Testing for illegal drugs

Testing for illegal drugs
Wilson v White Plains, 95 NY2d 783

The Appellate Division reinstated Ian Scott Wilson to his position of firefighter with the City of White Plains. Wilson had been terminated after testing positive for large quantities of benzoylecgonine (a metabolite of cocaine) in his urine.

In annulling Wilson’s dismissal, the Appellate Division said that in directing [Wilson] to submit to blood and urine tests, the fire department officials relied upon an unsubstantiated and anonymous letter and that there was no objective evidence, which would have suggested that the [firefighter] was abusing alcohol or drugs.

The Court of Appeals reversed the Appellate Division’s decision noting that the parties agreed that a public agency may lawfully order an employee to submit to a drug test on reasonable suspicion of drug use.

The Court of Appeals found that the hearing officer concluded that the White Plains had reasonable suspicion to conduct the test, holding that the Appellate Division erred in concluding otherwise.

According to the decision, in addition to its receiving an anonymous letter concerning Wilson’s alleged use of drugs, the City presented evidence of Wilson’s physical manifestations of substance abuse the day he was tested, his long record of excessive absences, his prior substance abuse problems, his reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.

The Court of Appeals then remitted the case to the Appellate Division for it to consider a number of Wilson’s contentions that it had not addressed when the case was initially argued before it in light of its ruling in this appeal.

Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration

Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration
Matter of Schuyler County v Schuyler County Highway Unit, Local 849, Unit 8600, AFSCME, CSEA Local 1000, 2011 NY Slip Op 00479, Appellate Division, Third Department

The parties entered into a collective bargaining agreement (CBA) for the years 2006-2009 that provided for a four-step grievance process, the third being advisory arbitration.

The CBA's compensation provisions included a clause specifying that employees would receive wage step increases every year, with the steps defined in a wage schedule showing the effect that annual base wage increases from 2006-2009 would have on them.

When a successor agreement negotiated in a timely fashion, Schuyler County declined to grant employees step increases in 2010. The County contended that the increases at issue “were not intended to continue beyond the term of the CBA”

Local 849 filed a grievance which was denied by the County. When the Local demanded that the grievance be submitted to arbitration the County filed an Article 75 petition seeking a court order staying arbitration.

Although Supreme Court granted the County’s petition, the Appellate Division reversed the lower court’s ruling.

The Appellate Division explained that the issue was whether the step increase provision of the CBA continued upon that agreement's expiration and, in that regard, Civil Service Law §209-a (1)(e) provides that an expired CBA's provisions will continue until a new agreement is negotiated unless those provisions create "rights which by their very terms were intended to expire with the agreement."*

The court said that there was neither law nor policy barring either party from submitting a question of contract interpretation regarding wages to arbitration, including the central issue in this action: "whether the CBA's language evinces an intent to an intent to 'sunset' the step increase provision."

Turning to the County’s argument that an arbitration award interpreting the CBA in such a way as to require post-expiration step increases would be violative of public policy, the Appellate Division said that "such a potential does not mandate a stay of arbitration.” The court said that should the County’s claim prove correct, the remedy is vacatur," citing Matter of County of Sullivan,** rather than a court order staying the arbitration.

* Section 209-a(1)(e) is the codification the Triboro Doctrine earlier promulgated by PERB.

** Sullivan County Empls. Assn., 235 AD2d at 750].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00479.htm

Individuals receiving unemployment Insurance Benefits are ineligible to receive emergency unemployment compensation benefits

Individuals receiving unemployment Insurance Benefits are ineligible to receive emergency unemployment compensation benefits
Matter of Umpierre v Commissioner of Labor, 2011 NY Slip Op 00470, Appellate Division, Third Department

Jose A. Umpierre, received unemployment insurance benefits for a benefit year beginning in February 2008, which were paid for the full duration permitted (see Labor Law §§ 521, 590[4]). Umpierre then received emergency unemployment compensation (EUC) benefits.

EUC benefits are available to individuals who "exhausted all rights to regular compensation under the [s]tate law or under [f]ederal law with respect to a benefit year."*

At the end of his initial benefit year Umpierre reapplied for unemployment insurance benefits and was found to have a valid original claim that entitled him to renewed regular benefits, but at a rate substantially lower than he had been receiving in the previous year.**

The Unemployment Insurance Appeal Board, however, determined that Umpierre was not entitled to ongoing EUC benefits because of his renewed eligibility for "regular benefits."

Umpierre appealed the Board’s decision but the Appellate Division sustained the Board’s ruling, noting that “As a matter of federal law, federally funded EUC benefits are only available when a claimant's right to receive regular benefits under state law is exhausted.”

The Appellate Division explained that although Umpierre had “exhausted his right to regular benefits in the prior benefit year, he had renewed eligibility for benefits in the next, and the Board properly determined that he was not entitled to ongoing EUC benefits as a result.”

The fact that the new “regular benefits” were less than the amount that Umpierre had been initiallly receiving was apparently irrelevant insofar as his eligibility for EUC benefits were concerned.

* Public Law 110-252, Title IV, § 4001 [b] [1], 122 US Stat 2323.

** See Labor Law §527.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00470.htm

Designating a disciplinary hearing officer

Designating a disciplinary hearing officer
Pieczonka v Village of Blasdell, 273 AD2d 842

If nothing else, the Pieczonka demonstrates the importance of the parties dotting all of the i’s and crossing all of the t’s in processing a disciplinary action brought pursuant to Civil Service Law Section 75.

The Town of Blasdell served Robert Pieczonka with disciplinary charges. It later wrote to him informing him of the date, time and location of the hearing and the name of the hearing officer. The hearing officer found Pieczonka guilty and the Town terminated him.

Pieczonka appealed, contending that his termination was unlawful because:

1. The Village failed to comply with Section 75(2) of the Civil Service Law since it had not designates the hearing officer in writing;

2. The determination made by the hearing officer was not supported by substantial evidence; and

3. The penalty imposed was excessive.

The Appellate Division never got to consider Pieczonka’s second and third arguments because it ruled that the disciplinary action taken by the Town had to be annulled because the procedure was defective: the hearing officer had not been so designated in writing.

Citing Wiggins v Board of Education, 60 NY2d 385, the court said that “[i]n the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee.”

Section 75(2), in relevant part, provides that the hearing of charges preferred against an employee shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose.

The Appellate Division rejected the Town’s contention that its written notice to Pieczonka advising him of the name of the hearing officer and the time and place of the hearing constituted the required written delegation of authority.

A failure to comply with the written notice requirements set out in Section 75(2) may have other serious consequences.

In Perez v NYS Dept. of Labor, 244 AD2d 844, the Appellate Division, Third Department, annulled a Section 75 disciplinary determination because there was no evidence that the hearing officer who presided over his disciplinary hearing had been so designated in writing. The court ordered Perez reinstated to his former position with back salary and benefits.

Perez then asked for attorney fees and expenses, contending that as the prevailing party, he was entitled to such payments under Section 8601 of the Civil Practice Law and Rules. A State Supreme Court justice agree and awarded Perez $19,907.84, $9275 of which was for Perez’s legal expenses incurred in the Section 75 administrative disciplinary action. The Labor Department appealed.

The Appellate Division sustained the lower court’s ruling. It specifically rejected the department’s argument that its failure to designate the hearing officer in writing was a mere technicality and its actions that ultimately resulted in Perez’s termination were otherwise substantially justified. In addition, the Appellate Division ruled that Perez was entitled to the fees and expenses incurred in connection with the department’s appeal challenging the Supreme Court’s decision.

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Now available, the 2011 edition of The Discipline Book, a concise guide to disciplinary actions involving public employees in New York State. For more informeation about this 1272 page electronic book [e-book], click on http://thedisciplinebook.blogspot.com/

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Political party officials, others, barred from receiving court fiduciary appointments

Political party officials, others, barred from receiving court fiduciary appointments
Kraham v Lippman, USCA, 2nd Circuit, Docket No.06-2695 cv

Section 36.2(c) of the Rules of the Chief Judge of the State of New York [22 NYCRR 36.2, et seq.] sets out a number of “disqualifications for appointment” as “guardians” or “receivers” by New York State courts. Among those ineligible for such appointments are certain political party officials and their families or associates. Bonnie Kraham sued, contending that the rule violates her first Amendment right to freedom of association.

The U.S. Circuit Court of Appeals, Second Circuit, affirmed a lower court ruling summarily dismissing Kraham’s petition.

The specific provision challenged by Kraham, 22 NYCRR 36.2(c)(4)(I), provides as follows:

No person who is the chair or executive director, or their equivalent, of a State or county political party, or the spouse, sibling, parent or child of that official, shall be appointed while that official serves in that position and for a period of two years after that official no longer holds that position. This prohibition shall apply to the members, associates, counsel and employees of any law firms or entities while the official is associated with that firm or entity.

Kraham, an attorney, was elected to serve as co-chair of the Orange County Democratic Committee. She remained in her position after the adoption of the Rule and, around the time it went into effect, held court appointments as a guardian or receiver. Kraham’s petition alleged that the Rule resulted in her being denied three legal employment opportunities – one to form a partnership with another attorney, and two to involving her joining existing law firms – because members of the law firms did not want to become ineligible for judicial appointments.

Kraham contended that in limiting her employment opportunities because of her party leadership, the Rule violated her freedom of political association as protected by the First Amendment.* The Circuit Court disagreed. It said:

Because the Rule advanced New York’s legitimate interest in “eliminating corruption and favoritism in the judicial appointment process,” the [district] court concluded that it withstood rational basis review.. We agree with the district court’s well-reasoned analysis.

Responding to Kraham argument that “the denial of employment opportunities is “[b]y definition . . . significant” and that, in her case, the practical effect was particularly severe because she lives in a small legal community providing few employment options.” the Circuit Court said the burden on Kraham’s employment is no more severe than those the United State Supreme Court upheld in U.S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, and Broadrick v. Oklahoma, 413 U.S. 601.

In Letter Carriers, the Supreme Court upheld the Hatch Act’s prohibition on federal employees’ participation in a wide variety of political activities, including holding party office, while in Broadrick it upheld a similar state statute, 413 U.S. 602.

The Circuit Court observed that:

Appointing others in the law firms of political party leaders creates the public perception of favoritism in the judicial appointment process.

The two-year post-resignation prohibition period reasonably prevents a “quick turnaround” from party leader to court appointee, noting that “This period …. is consistent with the New York Public Officers Law’s limitation on the professional activities of state officers, employees, and party officers for two years after they leave office or state employment [see Public Officers Law §73(8); and

Permitting waivers would vitiate the Rule’s very purpose – to reduce judicial discretion in the appointment process – by opening the door to politically motivated waivers and thereby creating the perception that politically motivated appointments are possible.

The court’s conclusion: 22 NYCRR 36.2(c)(4)(i) of the Rules of the Chief Judge of the State of New York does not violate the First Amendment. It then affirmed the judgment of the federal district court judge dismissing Kraham’s petition.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/high-ranking-political-party-officials.html

* Kraham, conceding the importance of the interest behind the Rule, argued that it is over-inclusive, such that a substantial portion of the burden it places on associational rights does not advance the asserted government interests because the Rule extends not just to party leaders but to their law firms, regardless of the size of the firm and the number of appointments it has received; that it continues to apply for two years after party leaders resign; and that it does not allow for waivers under any circumstances.

Employee suspended without pay ineligible for ERISA benefits

Employee suspended without pay ineligible for ERISA benefits
Pollett v Rinker Materials Corp., USCA 6th Circuit, #05-6459

William Pollett was suspended without pay pending the investigation of allegations that he had failed to respond to an equipment malfunction while at work in the proper manner. While on suspension without pay his physician determined that Pollett unable to work due to numerous physical ailments. That same day, Pollett notified Rinker Materials that he was unable to work and provided Rinker with his physician’s written assessment.

Pollett then applied for “short term disability benefits” under Rinker Materials’ ERISA plan. The plan provides up to 70% of an employee’s basic weekly earnings commencing on the fifteenth day of continuous disability, for a maximum of 12 weeks.

The plan administrator disapproved his application. When Pollett sued, a federal district court judge dismissed Pollett’s challenge to the plan administrator’s determination.

Sustaining the lower court’s decision, the Circuit Court said that in order to qualify for short term disability benefits under the plan, an employee must be “actively at work” when he notifies his employee of a disability. Under the plan, “[a]n employee will be considered actively at work if he was actually at work on the day immediately preceding: . . . an excused leave of absence . . . .”

Pollett contended that he was an “active employee” and thus eligible for benefits because “A suspension without pay equates with an excused leave of absence” and he was at work the day before Rinker suspended him.

The court said “While novel, Pollett’s argument is unpersuasive” It rejected Pollett’s claim that he was “actively at work” for the purposes of eligibility for short-term disability benefits under Rinker’s ERISA plan because equating “a suspension without pay with an excused leave defies common sense.”

In the words of the court, “A suspension without pay constitutes a unilateral penalty which an employer imposes upon an employee” while “an excused leave is more akin to a bilateral understanding during which an employer grants an employee permission to be absent from work.” In this instance, said Circuit Court “the plain meaning of the phrase ‘suspended without pay’ denotes Rinker barred Pollett from employment and all its attendant privileges during the period of his suspension.

Under the facts of this case, the court said that it had little difficulty concluding that an ordinary person would not view Pollett’s suspension without pay as an excused leave of absence and dismissed his appeal.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/suspended-without-pay-employee-not.html

New York State Bar Association proposes State and Local Government Ethics Reform

New York State Bar Association proposes State and Local Government Ethics Reform
Source: New York State Bar Association

On January 3, 2011 the New York State Bar Association’ House of Delegates approved ethics recommendation proposed by its Ethics Task Force co-chaired by Patricia E. Salkin, associate dean and director of the Government Law Center (Albany Law School), and Michael J. Garcia (Kirkland & Ellis LLP), former U.S. Attorney for the Southern District of New York.

The Task Force recommenced a number of proposals, including: a single ethics commission to oversee officers and employees of state agencies and the Legislature as well as lobbyists. Also recommended were “tougher laws to combat ‘honest services fraud’; expanded disclosure by public officials of outside income; and the first comprehensive overhaul of the law governing municipal ethics in 50 years.”

The Executive Summary of the changes urged is posted on the Internet at:
http://readme.readmedia.com/New-York-State-Bar-Association-Proposes-State-and-Local-Government-Ethics-Reform/1984301

Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law

Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law
Matter of Schoonmaker v Capital Region Bd. of Coop. Educ. Servs., 2011 NY Slip Op 00142, Appellate Division, Third Department

Karen Schoonmaker was employed full time as a Senior Keyboard Specialist by Capital Region Board of Cooperative Educational Services (BOCES). When Schoonmaker division's workload was reduced, BOCES reduced her hours to 75% of full time and her wages was decreased correspondingly.

Alleging that BOCES violated her rights under Civil Service Law §80 by reducing her hours and salary but not reducing the hours of Senior Keyboard Specialists with less seniority, Schoonmaker sued. Holding that BOCES did not violate the statute, Supreme Court dismissed her petition and the Appellate Division sustained the lower court’s determination.

The Appellate Division explained that BOCES did not violate Civil Service Law §80 when it reduced Schoonmaker’s hours, despite her seniority. The issue a question of pure statutory interpretation and as the statutory text is unambiguous, the court was required to give "effect to its plain meaning."

§80 of the Civil Service Law, entitled "[s]uspension or demotion," provides that "[w]here, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion . . . among incumbents [in the same governmental jurisdiction] holding the same or similar positions shall be made in the inverse order of original appointment."

As Schoonmaker’s hours were reduced due to economy, abolition of functions or curtailment of activities, the question becomes whether the reduction in hours and corresponding effect on Schoonmaker’s overall income equate to her position being "abolished or reduced in rank or salary grade."

The Appellate Division held that in this instance the answer was no.

The court explained that while conversion of a full-time position to part time has been considered as an abolition of the full-time position, citing Linney v City of Plattsburgh, 49 AD3d 1020, the local civil service rules in Albany County — which apply to BOCES employees — define part-time employment as a person working 50% or less or earning not more than half of the rate assigned if the position was allocated to a graded salary schedule.

Under those rules, said the court, Schoonmaker’s position remained full time and was not converted to a part-time position. Hence, concluded the court, her "full-time position" had not been abolished.

Also noted by the court that “Had the Legislature intended to require that governmental employers suspend or demote employees in the inverse order of appointment when a position was "abolished or reduced in rank[,] salary grade" or hours, those additional words could have been included in the statute.”

However, when the Legislature attempted to add to the statute by requiring inverse-seniority demotion or suspension when an employer reduced its employees' work hours, the Governor vetoed the bill (see 2003 NY Assembly Bill 8399).

Rejecting Schoonmaker’s policy arguments that its decision will create a slippery slope, allowing governmental entities to reduce a senior employee's hours as punishment or to benefit favored less-senior employees, the Appellate Division pointed out that public employees in New York “are currently protected by the law and may bring an action against an employer if they suffer adverse employment actions based upon decisions rendered in bad faith.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00142.htm

Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law

Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law
Matter of Witkowich v SUNY Alfred State Coll. of Ceramics, 2011 NY Slip Op 00454, Appellate Division, Third Department

Three months after Kenneth Witkowich began serving as the Chief of University Police for Alfred State College he was terminated. A day later, he filed an application for workers' compensation benefits, claiming that in the days immediately prior to his termination he had suffered a "recurrence of posttraumatic stress disorder, [irritable bowel syndrome and] anxiety" — or, a panic attack. He subsequently filed a second claim, alleging that the manner in which he was informed of his termination exacerbated his preexisting psychological conditions.

A Workers' Compensation Law Judge [WCLJ] denied both applications, concluding that Workers' Compensation Law §2(7) barred them. A Workers' Compensation Board panel affirmed that decision, finding that Witkowich’s injuries were not compensable.

In deciding the merits of Witkowich’s appeal, the Appellate Division said that a mental injury, even if job related, is not compensable if it is "a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer," citing Workers' Compensation Law §2[7].

Addressing Witkowich’s claim that the stress he encountered as Chief of Police prompted an exacerbation of a preexisting mental condition that, in turn, caused him to have a panic attack, the Appellate Division said that such a claim will not "be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment."

The court noted that no evidence was introduced at the workers’ compensation hearings that Witkowich’s position as Chief of Police was extraordinarily stressful or that the injuries he claimed to have sustained were caused by conditions that existed in the work place.

The Appellate Division dismissed Witkowich’s challenge to the Board’s determination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00454.htm

Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list

Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list
Paolini v Nassau County, Supreme Court, Justice Winick, [Not selected for publication in the Official Reports]

The fact that an individual passes an examination does not give him or her any right to demand that he or she be appointed from the eligible list. The Paolini case involved such a demand, however.

A number of individuals serving as Social Welfare Examiner I with the Nassau County Department of Social Services had taken and passed the competitive promotion examination for Social Welfare Examiner II, Examination Number 71-299. Although the list had been established effective May 13, 1996, no appointments had been made from it.

The list had been extended in 1997, and again in 1998 and in 1999. However, it was due to expire in accordance with the provisions of Section 56(1) of the Civil Service Law. Section 56(1), subject to certain exceptions not relevant in this case, provides that the maximum life of an eligible list is four years from the date of promulgation.

Although Paolini did not claim that the Commissioner of the Department of Social Welfare took any steps to promote anyone on the eligible list, nor that any funds were approved to pay for promotions, he asked to the court to:

1. Extend the eligible list beyond May 13, 2000; and

2. Order the department to promote each petitioner to the position of Social Welfare Examiner II from the eligible list number 71-299 and pay them retroactive to the date on which they each first became eligible for promotion to date, with interest.

Paolini contended that a November 17, 1992 decision by State Supreme Court Justice Lockman -- Livingston v Nassau County Civil Service Commission, [Index 14457-92, not selected for publication in the Official Reports] -- was a precedent for this relief.

In Livingston the employer, the Fire Commission, met on September 5, 1991 and actually made a number of promotions from the eligible list. The minutes of the meeting indicated the appointments were approved. In addition, the salaries for these appointments were included in the County budget but the paperwork had not been processed because of a fiscal crisis. Judge Lockman ruled that the paperwork was a ministerial act, and directed that Livingston be compensated at the higher salaries retroactive to September 5, 1991.

Such was not the case with respect to any claimed action to promote the Paolini plaintiffs to a higher-grade position. Paolini conceded that the Department took no steps to effectuate the promotions nor was there any evidence of any communication to the County Executive or approval of the legislative body to make any such appointment.

Holding that the facts in Paolini were clearly distinguishable from the facts in the Livingston case, the court said that [o]ther than holding the test, no steps had been taken to promote anyone to Social Welfare Examiner II.

Finally, the court said that there is no proof that any monies were appropriated for higher salaries or that the higher-grade positions were budgeted at the time the Paolini plaintiffs passed the Civil Service test, as was the case in Livingston.

Accordingly, said the court, here there was more than a ministerial act required to effectuate the promotions -- and such required actions were not shown to have been taken by the county.

The court dismissed Paolini’s petition, noting a number of other procedural defects that otherwise would bar its granting any relief in this case.

1. There was no prior determination by an administrative body, a prerequisite for bringing an Article 78 proceeding. The administrative remedies must be exhausted with a final determination for the court to review.

2. This was no decision by the Civil Service Commission to review and it is not within the court’s power to usurp the ability of an administrative agency to make such determinations.

3. There was no Notice of Claim filed with the county as required by Section 58-e of the General Municipal Law.

When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition

When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition
Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425, Appellate Division, First Department

Dismissing an Article 78 petition seeking one form of relief does not necessarily mean that that portion of the petition seeking other relief must be dismissed as well.

Janice A. Donoghue, a teacher employed by the New York City Department of Education, asked to be granted tenure as an earth science teacher as of September 1, 2005. When the New York City Department of Education failed to act, Donoghue filed an Article 78 petition. Although Supreme Court granted the Department’s motion to dismiss her petition, the Appellate Division reversed the lower court ruling “on the law and in the exercise of discretion.” And reinstated the petition.

Nor, said the court, is Donoghue’s appeal “moot,” since Donoghue has not obtained all of the relief she sought.

The Appellate Division explained that an Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act.

The decision indicates that although Donoghue had asked the Department to retroactively grant her tenure in earth science, the Department had failed to act on her request.

Addressing the question “Is Donoghue’s action barred by the statute of limitations?”-- the Appellate Division said that Donoghue’s Article 78 petition was in the nature of a prayer for “mandamus relief.”

In such an action the petitioner is required to make a demand and await a refusal before the matter is ripe for possible litigation. Significantly, statute of limitations does not commence to run “until the refusal" is served on the individual or his or her attorney.*

Thus, said the court, “[i]f there is no refusal, the limitations period does not begin to run.”

Considering another procedural issue, the Appellate Division noted that Donohue’s request was not made within the four-months required. However the court, in an “exercise” of its discretion determined that the proceeding was not barred by laches because "[i]f a petition and answer ‘can be construed as the necessary demand and refusal’ [Donoghue’s] pre-petition demand should not be deemed untimely.”

* As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00425.htm

Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid

Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid
Matter of Falkouski v City of Rensselaer Fire Dept., 2011 NY Slip Op 00446, Appellate Division, Third Department

A City of Rensselaer part-time paid assistant fire chief also served as a member of a City of Rensselaer volunteer fire company. He died after suffering a ruptured cerebral aneurysm while at a fire.

His surviving spouse, Susan Falkouski, filed claims under both the Workers' Compensation Law and the Volunteer Firefighters' Benefit Law.



Although a Workers' Compensation Law Judge found that the fassistant cheif’s death was causally related to his volunteer firefighter duties, the Workers' Compensation Board reversed, finding that he had died while working in his capacity as an assistant fire chief.

Accordingly the Board ruled that the Workers' Compensation Law, rather than the Volunteer Firefighters’ Benefit Law, controlled insofar as Mrs. Falkouski’s claims for benefits were concerned.

Mrs. Falkouski’s late husband, as an assistant fire chief, received biweekly pay and took on responsibilities beyond those of a volunteer firefighter such as carrying a City-supplied pager and he was obligated to respond to all fires. Further, said the court, “there was evidence that his duties as assistant fire chief required him to supervise volunteer fire companies responding to the scene of a fire, he wore a different color hat indicating his supervisory role and he was acting in such capacity at the time of the subject fire.”

Under these circumstances, the Appellate Division sustained the Board’s determination, ruling that substantial evidence supports the Board's determination that, at the time of his death, Mrs. Falkouski’s late husband was engaged in work as an employee in his paid position as an assistant fire chief.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00446.htm

The State Commissioner of Education lacks jurisdiction to consider an appeal involving the non-renewal of the charter of a Charter School

The State Commissioner of Education lacks jurisdiction to consider an appeal involving the non-renewal of the charter of a Charter School
Appeal of Ross Global Academy Charter School regarding the nonrenewal of its charter. Decisions of the Commissioner of Education, Decision #16,194

The New York City Chancellor of Education, as a charter entity pursuant to Education Law §2851(3)(a), entered into a proposed charter agreement with Ross Global Academy Charter School [RGACS] for the operation of a charter school for five years. The proposed charter agreement was submitted to the New York State Board of Regents, which approved and issued it in January 2006.

In 2010, RGACS submitted an application to the Chancellor for the renewal of its charter for an additional five years, but was advised by the Chancellor’s staff in December 2010 that its charter would not be renewed by the Chancellor beyond the end of the 2010-2011 school year.

RGACS appealed, contending that the Chancellor and his staff [1] failed to follow appropriate policies and procedures in making the nonrenewal decision; [2] that it was treated differently than other allegedly “similarly situated” charter school; and [3] that its charter should be renewed.

The Commissioner dismissed RGACS’ appeal “for lack of jurisdiction.” The Commissioner said that Education Law §2852(6) provides that, “[n]otwithstanding any provision of law to the contrary,” the denial of an application for a charter school by a charter entity “is final and shall not be reviewable in any court or by any administrative body.”

The Commissioner explained that as the appeal submitted by RGACS is an administrative proceeding that challenges the denial of an application for a charter school, he lacks jurisdiction to consider it “Because the legislature has proscribed administrative review….”

The Commissioner rejected RGACS’ argument that Education Law §2852(6) is not applicable because it applies only to the denial of an initial charter application and not, as here, to an application for the renewal of an existing charter school, noting that “Education Law §2851(4) provides, in pertinent part, that “[c]harters may be renewed, upon application, for a term of up to five years in accordance with the provisions of this article for the issuance of such charters pursuant to section twenty-eight hundred fifty-two of this article”

As to RGACS’ claim that the Regents was the ultimate authority with respect to ruling on its application for renewal, the Commissioner said that “it is the charter entity (in this case, the Chancellor) that has the ultimate authority to deny an application for a charter school’s renewal.”* The Commissioner said that the Board of Regents "does not have the ability" to reject or veto a “recommendation” of another charter entity or modify a proposed charter submitted by such entity, citing Bd. of Educ. of the Roosevelt UFSD., et al. v. Bd. of Trustees of the State University of New York, et al., 282 AD2d 166).

* The Commissioner noted that although the Chancellor’s staff prepared a report and submitted it to the Board of Regents in this matter with a “recommendation” that RGACS’ charter not be renewed beyond the 2010-2011 school year, this submission was not required by law and is without consequence to the chartering process.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16194.htm

Family Medical Leave Act and the Doctrine of Eleventh Amendment Immunity

Family Medical Leave Act and the Doctrine of Eleventh Amendment Immunity
Lambert v NYS Office of Mental Health, USDC, EDNY, Judge Gleeson, 97-CV-1347

Efforts by state employees to challenge alleged violations of federal civil rights and other laws have be rejected by federal courts under the doctrine of Eleventh Amendment Immunity. In the Lambert case, a federal district court dismissed claims alleging that the State’s Office of Mental Health [OMH] violated the Family Medical Leave Act on the basis of Eleventh Amendment Immunity.

Patricia Lambert had requested leave pursuant to the Family and Medical Leave Act of 1993 [FMLA], 29 USC Section 2601 on December 16, 1994. She provided medical documentation in support of her request.

While her FMLA request was pending, she used sick leave, personal time, and vacation time to cover her absences from work. OMH, Lambert claimed, (1) found her to be her eligible for FMLA benefits on February 1995 but (2) terminated her in March 1995.

The court never reached the merits of Lambert’s allegations, holding that [s]ince Lambert’s FMLA claim against the Office of Mental Health is predicated on a request for leave involving her own health condition (in contrast, for example, to a request for leave for the birth of a child), it is barred by the Eleventh Amendment.

The court cited Hale v Mann, 219 F.3d 61, 67, decided by the U.S. Court of Appeals, Second Circuit, as authority for its determination.

In Hale the Circuit Court said that FMLA’s abrogation of states’ sovereign immunity to suits regarding employees’ own health conditions exceeded Congress’s power under the Fourteenth Amendment.

Judge Gleeson also commented that Lambert’s FMLA claim against the individual defendants was inappropriate, noting a decision by the Eleventh Circuit holding that individual state officers are not employers within the meaning of the FMLA [Wascura v Carver, 169 F.3d 683].

Limiting the selection of arbitrators

Limiting the selection of arbitrators
Suffolk County PBA v Suffolk County, 273 AD2d 222

Suffolk County adopted a resolution [Resolution 377-1998] barring arbitrators who have served in labor disputes involving Nassau County within the preceding three years to serve in disputes under collective bargaining agreements voluntarily submitted to arbitration or in binding arbitration.

Suffolk County PBA challenged the resolution, contending that it violated both the terms of a collective bargaining agreement [CBA] between it and the county and the Taylor Law. State Supreme Court Judge Jack J. Cannavo, agreed and ruled that the resolution was invalid.

The county appealed and the Appellate Division overturned the lower court’s decision. The Appellate Division held that the CBA and the Suffolk County Administrative Code, which was substantially equivalent to the Taylor Law, both contained binding arbitration provisions permitting Suffolk County to select arbitrators at its own discretion.

Pointing out that the county could exercise its discretion in selecting arbitrators, the Appellate Division declared that the PBA lacks standing to assert that the resolution is arbitrary or capricious, or that the Suffolk County Legislature did not possess the authority to determine how Suffolk County should select its arbitrators.

The court also commented that in contrast to the PBA’s contention, the resolution did not prohibit an arbitrator from making comparisons between Nassau and Suffolk County to determine arbitration issues.