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

June 23, 2011

Arbitrating the interpretation of a collective bargaining agreement

Arbitrating the interpretation of a collective bargaining agreement
City of Schenectady v Schenectady PBA, 289 AD2d 814

The applicable collective bargaining agreement [CBA] between the City of Schenectady and the Schenectady PBA provided that “all police department employees ... will be provided retirement benefits based upon their average earnings during the 12-month period prior to his or her retirement pursuant to Retirement and Social Security Law Section 302.9(d).”

Section 302.9(d) applied only to Tier I employees at the time the CAB was executed. In 1999 Section 302.9(d) was amended to include both Tier I and Tier II members of the retirement system. When the City refused to extend the CBA “12-month period” benefit to its retiring Tier II police employees, the PBA grieved and demanded the issue be submitted to arbitration.

The City obtained a stay of arbitration on the ground that the dispute was not arbitrable. On appeal the Appellate Division reversed the lower court's ruling holding that there was no public policy or statutory bar to submitting the matter to an arbitrator for resolution.

The court pointed out the in determining whether or not a public sector negotiated contract grievance is subject to arbitration, a two-step analysis is used, citing Liverpool Central School District v United Liverpool Faculty Association, 42 NY2d 509, 513.

The first test: does the issue concern a subject that is arbitrable under the Taylor Law? The court said that as neither the City nor the PBA claimed that public policy prevents arbitration of this retirement issue, it only had to consider the second test: did the parties agreed to arbitrate the dispute in question?

The standard to be applied by the court in evaluating the second test: is there a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

The PBA relied on the language in the CBA that provided that: Pursuant to the provisions of [Retirement and Social Security Law] Section 302.9(d) ... [the City] will provide retirement benefits based upon the average earnings during the twelve (12) month period prior to ... retirement.

The PBA argued that the City violated this provision when it refused to apply this provision to both Tier I and Tier II retiring members of its police department. The City, on the other hand, contended that the issue was not subject to arbitration as it never contemplated the provision would be applicable to Tier II members of the retirement system.

The Appellate Division found that “there is a decided relationship between the subject in dispute and the general subject of the CBA.”

Further, said the court, the City was, in effect, asking it “to interpret a substantive provisions of the CBA and find that the subject of the grievance could not have been contemplated by the parties at the time that they executed the CBA,” on the theory that the relevant provisions of Retirement and Social Security Law were not in existence at the time the CBA was negotiated and, “therefore, the benefits provided under that section were not and could not have been bargained for.”

This is exactly the type of interpretation of a CBA that the courts are told is the “kind of merit inquiry that [courts] are admonished not to engage in,” citing Committee of Interns and Residents v Dinkins, 86 NY2d 478.

The court rejected the City's contention that Retirement and Social Security Law Section 443(f-1) precludes the arbitration demanded by the PBA. Why? Because, said the Appellate Division, “[t]hat section provides that an unsuccessful demand for Retirement and Social Security Law Section 443(f) benefits, during collective bargaining negotiations, shall not be subject to compulsory interest arbitration as provided for in Civil Service Law Section 209(4).

Accordingly, the court decided that Section 443(f-1) does not address and, therefore, does not prohibit such issue from being raised, as here, in contractual grievance arbitration.

The Appellate Division came to the same conclusion in a case involving the same basic issue: City of Johnstown v Johnstown PBA, decided December 20, 2001.

Discovery of public employer’s electronic records in federal litigation


Discovery of public employer’s electronic records in federal litigation
Pritchard, et al v County of Erie and others, 546 F.3d 222

Pritchard obtained an order from a federal district court justice compelling Erie County to produce certain electronic communications – e-mails - between County officials and an attorney employed by the County. The County objected, claiming that these e-mails were protected by the attorney-client privilege. The Circuit Court of Appeals agreed and vacated the district court’s order.

However, the Circuit Court then remanded the matter back to the lower court to consider another issue: “whether the privilege was otherwise waived.” Accordingly, the Circuit Court directed the lower court “to enter an interim order to protect the confidentiality of the disputed communications” until the issue of whether the privilege claimed by the County had been waived was decided.

United States District Court Justice Curtin had initially authorized the discovery of e-mailed communications, among other documents, that had been exchanged by an Assistant Erie County Attorney and County officials. The County characterized these e-mails as e-mails that “solicit, contain and discuss advice from attorney to client.”

In the words of the Second Circuit, Erie County’s petition “raises an issue of first impression: whether the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where those communications assess the legality of a policy and propose alternative policies in that light.”

The attorney-client privilege protects confidential communications between client and counsel made for the purpose of obtaining or providing legal assistance. As the Supreme Court said in Upjohn Co. v. United States, 449 U.S. 383. at 389, “This permits attorneys and their clients to communicate fully and frankly and thereby to promote ‘broader public interests in the observance of law and administration of justice.’”

In civil suits between private persons and government agencies, the attorney-client privilege protects most confidential communications between government counsel and the agency that are for the purpose of obtaining or providing legal assistance.

The Circuit Court said that “Access to legal advice by officials responsible for formulating, implementing and monitoring governmental policy is fundamental to promot[ing] broader public interests in the observance of law and administration of justice,” again citing Upjohn.

In this instance, the Circuit Court decided that the e-mails in question were exchanged between the county officials and their county attorney for “the predominant purpose of soliciting or rendering legal advice." They convey to the public officials responsible for formulating, implementing and monitoring Erie County’s corrections policies, a lawyer’s assessment of Fourth Amendment requirements, and provide guidance in crafting and implementing alternative policies for compliance. This advice -- particularly when viewed in the context in which it was solicited and rendered--does not constitute “general policy or political advice” unprotected by the privilege.

The issue of privilege with respect to electronic communications and records kept in electronic form will probably be the subject of future litigation. Changes to the Federal Rules of Civil Procedure [Rules 5.1, 16(b), 24, 26(a), 26(b)(2), 26(b)(5), 26(f), 33, 34(a), 34(b), 37(f), 45], and the Federal Rules of Evidence [Rules 404, 408, 606, 609], among others, took effect on December 1, 2006.

These amendments essentially address electronically stored information for the purpose of “discovery” in the course of litigation, including the obligation of the litigants to meet and confer about electronic discovery early in litigation and the discovery of information “electronically stored.” The new rules also require the parties to include information about electronically stored information in initial disclosures; the mandated early discovery-planning conference of counsel; the report to the court; and the pretrial scheduling conference with the judge. 

Depression may not qualify as a disability


Depression may not qualify as a disability
Aldrup v Caldera, 274 F.3d 282

William A. Aldrup complained that he was depressed and this constituted a disability under ADA. The reason for his depression: he had suffered stress and anxiety because of his having to work with certain employees.

The Fifth Circuit Court of Appeals rejected Aldrup's claims, finding that he was not disabled within the meaning of the ADA because although he was unable to work only with particular co-workers at one particular job, he could work with other individuals at another work site.

Aldrup was a firefighter at a military installation, the Camp Bullis Fire Station. Because of a staffing shortage at another installation, Aldrup was assigned to the Fort Sam Houston Station -- about 20 miles away from Bullis -- for one day. He refused to report to Sam Houston.

He was charge with insubordination and dismissed from his position. Earlier he had been subjected to “progressive discipline” for other acts of insubordination.*

Clearly, the failure of a subordinate to follow a direct order of a supervisor is a legitimate, nondiscriminatory reason for taking adverse employment action. Did Aldrup state a valid explanation of his insubordination by claiming that he suffered a disability involving a major life activity -- working?

The court decided that Aldrup had failed to offer evidence that he was substantially limited in the life activity of working and that he had failed to create a fact issue that his employer's proffered reason for his removal -- insubordination -- was pretextual.

Aldrup based his disability claim on his alleged depression resulting from “the stress and anxiety of having to work with certain employees at the [Houston Station].” This, said the court, was insufficient to demonstrate that Aldrup was disabled within the meaning of the ADA. His claim, “if supported by the record, would merely tend to show that he was unable to perform any job at one specific location, and is not evidence of Aldrup's general inability to perform a broad class of jobs.”

Aldrup also claimed that he was entitled to disobey his supervisor's order because it placed him in personal jeopardy. The court said that while a subordinate must obey an order first and complain later, there is an exception when obeying the order would place the subordinate in a clearly dangerous situation. The Circuit Court did not find any “clearly dangerous situation” present that would excuse Aldrup's misconduct in refusing to comply with his superior's directive.

The court's conclusion: based on the record, the decision to remove Aldrup was neither arbitrary nor capricious.

* In challenging the Merit Systems Protection Board's sustaining his dismissal, Aldrup alleged “mixed claims” -- i.e., claims based on discrimination as well as other grounds. The Circuit Court said that while it did not generally have jurisdiction to review the decisions of the Merit Systems Protection Board, it did have jurisdiction over this type of “mixed case,” citing Wiggins v US Postal Service, 653 F.2d 219.

June 22, 2011

Governor Cuomo announces five year labor agreement with the Civil Service Employees Association

Governor Cuomo announces five year labor agreement with the Civil Service Employees Association
Source: Executive Office Press Office

On June 22, 2011 Governor Andrew M. Cuomo announced that his administration has reached a five-year labor agreement with the Civil Service Employees Association (CSEA). CSEA represents 66,000 New York State employees and is one of the largest public employee unions in the state. The agreement, which must be ratified by members of CSEA in the several State negotiating units represented by CSEA, would provide State employees represented by CSEA with protection from broad layoffs.

”The agreement includes a freeze on base wages for 3 years and a redesign of the employee health care contribution and benefit system, saving $73 million this fiscal year and $93 million next fiscal year. If adopted by the state's other collective bargaining units, the agreement will reduce workforce costs by $1.63 billion over the course of the agreement, including $1.27 billion of savings in healthcare costs, and would achieve sufficient savings to avoid the need for broad layoffs arising from the gap in the state operations budget. Overall, the five-year agreement if adopted statewide would be $3.8 billion less expensive to the state than the previous four-year agreement reached in 2007.”

Key elements reported:

Base Wages: Under the five year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.
2011-12
2012-13
2013-14
2014-15
2015-16
0%
0%
0%
2%
2%

Expected Savings: The 2011 wage agreement is $2.5 billion less costly to the state than the 2007 agreement, if adopted through the state workforce.

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system that saves $61 million annually in the CSEA contract and $263 million over the contract term. If adopted by all bargaining units, these reforms would save $1.27 billion. The components of the health system redesign are: 

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The contribution for health care benefits have not changed in 30 years, while the cost of the state's health care program has increased 100 percent in the past decade. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Expected Savings: The CSEA agreement results in $30 million in annual savings from this provision, and $141.7 million over the contract term. If adopted for the entire workforce, this change will save $165 million per year, and $764 million over the term of the contract.

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively. This will save the state thousands of dollars for each employee who opts out.

Savings: The opt-out will save $7.3 million annually and $31 million over the contract term for CSEA alone. The opt-out achieves $21.6 million in annual savings, and $91.8 million over the five year term if adopted statewide.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Expected Savings: The CSEA savings for this provision are $22.3 million annually and $95.7 million over the contract term. If adopted by all bargaining units, these changes generate $85.5 million annually when adopted statewide, and $361.4 million over the term of the contract.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Expected Savings: The furloughs will yield $360 million in savings if adopted by all bargaining units.

Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Patient Abuse Reforms: Both CSEA and the State agree that the system in place for investigating allegations of abuse of patients at state facilities does not adequately protect our most vulnerable population in state care. While CSEA employees are dedicated caretakers, allegations of abuse must be dealt with thoroughly. Under the agreement, the State and CSEA will take a number of steps to improve the quality of care, including creating a completely new Select Panel on Patient Abuse with A-list arbitrators and creating a table of penalties for increasingly severe acts of misconduct, along with a number of other reforms.

Review of Temporary Employees: The State and CSEA will form a joint committee to review the use of temporary employees and contractors and make recommendations to the Division of Budget and Department of Civil Service.

Layoff Protection: CSEA employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

Negotiations for the State were led by a special team appointed by the Governor comprising Todd R. Snyder, Senior Managing Director of Rothschild Inc. and Co-Head of Rothschild's Restructuring and Reorganization group; and Joseph M. Bress, former head of the Governor's Office of Employee Relations and former Vice President of Labor Relations at Amtrak, under the direction of Howard Glaser, Director of State Operations.

Authority of an arbitrator to modify the disciplinary penalty proposed by the employer

Authority of an arbitrator to modify the disciplinary penalty proposed by the employer
Matter of Communication Workers of Am., Local 1170 v Town of Greece, 2011 NY Slip Op 05308, Appellate Division, Fourth Department

The arbitrator sustained various disciplinary charges against a Town of Greece police sergeant and determined that "[t]he Town had just and sufficient cause to demote" the Sergeant. The arbitrator further determined, however, that a permanent demotion was unreasonable and arbitrary, and converted the proposed penalty to a demotion for a term of one year.

The CWA asked Supreme Court to confirm the arbitration award while the Town asked the court to vacate the award in part on the ground that the award exceeded the scope of the arbitrator's authority. 

Supreme Court sustained Greece’s motion to vacate the award and remanded the matter to the Town for its imposition of a new penalty.

In response to CWA’s appeal, the Appellate Division held that Supreme Court erred in vacating that part of the arbitration award reducing the penalty to a demotion for a term of one year and remitted the matter "to the Town for reconsideration of the penalty to be imposed upon" the Sergeant and confirmed the arbitration award.

The Appellate Division said that an arbitrator’s award may be vacated on the ground that an arbitrator exceeded his or her power "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The Court explained that “It is well established that "an arbitrator has broad discretion to determine a dispute and fix a remedy[] and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself'," citing Matter of State of New York [Dept. of Correctional Servs.] [Council 82, AFSCME], 176 AD2d 1009, lv denied 79 NY2d 756. Further, the Appellate Division pointed out that "To exclude a substantive issue from arbitration, therefore, generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach."

Specifically the court decided that the underlying collective bargaining agreement [CBA] authorized the arbitrator to determine that the imposed punishment is "unreasonable, arbitrary or capricious" and if so found, the CBA specifically provides that, "where the penalty imposed is found to be unreasonable, arbitrary or capricious," the arbitrator may make a determination "with respect to the penalty imposed upon the grievant . . . ."

The Appellate Division pointed out that while the CBA does not explicitly authorize an arbitrator to substitute an appropriate penalty upon determining that the penalty imposed by the Town is unreasonable, arbitrary or capricious, there is likewise no such "specifically enumerated limitation on the arbitrator's power."

Accordingly, the court conclude that the arbitrator did not exceed his authority in modifying the grievant's penalty from a permanent demotion to a demotion for a term of one year.

* Courts have also vacated an arbitration award where it is determined that the award “violated strong public policy.” See Ford v CSEA, 94 AD2d 262, in which the court addresses the critical question of the power of an arbitrator to render a decision which impacts on or affects a public policy.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05308.htm

Protected speech in public employment

Protected speech in public employment
Green v Board of County Commissioners, USCA, 10th Circuit, Docket 05-6297

The general rule applied in cases where a public employee’s allegation that his or her right to free speech has been violated is that while an employee's freedom of speech regarding matters of “public concern” may not be restricted by a public employer, the employer may prohibit an employee from speaking “in an official capacity.” The Green case involved the analysis and application of this general rule.

Jennifer Green was employed at Canadian County, Oklahoma's Juvenile Justice Center as a drug-lab technician and detention officer. As part of her job, she performed drug-screening tests. She was concerned that some of the samples tested produced “false-positive” results. As the Center did not have a confirmation testing policy, she raised the issue of “false positive” test results with her immediate supervisor, William Alexander. Alexander was not responsive.

Without Alexander’s knowledge, Green contacted the manufacturer of the drug-testing equipment used at the Center and asked questions about confirmation testing. In addition, she spoke with representatives of the Department of Human Services about the need for a confirmation test. Ultimately, Green arranged for a caseworker to transport a sample that had tested positive for drugs to a hospital for confirmation testing. The confirmation test indicated that the Center's initial test of the sample produced a false-positive result. Green communicated this information to Mr. Alexander. Soon thereafter, the Center adopted a formal confirmation testing policy.

Green complained following this episode her employer treated her less fairly and she was subsequently dismissed from her position. She sued, contending that her employer’s actions violated the federal Civil Rights Act, 42 U.S.C. 1983 [Civil action for deprivation of rights], and state-law. A federal district court judge dismissed her petition and Green appealed to the Circuit Court of Appeals.

One element of Green’s complaint alleged that the County’s actions violated her Constitutional right to free speech.

Addressing the “free speech” aspect of her appeal, the Circuit Court concluded that Green’s First Amendment rights had not been violated because Green’s “free speech” allegations did not involve communicating with newspapers or her legislators or performing some similar activity.

Green disagreed with her supervisors' evaluation of the need for a formal testing policy and her unauthorized obtaining of the confirmation test to prove her point. However, the Circuit Court, citing Garcetti v. Ceballos, 126 S. Ct. 195 [at 1960], said that a government employee’s First Amendment rights do “not invest them with a right to perform their jobs however they see fit.” Accordingly, there is no “judicial oversight of communications between and among government employees and their superiors in the course of official business” and “displacement of managerial discretion by judicial supervision.”

Here, said the court, Green's communications with third parties about confirmation testing are the types of communications that would be attributable to the Center and thus the Center has an interest in controlling them. Accordingly, in the eyes of the Circuit Court, Green’s speech was not “protected speech.”

Sustaining the lower court’s dismissal of Green’s petition, the Circuit ruled that with respect to the unauthorized confirmation test arranged for by Green and her related communications to third parties, Green did not speak or act in her capacity as a citizen, but rather was acting as a government employee and thus did not exercise protected free speech.

Free speech issues raised by public employees have been considered by the U.S. Supreme Court in a number of instances. Essentially public officers and employees enjoy “protected speech” in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreement concerning internal operations of the department or agency which do not rise to the level of a “public interest,” are not protected by the Constitution.

Typically, the resolution of such “free speech” cases turns on the court’s view as to whether the employee’s comments address a matter of “public concern” or a matter of “personal interest.”

Equal pay for equal work and “red lined” positions


Equal pay for equal work and “red lined” positions
Fenton v St. Lawrence County, 36 AD3d 1102

Deanna Fenton and C. Kevin McDonough both served as personnel technicians with St. Lawrence County. Fenton’s annual salary, however, was significantly less than McDonough’s annual salary.

Fenton’s salary was based on a grade-step salary schedule contained in a Taylor Law contract while McDonough's salary reflected the salary he was receiving of his previous higher salaried position – Personnel Director – when he was “downgraded” to a lower grade position. When McDonough was downgraded, his salary was “red lined.”

In response to Fenton’s complaining about this salary discrepancy, her supervisors had a “desk audit” of her position performed. As a result, Fenton’s position was allocated to a higher salary grade but this did not resolve the underlying salary discrepancy between Fenton and McDonough.

Fenton filed a complaint with the Equal Employment Opportunity Commission [EEOC] alleging the difference between her salary and McDonough’s constituted a violation of the Equal Pay Act of 1963 (29 USC § 206 [d]. Fenton also complained that after filing her complaint with EEOC she had been subjected to retaliation.

Eventually EEOC issued a right to sue letter and Fenton brought and action in State Supreme Court seeking compensation for gender discrimination. Supreme Court issued an order summarily dismissing Fenton’s petition. The Appellate Division affirmed the lower court’s action.

The Appellate Division said that in order to maintain a cause of action under the Equal Pay Act, the plaintiff must “establish a prima facie case of wage discrimination by demonstrating that:

(1) The employer pays different wages to employees of the opposite sex:

(2) The employees perform equal work on jobs requiring equal skill, effort, and responsibility; [and]

(3) The jobs are performed under similar working conditions” citing, Aldrich v Randolph Cent. School Dist., 963 F.2d 520, 524, cert denied 506 US 965.

St. Lawrence County conceded that Fenton had established a prima facie case of unlawful discrimination, Accordingly, the burden of going forward shifted to it to demonstrate that the pay disparity was justified – i.e. the differences in the wages paid to Fenton and to McDonough was due to a factor “other than sex”

The County contended that it had met its burden by establishing that Fenton’s salary was lower than McDonough's because McDonough’s salary reflected the compensation he had been receiving in his former, higher grade position, and his salary rate had been “red lined” or “red circled” for legitimate business reasons.

The Appellate Division said that it agreed and dismissed Fenton’s appeal.

The court explained that:

“The term 'red circle' rate is used to describe certain unusual, higher than normal, wage rates which are maintained for reasons unrelated to sex” such as reclassification or reallocation of position as a result of reorganization or for other legitimate administrative purposes. Where a position is red circled for legitimate business reasons, it may result in the maintenance of an employee's salary at a higher rate despite a decrease in the employee's responsibilities or duties.” This constitutes a “factor other than sex” and thus qualifies as an affirmative defense under the Equal Pay Act.”

In this instance St. Lawrence County “red circled” an incumbent’s salary to avoid financially injuring the downgraded employee. The court noted that the County had red circled the salaries of both male and female employees affected by its reorganization.

This evidence established the requisite affirmative defense, shifting the burden to Fenton to raise a triable issue of fact regarding whether County’s' red circling of these position was a pretext for gender discrimination.

In the court’s view, Fenton “failed to meet” her burden of rebutting the County’s affirmative defense by proving that its reason was “mere pretext” for unlawful discrimination.

Administrative adjudications


Administrative adjudications
Brzostek v Syracuse Fire Dept., 238 AD2d 947; Leave to appeal denied, 92 NY2d 102

In the Brzostek case, the Appellate Division, Fourth Department, was asked to review an administrative adjudication. In an earlier appeal concerning the parties, the court ruled that Brzostek was entitled to a determination on the merits of his request for General Municipal Law Section 207-a (2) benefits [Brzostek v City of Syracuse, 238 AD2d 947; Leave to appeal denied, 92 NY2d 1026].*

Instead of holding a hearing, thereby creating “an administrative record for judicial review,” the City and Brzostek agreed upon a “set of stipulated facts” which were submitted to Supreme Court. Supreme Court then reviewed the matter “de novo.”

The Appellate Division ruled that such a procedure was incorrect. It said that an administrative determination must be made by the appropriate agency in the first instance, and Brzostek had the burden of proving that he was eligible for Section 207-a benefits.

The court said that the department had to determine the merits of Brzostek's application and remanded the matter to it for this purpose. Once the administrative agency makes its determination, if the individual objects, he or she may appeal the decision.

An administrative agency's administrative determination is subject to judicial review in a CPLR article 78 proceeding. The traditional test applied by the courts is such instances: is the administrative determination supported by substantial evidence in the record.

* General Municipal Law Section 207-a provides significant benefits to firefighters who are disabled as the result on an injury sustained in the line of duty.

June 21, 2011

Bill targeting pension abuse passed by State Legislature


Bill targeting pension abuse passed by State Legislature

The New York State Legislature passed legislation* on June 20, 2011 to enhance State Comptroller Thomas P. DiNapoli’s ability to catch those who abuse the state pension system.

The bill grants the Comptroller’s office access to State Department of Taxation and Finance's wage reporting system to identify New York State and Local Retirement System retirees working for local governments in order to determine if any exceed the retirement earnings limitation set out in the Retirement and Social Security Law. If a state or local government employee earns more than those limits, the Comptroller has the authority to suspend and recoup any excess payments made with respect to the pension portion of the individual’s retirement allowance.

The Retirement and Social Security Law (RSSL) places limits on the amount that may be earned by a retiree who returns to public employment with the State as an employer, or with a political subdivision of the State, without it affecting his or her retirement allowance.** Most retirees are covered by Section 212 of the RSSL, which allows retirees under age 65 to earn up to $30,000 per calendar year without any penalty with respect to the pension portion of his or her retirement allowance.

Currently, the Retirement System annually compares retiree information with payroll data for state employees.  However, no similar mechanism existed to check payroll information of the thousands of local public employers statewide.

* Assembly 7911; Senate 5460

** See §210 et. seq. of the Retirement and Social Security Law..

Broadbanding of positions

Broadbanding of positions
Ensley v Diamond, 258 AD2d 263, Leave to appeal denied 93 NY2d 814

The Ensley case contrasts two different position classification concepts: (1) “reclassification” of positions and (2) “broadbanding” of positions.

According to Charles Ensley, the New York City Department of Citywide Administrative Services' Resolution 98-12, adopted on November 12, 1998, reclassified a number of existing positions. He contended that the resolution was null and void because the City failed to comply with Section 20 of the Civil Service Law before adopting the resolution.

The city, on the other hand, argued that it had not reclassified any position but had, instead, “created new titles, each of which encompassed more than one assignment.” The Appellate Division, First Department, in its decision, characterized the city's action challenged by Ensley as “broadbanding.”*

First, some background: Section 20.1 of the Civil Service Law requires each municipal commission to adopt rules “for the jurisdictional classification of positions” and “for the position classification of such offices and employment....”

Section 20.2 makes such rules, and any amendment to such rules, subject to a public hearing and the approval of the State Civil Service Commission.

Unless placed in a different jurisdictional class by the legislature, all positions in the classified service are automatically in the competitive class. Jurisdiction classification concerns the placement of a position in a different jurisdictional class: the exempt, noncompetitive or labor class.

In contrast, position classification of positions is based on the duties and qualification to be performed by the incumbent. A position is reclassified when it is determined that the actual duties being performed are substantially different from those initially set out as the “job description” that recites the duties of the position.

Reclassification is commonly used to correct “out-of-title” work situations or to reflect basic changes in the duties and responsibilities of the position in general or an individual in particular. Reclassification may, or may not, involve a change in the salary grade to which the position is allocated.

The Appellate Division decided that Ensley failed to prove that the city's action in adopting Resolution 98-12 involved the “reclassification” of positions. It then described the city's action as involving the broadbanding, rather than the reclassification, of positions. Having reached this conclusion, it sustained the Supreme Court's dismissal of Ensley's petition.

The court described broadbanding as an action involving the consolidation of assignments under the same title, with no additional examinations required to move between assignments within the title. As to the legal basis for broadbanding, the Appellate Division said that broadbanding was permitted under the Civil Service Law, citing Kitchings v Jenkins, 85 NY2d 694, as authority for this conclusion.

 * In a different context, the term "broadbanding" is sometimes used to describe the process of "zone scoring" a written test.

Direct dealing


Direct dealing
Stillwater Teachers Assoc. v Stillwater CSD, 32 PERB 4914

In labor relations, the term “direct dealing” is used to describe a situation where the employer deals directly with an individual concerning the individual’s terms and conditions of employment instead of dealing with the employee’s collective bargaining representative.

The Stillwater Teachers Association charged the district with an unfair labor practice - direct dealing. The association alleged that the school superintendent had advised a unit employee that if he resigned, the district would reemploy him at a higher salary than permitted by the collective bargaining agreement between the parties.

Administrative Law Judge Susan A. Camenzo concluded that the charge of direct dealing was unsubstantiated. The decision notes that other unit members unhappy with their salary had been told of the possible effects of resignation such as loss of tenure, seniority and were given no promise of reemployment. 

Here, said Camenzo, the employee assessed the risks and “decided on his own to resign and reapply for his old position at a higher contractual salary.

Employment agreements


Employment agreements
Dillon, et al, v City of New York, 238 AD2d 302; Leave to appeal denied, 90 NY2d 811

Typically, an individual is given a letter of appointment upon initial employment setting out the effective date of appointment and other important facts such as title and salary.

In some instances, the parties may enter into a contract. The employment of a school superintendent by a school district is an example of this.

The Dillon case concerns another type agreement that the parties may enter -- one in which the employee agrees to perform service for a specified period of time.

John T. Dillon, Jr. and his co-plaintiffs were appointed as Assistant District Attorneys in Bronx County. Prior to being hired, and as a condition of employment, they each signed a statement acknowledging that: “Assistant District Attorneys are required to abide by a commitment to give four years of initial service to the Office of the District Attorney. Failure to honor that commitment may result in a loss of benefits and an unfavorable termination from the Office.”

This four-year commitment was subsequently changed to three years. Dillon, Michael Newman and Eileen Koretz each submitted their resignations before completing their three-year service obligations. These resignations were apparently disregarded by the District Attorney and notations indicating “Terminated - Did Not Fulfill Commitment” were placed in their respective personnel files. In other words, their separation was deemed a termination, not a resignation.

Among the claims made by Dillon and the others in this litigation was that they had been defamed because of the characterization of their respective departures as a termination rather than a resignation. A State Supreme Court justice denied the district attorney's motion for summary judgment. In considering the district attorney's appeal from this ruling, the Appellate Division, with respect to Dillon's “employment commitment,” said:

“To allow an employee who contractually commits to work a number of years, which is common in many prosecutors' offices, to “resign” prior to satisfaction of the commitment period, and then threaten to sue for defamation if the employer characterizes the employee's departure as termination, would render meaningless the contractual commitment.”

The Appellate Division rejected Dillion's contention that the District Attorney's own, unilateral, reduction of the commitment period from four years to three years, abrogated the contractual commitment. The court said this argument was meritless as the district attorney's action only reduced the extent, and not the obligation, of employees' time commitments.

Exhausting administrative remedies

Exhausting administrative remedies
Jardim v PERB, 265 AD2d 329

The Jardim case demonstrates the importance of exhausting one's administrative remedies before initialing litigation challenging an administrative determination.

A Public Employment Relations Board administrative law judge [ALJ] dismissed improper practices charges filed by Leroy Jardim. Jardim claimed that he had been subjected to disciplinary action as a result of his performing his union duties.

In effect, Jardim alleged that he had been disciplined for performing “protected activities” within the meaning of the Taylor Law -- an unfair labor practice. The ALJ decided that the disciplinary action had not been taken against him because of his union activities.

Jardim then filed a petition with a State Supreme Court appealing the ALJ's determination. This proved to be a fatal procedural error. His petition was dismissed because the court determined that Jardim had not exhausted his administrative remedies. It seems that Jardim elected to file a petition appealing the ALJ's decision in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules instead of filing his “exceptions” to the ALJ's ruling with PERB.

The Appellate Division, Second Department affirmed the lower court's ruling. The court said that “administrative review” was available to Jardim. Thus, the dismissal of his petition by the Supreme Court was appropriate.

The court pointed out that PERB's rules provided for such an administrative review, citing Section 204.10 [4 NYCRR 204.10] of the rules. Section 204.10(a) permits a party to appeal a determination by an ALJ to the board, provided such an appeal -- referred to as “exceptions” to the ALJ's determination -- is filed within 15 working days after the individual has received the ALJ's decision.

Section 204.10 (b)(4) of the rules requires the party filing exceptions to specifically state them in the appeal. Any basis for an exception to a “ruling, finding, conclusion or recommendation” made by the ALJ “which is not specifically urged is waived”.

June 20, 2011

Not being familiar with the rules not a valid excuse for failure to follow procedures


Not being familiar with the rules not a valid excuse for failure to follow procedures
Broome Co. Sheriff's Law Enforcement Supervisors v Sheriff's Department, 32 PERB 3054
Binghamton Police Supervisors Association v City of Binghamton, 32 PERB 3055

Ignorance or a misunderstanding of PERB's rules is not an acceptable excuse as the Law Enforcement Supervisors and Binghamton Police Supervisors decisions illustrate.

The Broome County Sheriff's Law Enforcement Supervisors Association filed a representation petition with PERB's Director of Employment Practices and Representation. The Association wanted to have the Broome County Sheriffs PBA decertified and the Association designated as the collective bargaining representative for a unit consisting of supervisory officers.

PERB’s director of representation dismissed the Association's petition after finding that the “showing of interest” [SOI] simultaneously filed with its petition “did not include a description of the unit the Association alleged to be appropriate....” The section of the Association's SOI form to be used to describe the unit the Association sought to represent was blank. This, said the director, meant that the SOI was not “on a form prescribed by the director” and therefore did not meet the requirements set out in Section 201.4(b) of PERB's' rules [4 NYCRR 201.4(b)].

The Association filed an exception to the director's ruling, contending that it had not been promptly notified of the deficiency and thus was prevented from correcting it in a timely fashion. In addition, the Association's representative said that the representation forms he received from PERB “had not included any form for an SOI petition.”

PERB sustained the director's determination. It said that the rules clearly set out the requirement. “A party who is ignorant of a requirement under the Rules is no differently situated than a person who is mistaken in his or her understanding of the meaning or application of the Rules.”

As an alternative argument, the Association claimed that it used a “floppy disk” of PERB forms that PERB created and offered for sale to the public but that the disk did not contain an SOI petition. PERB rejected the claim, noting that the disk included the SOI petition and “the Association's representative apparently used that computer version of the form to file a corrected SOI petition with the director.”

Commenting that it applies its rules strictly, “especially the Rules pertaining to showing of interest requirements,” PERB sustained the director's dismissal of the Association's representation petition.

In a similar case, Binghamton Police Supervisors Association v City of Binghamton, 32 PERB 3055, PERB rejected the Association's representation petition because, it also, “did not include a description of the unit the Association alleged to be appropriate....”

Determining the “future income” of a disabled public officer or employee


Determining the “future income” of a disabled public officer or employee
Iazzetti v City of New York, 93 NY2d 808

The Court of Appeals' ruling in the Iazzetti case is of importance to public employees, and, in the case of death, their survivors, who are injured while performing their duties.

Mario Iazzetti, an employee of the New York City Department of Sanitation, was injured on the job and was awarded accidental disability retirement benefits - a pension equal to 3/4 of his last annual salary.

Iazzetti and his wife, however, sued the City claiming it was responsible for his disability. A jury awarded them $200,000 in past lost earnings and benefits, $25,000 in past pain and suffering, $750,000 in future lost earnings and benefits, $250,000 in future lost pension, and $25,000 in future pain and suffering. The jury apportioned 80 percent of the responsibility for the accident to the City and 20 percent to Iazzetti.

The City moved to have the award for past and future loss of earnings and for “future lost pension” modified. A State Supreme Court justice ruled that Section 4545(b) of the Civil Practice Law and Rules [CPLR] allowed the City to offset the jury's award for past loss of earnings by the amount Iazzetti had received from his accident disability retirement pension but said the jury's award for future losses could not be similarly reduced. The basis for the ruling: CPLR 4545(b) does not allow defendants to offset future losses.

The City appealed, contending that Section 4545(c) of the CPLR, rather than 4545(b) applied in Iazzetti's case. The Appellate Division agreed with the city. This resulted in a significant difference to the Iazzetties since unlike subdivision (b), subdivision (c) allows the employer to offset both past and future economic losses in such situations. Iazzetti asked the Court of Appeals to review the Appellate Division's ruling.

After a highly technical analysis of the impact of an amendment to the CPLR on its exiting provisions, the Court of Appeals determined that CPLR Section 4545(b) had not been repealed by implication when the Legislature amended the CPLR by adding a new subdivision (c) to Section 4545 and reversed. It ruled that “the Appellate Division erred in applying CPLR 4545(c) to reduce [Iazzetti's] jury verdict for future lost earnings.”

The significance of this ruling: Court and jury awards for future economic losses are permitted where the public employer is held liable, in whole or in part, for the injury or death of its employee.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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