of Resolution 377-1998 insofar as it limits the selection of arbitrators. Therefore, the resolution did not constitute a unilateral change in the terms of the contract.

The court dismissed the PBA’s petition. It found that the underlying purpose of the resolution “is to control the County’s selection of arbitrators to prevent the ‘ratcheting’ up of salaries in those situations where the County has any discretion concerning the choice of arbitrators, and this bears on a legitimate concern of government.”
NYPPL

Recalling firefighters on General Municipal Law Section 207-a disability leave to report for light duty

Recalling firefighters on General Municipal Law Section 207-a disability leave to report for light duty
Cohoes v Local 2562, IAFF, Court of Appeals, 94 NY2d 686
Barnes v Council 82 [Monroe], Court of Appeals, 94 NY2d 719

What is the proper procedure for a municipal employer to a call disabled firefighter or police officer back to work for a light duty assignment? The Cohoes and Monroe cases offer some of the clearest judicial views on the administrative processing of GML Section 207-a/207-c matters involving light duty.

The Cohoes case

In this appeal, the Appellate Division considered the authority of a municipality to direct a firefighter receiving Section 207-a benefits to report for light-duty assignments.

Disagreeing with some of the rulings made by a state Supreme Court justice, the Appellate Division set out a number of guidelines for recalling an individual to perform light-duty. The Court of Appeals affirmed the Appellate Division’s ruling.

The decisions offer guidance on suspension of General Municipal Law Section 207-a benefits should the individual fail to report for duty, and explains when due process is required. The court set out the following guidelines:

1. The municipality must have the firefighter examined by the municipality’s physician to determine the individual’s fitness.

2. If the report indicates that the firefighter is fit to return to light-duty, he or she may be directed to report for appropriate assignment. Unless a Taylor Law agreement requires some administrative hearing, administrative due process does not require that the municipality hold a hearing prior to its issuing its return to work order.

3. If the firefighter contests the municipality’s directive to report for light-duty, he or she must submit documentation regarding his or her alleged medical inability to perform light-duty tasks.

4. If such documentation is submitted, the municipality is required to conduct an “evidentiary hearing” before it may take any action to modify the Section 207-a benefits being provided to the firefighter.

5. If the firefighter fails to submit medical evidence that he or she is unable to perform light-duty, he or she is entitled to a hearing before a final termination of Section 207-a benefits is imposed. However, the municipality is authorized to immediately withhold payroll checks because the firefighter failed to report to work as he or she did not provide the necessary “contrary medical documentation” required.

The Appellate Division also said that a disabled firefighter who objects to his or her recall for light-duty and submits the required medical documentation may not be required to charge his or her continued absence to accrued leave credits pending a final determination of their case.

Significantly, the court said the rights of individuals who provided “contrary medical documentation” are different from those of individuals who did not submit such documentation.

For instance, individuals who fail to submit such documentation may have their Section 207-a benefits discontinued immediately and must charge their continued absence to their leave credits, it any, if they wish to remain on the payroll.

But the municipality may not require the individuals who provided the required medical documentation to charge their absence to their leave credits in order to remain on the payroll, the court said. It ruled that such action would be improper because the municipality controls the time frame to be followed in completing the required administrative process.

Another issue involved the union’s demand that recall directives be submitted to arbitration. The Appellate Division observed that Section 207-a “does not dictate the procedures to be followed when a firefighter requests a due process hearing to challenge a municipality’s medical opinion.”

While there is no public policy impediment to the arbitration of light-duty disputes where the parties have so agreed, it is not available in instances where there is no such agreement between the parties in place, said the court.

The decision notes that the Taylor Law contract between the parties in the Cohoes case did not specifically provide for the arbitration of any challenge to the City’s directing disabled firefighters to report for light-duty.

Accordingly, said the court, “with no reference to light-duty assignments and no procedure described for contesting [such determinations], petitioners’ dispute does not fall within the terms or conditions of employment encompassed by the broad definition of grievances in the parties’ contract.”*

Do the rules outlined above also pertain to cases in which a municipality orders a firefighter to report for full duty? And do these apply to cases under GML Section 207-c, a parallel law that covers police officers? The court did not address those questions, but presumably the same procedures and guidelines would apply in such cases as well.


The Monroe case


The Monroe case suggests that municipalities do not have to submit disputes involving light duty to contract arbitration unless the contract specifically provides for arbitration of such disputes.

David Monroe worked for the Schenectady County Sheriff’s Department from 1985 to July 15, 1994 when he was terminated as a correction lieutenant for cause. In lieu of pursuing arbitration over his termination, Monroe agreed accepted a demotion and was reinstated to the position of correction officer.

Monroe returned to work on January 17, 1995 as a correction officer but departed within an hour, complaining of an inability to work due to stress and anxiety. On February 7, 1995, Monroe filed an application for, and ultimately won an arbitration award providing full disability benefits pursuant to General Municipal Law Section 207-c.

On January 18, 1997 and March 19, 1998, Monroe was examined by Steven Rappaport, a psychiatrist, who concluded that Monroe was capable of performing light-duty work for four to six weeks and could then return to full duty.

Monroe resisted an order to report for light-duty and “submitted unsigned reports by his own physicians opining that he was not fit to return to work for the Sheriff’s Department.”

The county told Monroe and his union that Monroe’s dispute over the return to work order was governed by Article XI of the county’s procedures. Under that provision, a step three grievance must be filed within 10 days of the employee’s receipt of a back-to-work order. But no grievance was ever filed.

Instead, a notice of arbitration on Monroe’s behalf was filed by the union “pursuant to Article 16 of the collective bargaining agreement between the parties ... and the [county’s] revised Article VI light duty assignments ... 207-c procedure”.

The county obtained a stay of arbitration and Council 82 appealed. The Appellate Division upheld the lower court’s granting the county’s motion to stay the arbitration, holding that:

1. General Municipal Law Section 207-c (3), directing that certain action be taken by the employer, leaves no room for negotiation and, thus, removes the issue from the scope of the Taylor Law. Under the clear language of the statute, an officer is entitled to salary and benefits only if he performs the light-duty assignment.

2. The county’s Article XI properly set out a step three grievance to challenge any determination on light duty. Due process is provided because any decision is subject to review under Article 16.3 of the collective bargaining agreement and allows submission of the step three grievance to arbitration before the Public Employment Review Board.

3. The Section 207-c procedure allows an employee to dispute any specific tasks assigned to him pursuant to a light-duty assignment.

The Court of Appeals affirmed the Appellate Division’s ruling.

These administrative procedures belied the union’s claim that an employee would not have meaningful review of the determination of his eligibility for light duty if he or she is not allowed to demand arbitration pursuant to the collective bargaining agreement.

Also the Appellate Division noted that the Court of Appeals has specifically held that General Municipal Law Section 207-c gives the municipality authority to order officers to light duty and such authority is not “subject to mandatory bargaining,” citing Schenectady Police Benevolent Assn. v New York State Public. Employment. Relations Board, 85 NY2d 480).

The court concluded that it is clear that, in any event, the matter is not arbitrable under the agreement between the parties as a reading of the collective bargaining agreement indicates that the county did not agree to the referral of such disputes to arbitration.

* The April 1, 1999 decisions by the Court of Appeals in the Watertown and Indian River School District cases [93 N.Y.2d 132] address the possibility of arbitration even if it is not specifically provided for in the collective bargaining agreement.

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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html ============================================
NYPPL

Name-clearing hearings

Name-clearing hearings
Aquilone v City of New York, 262 AD2d 13, Motion for leave to appeal denied, 93 NY2d 819

A public employee who has been terminated from his or her position may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual.

The Aquilone case addresses whether a retiree who continues to work as a consultant to the employer is entitled to a name-clearing hearing if his or her behavior prior to retirement is criticized in an investigatory report, putting his or her consulting relationship in jeopardy.

Edward Aquilone, a former Executive Director of Personnel for the New York City Board of Education, won a court order in state Supreme Court directing the school board to hold a name-clearing hearing, only to have the order vacated by the Appellate Division.

Aquilone retired from his position in 1989. Two years later, the Deputy Commissioner of Investigation issued a report that concluded that Aquilone had participated in a cover-up of sexual misconduct involving a fellow employee. The report said that Aquilone appointed friends of the employee to a hearing panel to guarantee a result favorable to the accused and “ensure the proceeding’s secrecy”. The report alleged that Aquilone neglected to give a record of the hearing to the Board’s Office of Personnel Security or log the file into that office’s computer system.

Noting that Aquilone had already retired, the deputy commissioner’s report suggested that suspension or termination of [Aquilone] occasional consulting jobs with the board would constitute “appropriate disciplinary action.”

A four-judge panel of the Appellate Division, 1st Department, ruled that because Aquilone had been retired for two years when the stigmatizing allegations were made, and he was not fired, suspended or demoted, he is not entitled to a name-clearing hearing.

The court ruled that a name-clearing hearing was not appropriate because such a hearing “is a remedy for the deprivation of a person’s due process right when an employee is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence,” citing Donato v Plainview-Old Bethpage School District, 96 F.3d 623, cert. denied 519 US 1150.

In addition, the Appellate Division commented that defamation standing alone does not constitute a deprivation of a liberty interest protected by the due process clause -- some “stigma plus” must be shown before it rises to the level where the individual’s constitutional rights may have been adversely affected.

The court also cited Martz v Inc. Vill. Of Valley Stream, 22 F.3d 26, in which the Second Circuit U.S. Court of Appeals said:

in the context of defamation involving a government employee, defamation ... is not a deprivation of a liberty interest unless it occurs in the course of dismissal or refusal to rehire the individual as a government employee or during termination or alteration of some other legal right or status ... the “plus” is not only significant damage to a person’s employment opportunities, but dismissal from a government job or deprivation of some other legal right or status.

In addition, the court pointed out that reports such as that issued by the deputy commissioner are protected by an “absolute privilege,” referring to the Court of Appeals’ ruling in Ward Telecommunications and Computer Systems Inc. v State of New York, 42 NY2d 289.

In the Ward case, the Court of Appeals -- New York State’s highest court -- ruled that “official ordered reports issued on behalf of the State Comptroller by the Division of Audit and Accounts are subject to an absolute privilege in any action for defamation based on the content of such reports.”

The rationale for this, said the court, was that the public’s interest demands that there be no legal or practical constraint placed on the content of the Comptroller’s reports or deterrent to their availability for public scrutiny.

Applying this rationale to Aquilone’s situation, the Appellate Division said that “the same rule must apply to the results of an official investigation into cover-up of a sex crime committed by a public employee.”
NYPPL

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