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

November 25, 2011

Defamation action based on the publication of a judicial decision fails

Defamation action based on the publication of a judicial decision fails
Panghat v New York State Div. of Human Rights, 2011 NY Slip Op 08475, Appellate Division, First Department

Lijo Panghat, alleging that he had suffered defamation as the result of the New York State Division of Human Rights’ having published of a judicial decision in a related matter on its website, sued the Division in the Court of Claims.

The Appellate Division affirmed the Court of Claims’ dismissing his complaint, commenting that Civil Rights Law §74 prohibits a civil action that alleges injury as a result of "the publication of a fair and true report of any judicial proceeding." Further, said the court, “The privilege under that statute is absolute and applies even in the face of allegations of malice or bad faith.”

Civil Rights Law §74 grants certain privileges in situations involving an action for libel. The section provides that “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.”

§74, however, states that it “does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.”

The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable

The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable
Decisions of the Commissioner of Education # 16,313.

Pursuant to the authority set out in Education Law §2568,* a employee of the New York City Department of Education [H.C.A.] was directed to report for a medical examination.

Contending that, among other things, the order directing H.C.A. to report for the medical examination constituted retaliation against H.C.A as the result of the filing an EEOC complaint against the Department alleging sexual harassment and retaliation, the employee appealed to the Commissioner of Education. 

The Department, however, asked the Commissioner to dismiss H.C.A’s appeal as moot “ because it had canceled and had removed the request for the examination from H.C.A’s personnel file.

The Commissioner, commenting that only matters in actual controversy will be considered and no decision will be promulgated involving a situation that longer exist or which subsequent events “have laid to rest,” granted the Department’s motion to dismiss.

As the only relief H.C.A requested “was interim relief and removal of the medical evaluation request from her personnel files,” which the Department represented it had already done in its answer to H.C.A ‘s appeal, the Commissioner dismissed H.C.A‘s appeal as moot but commented that H.C.A. has the right to commence an appeal with a request for interim relief in the event Department took such action in the future.

* §2568, which authorizes the Superintendent of schools to require medical examination of certain employees of certain boards of education, provides, in pertinent part: The superintendent of schools of a city having a population of one million or more shall be empowered to require any person employed by the board of education of such city to submit to a medical examination by a physician or school medical inspector of the board, in order to determine the mental or physical capacity of such person to perform his duties, whenever it has been recommended in a report in writing that such examination should be made.



Unpaid deferred salary increases not included in determining a retirement allowance


Unpaid deferred salary increases not included in determining a retirement allowance
Kivo v. Levitt, 67 AD2d 464

The salary increase negotiated by the employee’s union to Kivo. Instead the payment was deferred under the New York State Financial Emergency Act for the City of New York. The employee then retired. 

When the amount of the deferred salary increase was not included in the calculation of the employee’s final average salary for retirement purposes, Kivo sued.

The Appellate Division ruled that a public employer may not agree through a collective bargaining agreement to give retirement benefits that are contrary to state law.

The Retirement and Social Security Law provided that deferred or suspended wages, the payment of which depended upon the occurrence of some future event, are not includable for the purposes of calculating final average salary for retirement.

The Court of Appeals, in affirming the Appellate Division [see 50 N.Y.2d 1017], expressed no opinion as to the result had the deferred payments actually been made to Kivo prior to her retirement “for this question is not presented by the facts of this case”.

This suggests that had Kivo actually received the payment, even as a lump sum, before retirement, the court would have permitted the amount received to have included in the calculation of final average salary.

Residence in a jurisdiction as a qualification for appointment


Residence in a jurisdiction as a qualification for appointment
Op St Comp 80-11

The State Comptroller has issued an opinion indicating that an employee of a municipal Department of Sanitation may not be required to reside in the municipality.

The Comptroller noted a section of the Public Officers Law that excepted sanitation workers from automatic removal from their position if they cease to be a resident of the municipality.

Failure to admit having a criminal conviction results in removal from state job


Failure to admit having a criminal conviction results in removal from state job

An arbitrator held that the State acted properly when it removed an employee form his position upon discovery that he had failed to report his earlier conviction on the application form for his job.

The employee had indicated that he had never been convicted when in fact he had been convicted of a number of crimes.

The Civil Service Law (Section 50.4) provides for the removal of an employee found to have falsified his application form. In such cases the law requires that the employee be given an opportunity to explain the matter before being removed from the position.

It appears that the reason for the employee’s removal was the falsification of the information on the application form, not the fact that he had earlier been convicted.

Generally the employee or applicant having a criminal conviction in his record may not be barred from employment unless the offense is found to be job related and has a potential for a breech of faith or a related problem.

For example, conviction for illegal possession of a drug might be a basis for disqualifying a person seeking a position in a pharmacy where controlled substances and drugs are typically available for dispensing but probably would not be relevant in connection with a clerical position in an office.

November 23, 2011

Transfer of leave credits between jurisdictions may be permitted


Transfer of leave credits between jurisdictions may be permitted
Op St Comp 79-610

The State Comptroller has issued an opinion in which he states that a town may permit employees who transfer to the town from another municipal employer to bring all or some of their annual and sick leave credits with them.

Such a procedure may be authorized by a local law, provision of the controlling collective bargaining agreement or a resolution.

Employer rejects disciplinary hearing officer's recommendation as to the penalty to be imposed


Employer rejects disciplinary hearing officer's recommendation as to the penalty to be imposed
Matter of Stanziale, 77 A.D.2d 600

An employee not entitled to notice and hearing pursuant to §75 of the Civil Service Law was terminated because of an incident that took place while at work.

He then was able to get a court order directing that the employer provide him with an opportunity to refute the allegations that resulted in his dismissal. A hearing was held and the hearing officer recommended that the penalty to be imposed be a six-month suspension without pay.

The appointing officer declined to follow the recommendation of the hearing officer and dismissed the employee, again. The employee went back to court and obtained an order directing his reinstatement on the grounds that the decision of the appointing officer was arbitrary and capricious.

Ultimately the Appellate Division ruled that although the employee was not entitled to a hearing under the Civil Service Law or the controlling collective bargaining agreement, as the basis for dismissal was of a stigmatizing nature, he was entitled to due process.

However, that was the extent of the relief to which Stanziale was entitled. As there was a rational basis for the appointing officer rejecting the recommendation of the hearing officer and dismissing the employee for the offense, the court held that the termination was neither arbitrary nor capricious and was made in good faith.

This case appears to be one of a number decided in recent years where a person not entitled to a hearing as a matter of law or contract can demand one if dismissed for what a court would view as reasons tending to stigmatize the individual.

However, if the terminated employee is vindicated as the result of a “name clearing” hearing a court may direct that the individual be reinstated where it finds that the appointing authority’s  decision to remove the employee, or possibly even the implementation of a lesser penalty, was arbitrary.

Salary due estate of deceased employee



Salary due estate of deceased employee
Op St Comp 79-881

The State Comptroller has advised that a pay check payable to a deceased employee is to be returned to the fund from which it was drawn and then paid to the person legally entitled to receive the money.

November 22, 2011

The public policy exception considered by the courts reviewing an arbitrator’s award not absolute and the issues being decided or the relief granted must be considered

The public policy exception considered by the courts reviewing an arbitrator’s award not absolute and the issues being decided or the relief granted must be considered
City School Dist. of the City of New York v McGraham,  2011 NY Slip Op 08228, Court of Appeals

A tenured high school teacher was served with disciplinary charges pursuant to Education Law §3020-a alleging she engaged in improper conduct with a 15-year-old male student when she corresponded with the student electronically after regular school hours.

Although it was alleged the correspondence involved “a variety of personal matters and tried to discuss with him the nature of their relationship, which, in her view, was potentially romantic,” there was no physical contact, let alone a physical relationship, between the two and none of her communications were of a sexual nature.” Further, the two never met outside of school grounds.

The hearing officer found the teacher guilty of three of the five specifications preferred against her. In addition, the hearing officer determined that the teacher had engaged in inappropriate communications of an intimate nature with the student, which activities constituted conduct unbecoming her position as a teacher.

Considering that the teacher was remorseful for her conduct and that she sought therapy soon after her behavior came to light, the hearing officer, believing that teacher would repeat such conduct, a penalty of a 90 day suspension without pay and reassignment to a different school upon her reinstatement.

The New York City School District filed an Article 75 petition seeking to vacate the arbitration award, contending that the penalty imposed was irrational and contrary to the public policy of protecting children.*

Affirming the Appellate Division ruling, the Court of Appeals rejected the School District’s and held that the arbitration award did not violate public policy. Explaining that courts will only intervene in the arbitration process in those "cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator," the Court of Appeals said that “[l]ooking at the award on its face, it cannot be said that either statutory or common law prohibits the penalty imposed by the hearing officer.”

The court indicated that although it cannot be disputed that the State has a public policy in favor of protecting children, this is not the type of absolute prohibition from arbitrating a "particular" matter necessary to invoke the public policy exception and to overturn the arbitral resolution.

In addition, the court found that the arbitration award was not arbitrary and capricious or irrational in that the hearing officer “engaged in a thorough analysis of the facts and circumstances, evaluated [the teacher’s] credibility and arrived at a reasoned conclusion that a 90-day suspension and reassignment was the appropriate penalty.”

In this instance, said the court, the penalty imposed was rational. Notwithstanding the “serious misconduct” of the teacher, in this case the hearing officer, finding the teacher remorseful and that her actions were unlikely to be repeated, concluded that her termination was not mandated.

Although, said the Court of Appeals, “reasonable minds might disagree over what the proper penalty should have been” this disagreement does not provide a basis for vacating the arbitral award or refashioning the penalty.

* In the course of these appeals the teacher was terminated because she allowed her teacher's certification to lapse. However, the Court of Appeals, citing Brooklyn Audit Co. v Department of Taxation & Fin., 275 NY 284, said that as the School District sought to terminate the teacher pursuant to §3020-a “in an effort to prevent her from being in a position to obtain future employment with the Department of Education,” the appeal was not moot.

Independent determination needed by town board

Independent determination needed by town board
Ross v. Town Board of the Town of Ramapo, 78 A.D.2d 656

A police officer was injured in a fall. His application for an accidental disability retirement allowance under the Retirement and Social Security Law was denied by the Retirement System. The Town of Ramapo continued to pay the officer’s full salary (see Section 207-a, General Municipal Law) until the Town Board passed a resolution terminating the employment almost four years later.

The Board had relied upon the determination by the Retirement System that the injury was not service related. The Court ordered the police officer reinstated, holding the Board’s action did not provide the required due process.


The critical issue appears to be that the Retirement System had not made a “final determination” and the Board would have to make an independent determination as to the job-relatedness of the injury. The Court said “(the Board cannot) deny these (Section 207-a) benefits...based upon the finding of another State agency ... not yet final and which is predicated upon a different standard of proof”.

The decision in Economico (50 NY2d 120) was distinguished in this case. In Economico the injury involved was conceded not to be service related. This decision suggests that the employer must take independent action to remove a police officer from the payroll when it believes that the injury was not service related within the meaning of Section 207-a.

Police sick-out violates Taylor Law

Police sick-out violates Taylor Law
Police Benevolent Association of the City of Yonkers v. New York State Public Employment Relations Board, 51 N.Y.2d 779

The Court of Appeals upheld PERB’s ruling that the Yonkers Police Union was involved in an illegal.

PERB had found the Union had supported or condoned two “sick-outs.”  

While the court said the mere showing that a significant number of union members have engaged in a strike would not be sufficient to prove a violation of the Taylor Law by the Union, statements of union leaders, combined with the fact of the strike itself and the other evidence adduced at the hearing held by PERB was sufficient to provide “substantial evidence” of the violation.



Validation requirements for civil service test

Validation requirements for civil service test
Guardians v. Civil Service Commission, 23 FEP Cases 909

The Circuit Court of Appeals for the 2nd Circuit (New York) has rejected a rigid and literal application of the EEOC Guidelines on test validation.

The Court adopted a “functional” approach, holding an acceptable content validation study may consist of a suitable job analysis, reasonably competent examiners, a relationship between the test content and the job and a scoring system which can be used to select from those better able to do the job.

In addition, the Court indicated that permissible use of rank ordering requires a demonstration that the point differences used reflect differences in job performance.



November 21, 2011

Negotiating job security provisions in the course of collective bargaining

Negotiating job security in the course of collective bargaining
Johnson City Professional Firefighters Local 921, 18 NY3d 32

Frequently an employee organization will attempt to include a “job security provision in the collective bargaining agreement by having a “no layoff” clause in the agreement. The impact of such a provision was considered by the Court of Appeals in the Johnson City Professional Firefighters Local 921 case.

The Village of Johnson City and Johnson City Professional Fire Fighters, Local 921 IAFF executed a collective bargaining agreement (CBA) containing a “no-layoff clause” that provided as follows:

     “A. The Village shall not lay-off any member of the bargaining unit during the term of this contract.

     “B. The Village shall not be required to 'back fill' hire additional members to meet staffing level of expired agreement."

The parties further agreed that disputes concerning the interpretation of this clause, and any other provision of the CBA would ultimately be subject to arbitration before the Public Employment Relations Board (PERB).

When the Village abolished a number of positions, including six firefighter positions due to “budgetary necessity,” the union, pointing to the no-layoff clause, filed a grievance with the Village. The Village denied the grievance and Local 921 sent the Village a notice of its intent to arbitrate. Local 921 then filed a petition seeking a court order barring the Village from terminating the six firefighters pending a determination through arbitration. Simultaneously, the Village brought a proceeding to stay any arbitration.

Supreme Court and the Appellate Division both held that the no-layoff clause was not subject to any prohibition against arbitration and that, given the CBA's broad grievance and arbitration provision, the issue was arbitrable (see 72 AD3d 1235, 1237-1238 [3d Dept 2010]). The Court of Appeals reversed the lower courts’ rulings.

The Court of Appeals agreed with the Village’s contention that the termination of the six fire fighters did not fall within the no-layoff clause and therefore was not arbitrable under the contract. Citing Matter of Board of Educ. of Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, the court explained that “Not all job security  clauses are valid and enforceable, nor are they ‘valid and enforceable under all circumstances’"

In Yonkers Fedn. of Teachers, the Court of Appeal held that a "job security clause that provided that "During the life of this contract no person in this bargaining unit shall be terminated due to budgetary reasons or abolition of programs but only for unsatisfactory job performance and provided for under the Tenure Law, was ”explicitin its protection of the [workers] from abolition of their positions due to budgetary stringencies."

In contrast, in Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers [Crossing Guard Union], 39 NY2d 964, the Court of Appeals concluded that the CBA’s clauses providing that "Present members may be removed for cause but will not be removed as a result of Post elimination" did not constitute a "job security" provision similar to those used Yonkers Fedn. of Teachers, and held the language in Crossing Guard Union was ambiguous.

Similarly, in the Local 921 case the Court of Appeals concluded that the no-layoff clause in its CBA was not arbitrable because it was not “explicit, unambiguous and comprehensive.”

The Court of Appeals explained that as a matter of public policy, "job security clauses must meet a stringent test. In the event a municipality bargains away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons, the parties must explicitly agree that the municipality is doing so and the scope of the provision must evidence that intent. Otherwise, said the court, a municipality's budgetary decisions will be routinely challenged by employees, and its ability to abolish positions or terminate workers will be subject to the whim of arbitrators.

The Court of Appeals set out the following three prongs test that must be met in order to demonstrate that the job security  provision in a collective bargaining agreement does not violate public policy.

  1. The provision is "explicit;"
  1. The CBA extends for a "reasonable period of time;" and
      3.  The CBA was "negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power." 

As the clause relied upon by Local 921 did not explicitly protect the firefighters from the abolition of their positions due to economic and budgetary stringencies, the court ruled that it was ambiguous and thus did not constitute an “explicit” provision barring such layoffs.

In the words of the Court of Appeals, “Simply put, because the clause [was] not explicit, unambiguous and comprehensive, there is nothing for the Union to grieve or for an arbitrator to decide. Having concluded that this dispute is not arbitrable for reasons of public policy, we need not reach the issue of whether the parties agreed to arbitrate.”

Use of section 64(3) of civil service law limited

Use of section 64(3) of civil service law limited
Coxen v. Meyer, 81 A.D.2d 1044

When Suffolk County dismissed its consulting firm supervising the construction of a sewer project, the State and Federal governments threatened to cut off funds unless the County provided for the required supervision of the project.

Using Section 64.3 of the Civil Service Law, the County hired an inspection staff without resorting to available eligible lists which the Court found could have been used for the appointments.

Holding that exceptions to the general civil service policy of filling vacancies in the classified service from appropriate eligible lists is to be strictly construed, the 64.3 appointments were declared unlawful. While 64.3 permits appointments without the use of eligible lists, such appointments are authorized only in exceptional cases.

The provision requires that it would not be practical to hold an examination of any kind to fill the vacancy. The fact that suitable eligible lists were already available was critical as it obviated any argument that it would not be practical to hold the test.

Claim for back pay denied


Claim for back pay denied
Golomb v. Board of Education, 106 Misc. 2d 264, 92 A.D.2d 256

A probationary teacher was terminated by the principal. One year later she was reinstated by the Chancellor of the Board of Education, City of New York because he did not agree with the recommendation to terminate.

The teacher then sued for back salary.

The Court denied the award of back pay stating that the teacher “has no basis for her claim to entitlement of back pay upon her reinstatement...An employee who has not worked has not delivered consideration for the payment of wages. Thus in the absence of a statute requiring the payment of back pay upon reinstatement, a public body is not required to pay back wages since such a payment would be an unconstitutional gift of funds.”

 It should be noted, however, that where there has been an unlawful removal from service, back pay is authorized upon reinstatement. In these cases the Court found that the teacher had no independent right to permanent employment. Her termination was viewed as lawful and therefore she was not entitled to back salary.

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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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