Individual terminated after making false statements to a department investigator  
Foster v Kelly, 55 AD3d 403

New York City Police Department Commissioner Raymond Kelly dismissed a New York City police officer from his position after the officer was found guilty of making false and misleading statements to Department investigators and attempted to influence the testimony of a witness in an official investigation.

The Appellate Division sustained the Commissioner’s decision, holding that substantial evidence supported the finding that officer was guilty of the charges filed against him. Further, said the court, “the penalty of dismissal from employment does not shock the judicial conscience,” citing Kelly v Safir, 96 NY2d 32.

The full text of the decisions is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07960.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of June 18 - 24, 2012 [Click on the caption to access the full report]


DiNapoli: State Lost An Estimated $1.7 Million By Not Claiming Cash Discounts

New York state agencies failed to obtain cash discounts on contracts, wasting up to $1.7 million, according to three reports released Monday by State Comptroller Thomas P. DiNapoli.

DiNapoli Statement on Pew Pension Fund Report

On Tuesday, New York State Comptroller Thomas P. DiNapoli said, “The Pew Report has again recognized the New York State and Local Retirement System as one of the best public pension systems in the country. Our commitment to responsibly manage the system and make required annual contributions has kept us on firm ground. The Pew Report has again recognized the New York State and Local Retirement System as one of the best public pension systems in the country. Our commitment to responsibly manage the system and make required annual contributions has kept us on firm ground. Our diversified portfolio and funding status has permitted us to capitalize on market opportunities and rebound from the financial crisis of 2008–09. More than one million New Yorkers rely on the system for retirement security and I will make sure we continue to make prudent choices to keep our promise to them.”

DiNapoli: State Pension Fund Investing In New York Businesses

New York State Comptroller Thomas P. DiNapoli Tuesday toured the corporate headquarters of 5LINX Enterprises in Rochester to highlight investments made in New York businesses by the New York Common Retirement Fund (Fund). Since 2001, the Fund has invested nearly $60 million in companies in Monroe, Ontario and Genesee Counties through its In–State Private Equity Program.

DiNapoli: Leadership Event To Assist Local Governments 


New York State Comptroller Thomas P. DiNapoli’s Local Government Leadership Institute Wednesday brought together officials from all levels of local government to discuss key regional issues and examine potential solutions to the current challenges in government.

Comptroller DiNapoli Releases Municipal Audit


New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed the audit of the Town of Orchard Park.

Comptroller DiNapoli Releases School Audit 


New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed an audit of the COMMUNITY Charter School.

Section 3020-a Disciplinary Charge Transmittal Form issued by the NYS Department of Education

Section 3020-a Disciplinary Charge Transmittal Form issued by the NYS Department of Education

Source: NYS Department of Education

The New York State Department of Education Teacher Tenure Hearing Unit has promulgated a new form, dated June 2012, that is to be used to transmit disciplinary charges filed against an individual pursuant to §3020-a of the Education Law.

The form states: “The District Clerk or the Secretary of the Board of Education must file this form via fax or mail with the Education Department when the Board of Education has found that there is probable cause to bring charges against a tenured educator.  A copy of the Notice of Probable Cause and the Charges voted on by the Board must be transmitted with this form.”

The form states that the form and disciplinary charges may be FAXed to (518) 402-5940 or they may be mailed to:

The State Education Department

Teacher Tenure Hearing Unit

EBA Room 981

Albany, New York 12234

The form is posted on the Internet at:

http://www.highered.nysed.gov/tcert/pdf/3020achargetransmittal.pdf

===================

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

===================

Action by the Commission on Judicial Conduct to remove a judge from office

Action by the Commission on Judicial Conduct to remove a judge from office
Matter of LaBombard, 11 NY3d 294

The New York State Commission on Judicial Conduct is the state agency responsible for investigating complaints of misconduct against judges of the state unified court system and, where appropriate, determining the penalty to be imposed. The penalty could be "admonishment," censure or remove from office judges found to have engaged in unethical behavior. All determinations by the Commission are subject to review by the Court of Appeals.

The types of complaints that may be investigated by the Commission include allegations of improper demeanor, conflicts of interest, intoxication, bias, prejudice, favoritism, corruption, prohibited business or political activity, serious financial and records mismanagement, assertion of the influence of judicial office for the private benefit of the judge or others, and other misconduct on or off the bench. Allegations of physical or mental disability may also be investigated.

The Commission on Judicial Conduct found that the Honorable Dennis LaBombard, Justice of the Ellenburg Town Court, had engaged in serious judicial misconduct and recommended that he be removed from office. Judge LaBombard asked the Court of Appeals to review the Commission’s determination.

After plenary review of the record in this case, the Court of Appeals said that it agreed with the Commission's recommendation, holding that “the determined sanction of removal should be accepted.”

The Court’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07990.htm

The Commission’s decision is posted on the Internet at:
http://www.scjc.state.ny.us/Determinations/L/labombard.htm

Reinstating an employee to his former position after being found guilty of disciplinary charges ruled irrational under the circumstances

Reinstating an employee to his former position after being found guilty of disciplinary charges ruled irrational under the circumstances
Social Services Employees Union, Local 371 v City of New York Administration for Children's Services, 56 AD3d 322

In this appeal, the Appellate Division vacated a Supreme Court’s confirmation of a disciplinary grievance arbitration award sought by Local 371.

In addition, the Appellate Division specifically granted the Administration for Children’s Services’ (ACS) Article 75 motion objecting to the disciplinary arbitrator’s award providing for the grievant’s reinstatement to his former supervisory position.

According to the ruling, the grievant, a Child Protection Specialist Supervisor II ACS, had pled guilty to grand larceny in the fourth degree. The offense: filing false income tax returns using confidential ACS client information to fraudulently claim entitlement to state and local tax credits.

The Appellate Division said: “We find that the arbitrator's award, which determined that while grievant had engaged in a censurable course of conduct that justified punishment he should be restored to his supervisory position at ACS, is irrational and defies common sense.”

If reinstated to the position of ACS supervisor, said the court, the grievant again would have access to the ACS database from which he extracted the information he used to perpetrate his crime.

The court then remanded the matter to the arbitrator for reconsideration regarding the setting of an appropriate penalty.

The text of the decision in posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08979.htm

Determining the permanent status of police officers designated detective or investigator in jurisdictions where competitive examinations for such titles are not held

Determining the permanent status of police officers designated detective or investigator in jurisdictions where competitive examinations for such titles are not held
Harnischfeger v Moore, 56 AD3d 1131

Civil Service Law §58(4)(c)(ii) provides in relevant part that, "[i]n any jurisdiction, other than a city with a population of one million or more . . ., which does not administer examinations for designation to detective or investigator, any person who has received permanent appointment to the position of police officer . . . or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation."

In this action the Appellate Division decided that the City of Rochester Civil Service Commission does not administer examinations for detective or investigator within the meaning of Civil Service Law §58(4)(c)(ii), nor had it classified these positions within the meaning of Civil Service Law §59-a, -- "Placement of detectives and investigators in classified service."

The New York State Constitution requires that "[a]ppointments and promotions in the civil service of the state . . . shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive. While the Commission used a "merit and fitness test," sometimes called an “unassembled examination,” to determine civil service promotions to these titles (see Civil Service Law §52[2]), the Appellate Division said that it has not shown it would be impracticable to use the "competitive examination" procedures for this purpose.

Therefore, said the court, the Commission's tests for these titles are not the equivalent of the "examinations for designation to detective or investigator" required in order to be exempt from the requirements set forth in Civil Service Law §58(4)(c)(ii) whereby an individual holding a permanent appointment as a “sworn officer” designated as a detective or an investigator attains tenure in such titles upon completing eighteen months of such assigned service.

Only holding "competitive examinations," as traditionally defined, will relieve a jurisdiction from applying the “eighteen month rule” set out in §58(4)(c)(ii) in such situations said the court.

Accordingly, the Appellate Division ruled that Supreme Court should have conducted a hearing to determine whether Harnischfeger and his co-plaintiffs were "temporarily assigned to perform the duties of detective or investigator" for a period of 18 months or longer and remanded the matter to the lower court for further action.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08779.htm

Jerry Boone confirmed as Commissioner and President of the New York State Civil Service Commission

Jerry Boone confirmed as Commissioner and President of the New York State Civil Service Commission

Source: Office of the Governor

On June 20, 2012, Governor Andrew M. Cuomo today announced that the State Senate confirmed Jerry Boone as Commissioner and President of the Civil Service Commission.

Mr. Boone served as the Solicitor General in the New York State Attorney General’s Office from 1991 to 1994. He was the State’s chief appellate lawyer, litigation manager, and bond counsel. Prior to his tenure as Solicitor General, Mr. Boone was the Assistant Attorney General in Charge of the Real Property Bureau in New York City and Albany, as well as Assistant Attorney General in the Litigation Bureau, from 1984-1991.

Mr. Boone is currently the Managing Principal of Boone Consulting, where he has helped develop human resources and operations infrastructure. Earlier, Mr. Boone founded Pride Properties, LLC, in 2008, a company based in Memphis, Tennessee, that focused on the acquisition and rehabilitation of distressed properties to develop quality, affordable housing for sale or rental to lower to middle income households. Mr. Boone still serves as President of the organization, which also offers financial counseling provided for first-time home buyers.

Prior to his founding of Pride Properties, Mr. Boone was the Regional Human Resources, Integration, and Internal Communications Senior Vice President of Harrah’s Entertainment, Inc., Atlantic City. Mr. Boone was in charge of the transition and integration of three acquired casinos into the Harrah’s brand. Mr. Boone has also served as the Corporate Senior Vice President, the Vice President of Human Resources, the Vice President of Casino Operations, and the Vice President of Gaming Executive Development and Corporate Counsel, all for the Harrah’s company.

Mr. Boone received his B.A. from Columbia College.and his his J.D. from Boston College Law School. He was admitted to the New York State Bar in 1986.

Employee terminated after being found guilty of failing to follow proper procedure

Employee terminated after being found guilty of failing to follow proper procedure

Matter of Thomas v County of Rockland, Dept. of Hosps., 55 AD3d 745

A registered nurse at the Summit Park Hospital of the Rockland County Department of Hospitals was served with disciplinary charges alleging misconduct in that she failed to follow proper procedures and she failed to report her alleged error concerning the event.

The hearing officer found the Nurse guilty of all of the charges filed against her and recommended that she be terminated. The Department adopted the findings and recommendation of the hearing officer and dismissed Thomas from her position.

Dismissing the nurse’s appeal, the Appellate Division said that:

1. "The review of administrative determinations in employee disciplinary cases made as a result of a hearing required by Civil Service Law §75 is limited to a consideration of whether the determination is supported by substantial evidence."

2. "Moreover, it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject."

3. "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law’."

In this instance, said the court, the determination that the nurse was guilty of misconduct by failing to properly utilize a defibrillator machine during a "code blue," and then did not report her error, is supported by substantial evidence.

Citing Pell v Board of Education, 34 NY2d at 240, the court said that “it cannot be concluded, ‘as a matter of law, that the penalty of [termination] shocks the judicial conscience.’”

The full text of the decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07924.htm 

Violating of the terms of a disciplinary probationary settlement

Violating of the terms of a disciplinary probationary settlement
Pagan v Board of Educ. of the City School Dist. of the City of New York, 56 AD3d 330

The employee, while serving a disciplinary probationary period, was summarily dismissed for violating the terms and conditions of the probationary settlement agreement.

The Appellate Division dismissed former employee’s petition seeking reinstatement.

The court said that the terms of a signed stipulation to which the individual had agreed set out a three-year probationary period that provided as follows:

1. She was subject to automatic termination if she exceeded 10 days per school year in unexcused absences; and

2. She waived her tenure right to a hearing under Education Law § 3020-a.

Accordingly, the individual was a probationary employee with insofar as any unexcused was involved and was required to show bad faith of the part of the Board of Education in order to succeed in her challenge to her dismissal.

Here, said the court, the evidence did not demonstrate that the former employee had been terminated in bad faith. Rather, the evidence established that during the 2005-2006 school year, she had 11 unexcused absences.

The individual argued that she only had 8 unexcused absences because three of her absences were in connection with court appearances. The Appellate Division held that Pagan’s unexcused absences for court appearances “did not satisfy the terms of the stipulation for excused absences.”

NYPPL Comment: Except where a collective bargaining agreement provides otherwise, a public employee required to appear in a judicial or quasi-judicial proceeding pursuant to a subpoena is typically excused from his or her duties without charge to his or her leave credits. In contrast, an individual who is a party appearing in other than his or her official capacity must charge his or her absence from work to his or her leave credits or be place on leave without pay.

As an example, 4 NYCRR 21.9 of the attendance rules for employees of the State as the employer, address “Leave for subpoenaed appearance and jury attendance.” The rule provides that:

(a) Except as provided in subdivision (b) of this section, on proof of the necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body, an employee shall be granted a leave of absence with pay with no charge against leave credits; provided, however, that this section shall not apply to any absence by an employee occasioned by such an appearance in an action to which such employee is a party; and

(b) An employee holding a position designated as overtime ineligible may be granted a leave of absence with pay with no charge against leave credits on proof of necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body for any period(s) of less than a workweek, regardless of whether such employee is a party to the action.

4 NYCRR 28-1.9 provides for similar absences, with or without pay, by individuals designated Managerial or Confidential within the meaning of Article 14 of the Civil Service Law  [the Taylor Law].


The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08993.htm

===================

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

 =======================

Filing a statutory notice of claim: efforts by an individual to vindicate a personal interest and efforts to vindicate a public interest distinguished

Filing a statutory notice of claim: efforts by an individual to vindicate a personal interest and efforts to vindicate a public interest distinguished
Palmer v Niagara Frontier Transp. Auth., 56 AD3d 1245

A former employee sued the Niagara Frontier Transportation Authority alleging that the Authority terminated his employment in retaliation for his having advised the Authority’s employees and agents of alleged safety violations at his work site.

The Appellate Division ruled that Supreme Court properly granted the Authority’s motion for summary judgment to dismiss individual’s complaint.

The former employee had contended that the Authority had violated Civil Service Law §75-b, the “Whistle Blower Law." However, said the court, in this instance the individual sought only to vindicate his “individual interests," and he had not filed a notice of claim as mandated by Public Authorities Law §1299-p(1) before initiating his law suit. This, explained the court, was a fatal omission on the part of the individual.

With respect to the applicability of the three-month notice of claim requirement of Education Law 3813(1) to statutory or nonjudicial proceedings involving school districts, school boards and boards of cooperative educational services, as well as parallel notice of claim requirements when such proceedings involve other municipal units of government, New York’s courts have distinguished between proceedings which concern an individual’s personal interest [see, for example, Doyle v. Board of Education of Deer Park Union Free School District, 230 A.D.2d 820, a case involving a claim of lost retirement benefits] and those involving an individual seeking to vindicate a public interest (see, for example, Union Free School District No. 6 of Towns of Islip & Smithtown v New York State Division of Human Rights Appeal Board, 35 NY2d 371, at 380, motion to reargue denied 36 NY2d 807).

The general rule: statutes requiring the filing of a notice of claim as a condition precedent to initiating litigation are applicable in actions involving “only a personal interest” but not in actions involving an effort to vindicate a “public interest.”

There as some exceptions to this general rule, however.

PERB, relying on the Court of Appeals ruling in Freudenthal v. Nassau County, 99 NY2d 285, that claims filed with the NY State Division of Human Rights, an administrative agency, do not require the filing of a Notice of Claim pursuant to Education Law Section 3813, has ruled that such notice is not required with respect to improper practice charges filed with it.

Similarly, the Commissioner of Education has held that Section 3813 does not apply to appeals brought under Section 310 of the Education Law [Appeals of Bodnar and DeGiglio, 1990 Opinions of the Commissioner of Education, 12369] while in Mennella v Uniondale UFSD, 287 A.D.2d 636, the Appellate Division decided that a petition filed with the Commissioner of Education may constitute the functional equivalent of a Section 3813(1) notice of claim.

In Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights."

Addressing another aspect of the former employee’s petition, the Appellate Division ruled that his cause of action “is not viable because Civil Service Law §75-b(2)(a)(i) prohibits a public employer from … terminating a public employee based on the employee's disclosure of the ‘violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety’ [and the Authority] established as a matter of law that the safety concerns raised by [former employee] did not present such a danger, and [the individual] failed to raise an issue of fact.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08947.htm

Sanctions ordered after lawsuit filed pursuant to the Freedom of Information Law ruled frivolous
Matter of Fenstermaker v Edgemont Union Free School Dist., 2006 NY Slip Op 52652(U), Decided on September 26, 2006, Supreme Court, Westchester County, Loehr, J. [Not selected for inclusion in the Official Reports, decision affirmed by the Appellate Division, 48 A.D.3d 564]

In this action, State Supreme Court Justice Gerald Loehr, in an exercise of judicial discretion, imposed sanctions on Scott L. Fenstermaker for what Justice Loehr termed a frivolous lawsuit involving his demands for public records pursuant to the Freedom of Information Law [FOIL].

Fenstermaker had asked Supreme Court to direct the Edgemont Union Free School District to provide copies of all records requested in his FOIL request of January 31, 2006 “at the lowest fee collected by the School District on FOIL requests during the period between the enactment of FOIL until the present” and to edit the material “to eliminate extraneous, irrelevant and superfluous documents” from its response to his FOIL request.

Fenstermaker’s request specified 60 categories of financial records that spanned the period from January 1, 2001 to December 31, 2003. Susan Shirken, in her capacity as the School District's Records Access Officer, advised Fenstermaker that two items in his FOIL request would not be provided because “they called for a narrative response and not for records,” but the other 58 other requests were granted subject to some of the records being redacted to delete personal information such has home addresses and Social Security numbers.

Shirken also told Fenstermaker that "When the records have been assembled and boxed up, we will, as you have suggested, have them delivered to an outside contractor for duplication at your expense. I encourage you to confer with [the School District’s counsel] for the purpose of recommending a duplicating contractor for this purpose.” In addition, Fenstermaker was advised that the District would “require that [Fenstermaker] make appropriate advance arrangements to ensure payment … as [the District] cannot permit a situation to develop in which public records might become subject to a contractor's retaining lien for unpaid services.”

Fenstermaker responded, in pertinent part, that:

“We have every intention of using professional copying services equipped to adequately, professionally, and efficiently handle this responsibility. I suggested, in the Request, that [the District’s counsel] and I agree on such a service. I again reiterate that suggestion, notwithstanding your 'requirements.' … ‘As far as ensuring that proper payment arrangements are made we will comply with your requirement that adequate payment arrangements are made. We are confident that, at the conclusion of this matter, we will ultimately be reimbursed by School District funds.’"

According to the decision, the parties agreed that they would use an outside copying service and anticipated having done by a printer in Manhattan in order to find a facility large enough to properly handle the job, which consisted of duplicating the contents of 48 boxes of original records plus several thousand pages of additional material that had to be copied so that the originals could be returned to working files or redacted.

Subsequently Fenstermaker charged the School District with “having created a situation ‘rife with bribes and kickbacks;' that he was certain that [the District] had already altered or destroyed certain of the requested records; that the District's attorney was operating under a conflict of interest in that he was responsible as counsel for [the District’s] malfeasance; and that he [Fenstermaker] was therefore demanding that the records be sent to a copy service designated by him.”

The District responded that the cost of the records it had copied was $4,666.25, at the rate of $0.25 per page, and that the balance of the requested records would be copied by a duplicating service of the School District's choice. It also advised Fenstermaker that he could inspect the records before they were sent out for copying but “they would not be sent out at all unless and until Fenstermaker paid for the copies that had already been made and provided suitable security for payment for the copies to be made."

Fenstermaker reviewed the records and did not claim that any of the records were non-responsive. He did not, however, pay for the copies already made.

He then made a second FOIL request, this time seeking a copy of each FOIL application filled with the School District since the enactment of its FOIL rules and regulations. Shirken granted the request on the condition that the $4,666.25 still outstanding for the copies made pursuant to Festermaker's first FOIL request is paid.

Ultimately Fenstermaker filed an Article 78 petition seeking a court order directing the School District to provide copies of the records requested in his FOIL request at the lowest fee collected by the School District for FOIL requests during the period between the enactment of FOIL and the present.

In his petition, said the court, Fenstermaker “reiterates that he has offered to pay for the entire cost of the copying.” However, he contends that inasmuch as the photocopying service he regularly employs would have charged only $0.15 per page, the District’s unilateral decision to use a service of its own choosing at a cost of $0.25 per page is arbitrary and capricious.

Justice Loehr said that Public Officers Law §87(l)(b)(iii) authorizes an entity subject to FOIL to charge up to $0.25 per page for copies of records. Moreover, once an agency has determined the number of copies requested, it may require that the fee therefor be paid prior to the reproduction of the records and there is no authority for the proposition that the individual who submitted the FOIL request has any right or say in how or by whom the copies shall be made.

Accordingly, the court decided that “[the District’s] decision to send the records to an independent copying service at statutorily authorized price is more than reasonable given the alternative: releasing these original School District records to a copying service where [Fenstermaker] would have had unsupervised access to them” and denied this aspect of Fenstermaker’s petition.

As to Fenstermaker’s seeking an order directing the School District to eliminate extraneous, irrelevant and superfluous documents from its response to his initial FOIL Request, the court said that “This smacks of bad faith” in that Fenstermaker cites no authority for this proposition and “it is undisputed that he was given more than an ample opportunity to review the literally hundreds of thousands of pages of records which he requested - and which required over 177 hours to collect, copy and redact at an estimated cost in lost staff time to the School District of over $14,500 - in order to cull out those records which he did not want copied.” As Fenstermaker "declined to do so, and in so doing manufactured and perpetuated an issue that could have and should have been resolved then," Justice Loehr denied his request.

As to the District’s advising Fenstermaker that his Second FOIL Request would be granted on the condition that he first pay the $4,666.25 outstanding for the copies made with respect to his First FOIL Request, the court noted that Robert J. Freeman, Executive Director of the Committee on Open Government has issued an advisory Opinion in which he stated:

"If an agency has prepared copies of records in good faith and the applicant fails or refuses to pay the fee, I do not believe that the agency would be required to make available those copies that have been prepared. In my view, it follows that an agency should not be required to honor ensuing requests until the applicant has fulfilled his or her responsibility by tendering the fee for copies previously made." This advisory opinion is posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f9659.htm .

Finding that the District’s decision with respect to Fenstermaker’s Second FOIL Request was neither arbitrary nor capricious but reasonable and in accordance with the law, Justice Loehr denied this aspect Fenstermaker claim and subsequently dismissed his Article 78 petition in its entirety.

Turning to the District’s cross-motion asking that sanctions be imposed on Fenstermaker based on its claim that “this proceeding is frivolous and was filed in bad faith,” the court said that it may, as a matter of discretion, award to any party in any civil action or proceeding costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct. Frivolous conduct, said Justice Loehr, includes the filing of a proceeding that is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.

In this instance the court found that Fenstermaker’s Article 78 action was frivolous as “Each of [the District’s] decisions challenged in this proceeding was supported by statute and administrative rulings and [Fenstermaker] cited no authority to the contrary. Accordingly, in addition to statutory costs to be taxed by the Clerk of the Court, Justice Loehr ruled that Fenstermaker was to pay for the "District’s actual expenses reasonably incurred and reasonable attorney's fees" it incurred in defending this proceeding. Expenses and attorney's fees totaled $15,960.

Fenstermaker’s appealed Justice Loehr's ruling, only to have the Appellate Division, repeating Justice Loehr’s finding, hold that “The frivolous conduct in this case was [Fenstermaker’s] initiation of a proceeding that was completely without merit in law and could not be supported by any reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1 [c] [1]).” The Appellate Division then dismiss the appeal.

Justice Loehr's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2006/2006_52652.htm

The Appellate Division’s decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_01343.htm

A collective bargaining agreement can shorten a statute of limitations for bringing a breach of contract action set by law

A collective bargaining agreement can shorten a statute of limitations for bringing a breach of contract action set by law
Sheriff Officers Assn. Inc. v County of Nassau, 21 Misc 3d 1130(A)

Typically an action for breach of contract is governed by a six-year statute of limitations. Here, however, the COB provides that "the President [of the Association] may initiate a grievance... within one (1) calendar year after the occurrence of the event grieved, provided it does not merely affect an individual." This, said Justice McCarty, “effectively shortens the statutory period set forth in CPLR 213(2) of six years to one year with regard to class action grievances brought by the president of plaintiff union....”

Accordingly, said the court, the period for which damages may be claimed with respect to this action is from one year prior to the filing of the grievance, to the present.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52288.htm

Employee loses claim of unlawful retaliation because of her disability after conceding she lacked the seniority required for transfer

Employee loses claim of unlawful retaliation because of her disability after conceding she lacked the seniority required for transfer
Ruane-Wilkens v Board of Educ. of City of New York, 56 AD3d 648

Maryellen Ruane-Wilkens sued the New York City Board of Education in an effort to recover damages for alleged employment discrimination and retaliation pursuant to Executive Law §296. According to the decision, Ruane-Wilkens suffers from a disability.

When she requested a transfer from Prospect Heights High School to a different school, the transfer was denied because “she did not have enough seniority.” Contending that the number of students in her class was temporarily increased from 25 to 40, and she was assigned to teach another class in retaliation for her filing a transfer request, Ruane-Wilkens filed a complaint alleging unlawful employment discrimination due to her disability pursuant to Executive Law §296, the State’s Human Rights Law.

After noting that it is unlawful to retaliate against an employee because he or she opposed statutorily-forbidden discriminatory practices, the Appellate Division said that in order to make a prima facie showing of retaliation, the employee must show that: (1) he or she participated in a protected activity, (2) the employer was aware of his or her participation in that activity, (3) the employer took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action.

Dismissing Ruane-Wikens’ appeal, the Appellate Division held that she failed to present any evidence that her transfer request was denied due to her disability. Indeed, said the court, “[s]he herself conceded that it was denied because she did not have enough seniority.”

As the record contained no evidence that Ruane-Wikens ever complained about any discrimination, the Appellate Division said that she failed to raise a triable issue of fact as to whether she was engaged in an activity which would have given rise to a cause of action to recover damages for employment discrimination or retaliation. Accordingly, said the court, the Supreme Court properly granted the Board of Education's motion for summary judgment dismissing her complaint.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09062.htm

Governor Cuomo and NYSCOPBA Announce Tentative Contract Agreement

Governor Cuomo and NYSCOPBA Announce Tentative Contract Agreement

Source: Office of the Governor

On June 18, 2012 Governor Andrew M. Cuomo and Donn Rowe, President of the New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA), issued a press release announcing that a contract agreement between the State and the Union representing New York State's correction officers. The agreement is subject to ratification by the members of NYSCOPBA.

The proposed agreement resolves outstanding wage and contractual issues dating to 2009 and follows the pattern of recently negotiated contracts. The contract is tentative pending ratification by NYSCOPBA membership.

NYSCOPBA’s Security Services unit is composed of correction officers and sergeants assigned to prisons in the Department of Corrections and Community Supervision. Members of NYSCOPBA have not had a contract since 2008 and opted out of arbitration for the years 2009 through 2011. The press release reports that "This is the first negotiated agreement between the state and NYSCOPBA since 1999. NYSCOPBA and New York State were unable to agree on a contract for 9 years prior to this proposed agreement." 

Highlights of the agreement, which will require ratification by the NYSCOPBA membership, include:

• Zero percent wage increases for the three years 2011-2013, and 2% increases in 2014 and 2015.

• A $1,000 retention bonus paid out $775 in 2013 and $225 in 2014.

• Deficit Reduction Leave of nine days (unpaid leave).

• One retroactive payment that is scheduled to be paid before the end of the calendar year, “only if possible.”

• Health insurance premium share increase by 6% for both individual and families, making the share 16% for individuals and 31% for dependent premiums.

• Officers will receive layoff protection identical to that provided to other unions in labor agreements negotiated since last year. 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.

Probationary employee terminated for alleged misuse of sick leave

Probationary employee terminated for alleged misuse of sick leave
Curcio v New York City Dept. of Education, 55 AD3d 438

The New York City Department of Education dismissed a probationary physical education teacher, Louis Curcio, from his position and simultaneously reemployed him as a tenured teacher under his common branch license.

In response to Curcio’s petition seeking reinstatement as a probationer in his former physical education teacher position Supreme Court, New York County Justice Shirley Werner Kornreich, denied the Department of Education’s motion to dismiss so much of the petition as sought review of the termination of Curcio's probationary employment under his physical education license. Justice Kornreich also reinstated petitioner's physical education license nunc pro tunc*  to May 15, 2006.

The Department appealed. The Appellate Division “unanimously reversed” Justice Kornreich’s reinstating Curcio’s physical education license and dismissed Curcio’s petition challenging his termination.

Curcio had sued the Department for terminating his probationary employment under his physical education license. The Department had dismissed him because of Curcio’s alleged premeditated misuse of sick leave. The Appellate Division said that Curcio petition challenging his dismissal from his probationary employment should have been dismissed as he failed to establish that his termination "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith."

On a related issue, the Appellate Division noted the record shows that Curcio was not given the requisite 60-day statutory notice that his probationary employment was being terminated by the Department.

Typically such a lack of notice would have entitled Curcio to one day's pay for each day the notice was late. Here, however, the court determined that Curcio was not entitled to such payment because after being terminated from his probationary employment, he immediately resumed his duties at the same school and at the same rate of pay under his common branch license under which he was fully tenured.

* Nunc pro tunc [Latin for "now for then"] refers setting an earlier date for the effective date of an order or judgment, giving it a “retroactive” legal effect.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08020.htm