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

January 11, 2013

NYS Department of Civil Service has issued a revised “Agency Reduction Transfer Lists” procedure applicable to officers and employees of the State as the employer


NYS Department of Civil Service has issued a revised “Agency Reduction Transfer Lists” procedure applicable to officers and employees of the State as the employer
Source: New York State Department of Civil Service Policy Bulletin #13-01

N.B. Policy Bulletin #13-01 supersedes Policy Bulletin #04-01

The Department of Civil Service’s Policy Bulletin #13-01 states that §78 of the Civil Service Law permits the transfer of employees, without examination, "from one department or agency to another department or agency of the State where necessitated by reasons of economy, efficiency, consolidation or abolition of functions, curtailment of activities or otherwise." The Policy Bulletin also notes that the Agency Reduction Transfer Program is a “discretionary tool” to be used to realign the workforce to meet programmatic and/or fiscal needs. Participation is voluntary on the part of eligible employees.

Those eligible for the ARTL program include:

1. Permanent and contingent permanent competitive class employees and eligible permanent non-competitive class and labor class employees whose positions may be impacted as a result of an action taken by reason of economy, efficiency, consolidation, or abolition of functions, curtailment of activities or otherwise.

2. Permanent and contingent permanent competitive class employees and eligible permanent non-competitive and labor class employees whose positions are relocated to a different county, and decline reassignment.

Policy Bulletin #13-01 notes that an agency may, at its discretion, extend ARTL eligibility to other employees in the titles. However, whatever method an agency chooses to determine eligibility must be objective and consistent across titles, and based upon operational needs. The Civil Service Department may extend eligibility to permanent, non-tenured, non-competitive and labor class employees.

Among those ineligible for the ARTL Program are:

1. Exempt class employees

2. Non-competitive class employees serving in policy-influencing or confidential positions

3. Provisional employees

4. Temporary employees

5. Employees who decline reassignment within the same county

6. Employees impacted by the return of incumbent in accordance with §§4.11 and 4.12 of the Classified Service. (4 NYCRR section 4.11 and 4.12)

The Civil Service Department has posted the text of Policy Bulletin #13-01 on the Internet at:


Failing to comply with the notice requirements for filing a demand for arbitration set out in the collective bargaining agreement is a fatal procedural defect


Failing to comply with the notice requirements for filing a demand for arbitration set out in the collective bargaining agreement is a fatal procedural defect
In the Matter of the Arbitration between Livingston County and the Livingston County Civil Serv. Employees Assn., Inc., Local 1000, 2012 NY Slip Op 08985, Appellate Division, Fourth Department

The County and Local 1000 of the Civil Service Employees Association, Inc. were involved in a grievance that was at the various steps set out in the CBA’s contract grievance procedure article. Ultimately the County denied the grievance by a written decision dated October 4, 2011. CSEA then advised the County by a letter dated October 27, 2011 that it intended to submit the grievance to arbitration. The County received CSEA’s letter on October 28, 2011.

The critical provision in the CBA central to this litigation required "[c]ompliance with the time limits for submitting a notice of intent to arbitrate [and such compliance] shall be a condition precedent to arbitration". The CBA also included a provision stating that "Failure to submit a notice of intent to submit a grievance to arbitration . . . shall thus bar the grievance from proceeding to arbitration."

The time limits set out in the CBA required that the party demanding arbitration must notify the other party of its intention to submit the matter to arbitration “no later than 15 working days after a written decision was issued at the second step of the grievance process.”

Livingston County asked Supreme Court to stay arbitration, contending that CSEA’s demand to submit the grievance to arbitration was untimely as it had not been notified of CSEA’s intent to do so within 15 working days of date of its denial of the grievance.

Supreme Court denied the County’s petition; the Appellate Division unanimously reversed the lower court ruling “on the law.”

The Appellate Division explained that although the CBA between the parties sets out a “broad arbitration agreement,” it also contains an express provision establishing a condition precedent to submitting the matter to arbitration and CSEA had not complied with this condition precedent..

The court also noted that where such a condition precedent is expressly made part of the CBA, the issue of compliance with the condition is for the court to decide in the first instance.


January 10, 2013

A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination


A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination
Denhoff v Mamaroneck Union Free Sch. Dist., 2012 NY Slip Op 08729, Appellate Division, Second Department

A §3020-a arbitrator sustained disciplinary charges filed against a guidance counselor and held that the school district had just cause to terminate her from her position. Supreme Court dismissed the guidance counselor’s petition and the Appellate Division affirmed the lower court’s ruling.

The arbitrator had found the guidance counselor guilty of 27 specifications of misconduct set out in 14 charges related to the guidance counselor’s conduct over the course of three years that involved a pattern of "harassing, demeaning, and continuous bullying of her less senior colleagues, as well as efforts to sabotage the ability of certain colleagues to gain tenure."

The Appellate Division, noting that Education Law §3020-a(5) limits judicial review of an arbitrator's determination, said that where, as here, parties are subject to compulsory arbitration, the award must not only satisfy the provisions set out CPLR §7511[b][1][i], [iii], [iv,] the award must satisfy yet an additional layer of judicial scrutiny, namely having evidentiary support and neither being arbitrary nor capricious. Further, the court said that "When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists," citing Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012.

On appeal the guidance counselor challenged the arbitrator's finding her guilty of several of the charges sustained against her that the court said were raised for the first time on appeal. Accordingly, an appeal of those elements of the award were not properly before the court. 

As to those charges and specifications properly before the Appellate Division, the court found that the award was not arbitrary and capricious nor irrational, and that there was evidentiary support for the arbitrator's finding of guilt as to each of the charges.

In particular, the Appellate Division commented that the arbitrator “engaged in a thorough analysis of the circumstances, evaluated the witnesses' credibility, and arrived at a reasoned conclusion that termination of the [guidance counselor's] employment was an appropriate penalty.” In other words, the Appellate Division found that “[I]t was rational for the arbitrator to find that the guidance counselor’s actions warranted termination under the circumstances of this case.”

The decision is posted on the Internet at:

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A Reasonable Disciplinary Penalty Under the Circumstances - A guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. Click on http://nypplarchives.blogspot.comfor additional information about this 600+ page electronic [e-book] publication.

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Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court


Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court
Storman v New York City Dept. of Educ., 2013 NY Slip Op 50007(U), Supreme Court, New York County

A teacher employed by the NYC Department of Education for approximately 30 years challenged his receiving an unsatisfactory rating as a result of allegations of sexual misconduct and corporal punishment made by a student. The teacher contended that the student's allegations were made in retaliation for his "verbally reprimanding a student."

Ultimately Supreme Court granted the teacher’s petition to annul the unsatisfactory rating, explaining "it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment" and "the penalty imposed was excessive and shocking to the conscience." This Court ordered that the unsatisfactory rating be annulled and that "this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court's decision."

The purpose of remitting the case to DOE was for DOE and teacher's union, the United Federation of Teachers (UFT), to take the appropriate steps to remedy the consequences of the underlying false allegations so that teacher would be properly compensated and his employment status restored.

The unsatisfactory rating was annulled by DOE but DOE did not take any steps to compensate the teacher or to remedy his employment situation. The teacher then asked the court to hold DOE in contempt. Supreme Court did hold DOE in contempt for its “willful and contumacious failure to comply with the Judgment,” but this determination was vacated by the Appellate Division, which found that the Contempt Order was based on an earlier Judgment that did not contain a "clear and unequivocal mandate."

In response to the Appellate Division’s granting the teacher leave to have Supreme Court clarify its Judgment by issuing was it termed "a clear and unequivocal mandate" to DOE. Supreme Court said that “In order to finally put an end to this unfortunate saga,” which began in 2004, this Court will be perfectly clear and unequivocal about what DOE must do and by when it must be done. 

By April 5, 2013, said the court, DOE shall do the following:

1. remove all references to the underlying false accusations from the teacher’s personnel file; and

2. restore back pay, with interest, that the teacher did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits.

The court also directed that in the event a dispute arises between the parties before April 13, 2013, “the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to the teacher, the teacher is granted leave to move to have such calculation referred to a Special Referee to hear and report.”

Finally, said the court, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with the teacher about back pay, the teacher has leave to move for contempt, as DOE “can no longer maintain that its mandate is not clear and unequivocal.”

The decision is posted on the Internet at:

January 09, 2013

Collective bargaining agreements relied upon did not obligate the employer to maintain a retiree’s health insurance coverage at the level in place at the time of his or her retirement


Collective bargaining agreements relied upon did not obligate the employer to maintain a retiree’s health insurance coverage at the level in place at the time of his or her retirement
Kolbe v Tibbetts, 2012 NY Slip Op 08899, Appellate Division, Fourth Department

Certain retirees of the Newfane Central School District sued the District alleging that it had breached the terms of various collective bargaining agreements [CBA] with respect to their health insurance benefits in retirement. The retirees contended that their health insurance benefits were governed by each collective bargaining agreement (CBA) that was in effect at the time each plaintiff retired and that those benefits could not be changed or modified.

Each CBA in effect at the time of the retirees' respective retirements set forth a nominal co-pay for prescriptions in accordance with the health care plan that was in effect at that time. In December 2009, each retiree was notified that, pursuant to the CBA effective January 1, 2010, the co-pay for prescriptions would be significantly increased. Plaintiff-retirees alleged that they were not obligated to pay the higher co-pay but, rather, were obligated to pay only the co-pay rate that was in effect at the time of their respective retirements.

Supreme Court granted the retirees’ motion seeking summary judgment. The Appellate Division decided otherwise, Justices Lindley and Whalen dissenting, and ruled that Newfane was not obligated to maintain health insurance coverage equivalent to that in effect at the time each plaintiff retiree retired with respect to each such individual.

The Appellate Division said that the language at issue was set out in each relevant CBA and provided, in pertinent part, "[t]he coverage provided shall be the coverage which is in effect for the unit at such time as it is provided to the employee." In subsequent CBAs, said the court, the language at issue stated that "[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires."

The CBAs further provided that retired employees shall be eligible to "continue group health insurance" upon the payment of a monthly premium to the District.”

The Appellate Division said that Supreme Court erred in holding that the language of the respective CBAs provided that the prescription co-pay amount could not be altered in view of the several CBAs providing that unused sick leave could be used to pay for health care coverage.

The court pointed out that “The unambiguous language … provides that, at the time of his or her retirement, the retiree is entitled to the same coverage that is provided to the bargaining unit.” The language, said the court, does not specify that an equivalent level of coverage will continue during retirement. In other words, said the court, “the respective CBAs do not provide that the level of health coverage will not be reduced or that the annual cost will not increase.”

Finding that the benefits for represented employees were “likewise reduced,” the Appellate Division concluded that the School District complied with the statutory requirement that they not reduce the retirees’ coverage below the level of coverage provided to active employees.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08899.htm

Reinstated administrator entitled to back salary and benefits from the date of his termination until the date of his reassignment by the employer


Reinstated administrator entitled to back salary and benefits from the date of his termination until the date of his reassignment by the employer
Appeal of Ford from actions of the Board of Education of the City School District of the City of Troy, et. al., Decisions of the Commissioner of Education, Decision #16,443

The Commissioner sustained Tracy Ford’s challenge to his termination by the City School District of the City of Troy [Board] in part.

Ford, a certified School Administrator and Supervisor and School District Leader, was appointed to a position in the K-12 administrative tenure area as an Elementary School Principal effective September 17, 2007. This appointment was subject to Ford’s satisfactory completion of a probationary period and he was subsequently advised that he had been granted tenure in the title effective September 1, 2010.

On May 20, 2011, the Board notified Ford that his position was abolished and as he was the least senior employee in his tenure area he would be terminated effective June 30, 2011. Ford appealed, contending that he was improperly tenured in the elementary principal tenure area instead of the K-12 administrator tenure area.  Accordingly, Ford argued, he was improperly terminated because he was not the least senior administrator in the K-12 administrative tenure area or, alternatively, that he was entitled to fill a vacant position in the K-12 administrative tenure area when his position was abolished. 

The Board then adopted a resolution rescinding its action terminating Ford and “clarified” his tenure area as Administrator K-12. It then reassigned Ford to School 16, effective August 26, 2011.

In rebuttal to Ford’s seeking to have the Board’s actions excessing him declared null and void and reinstatement to an administrative position within the district, with full seniority rights, benefits and pay retroactive to June 30, 2011, the district argued that Ford failed to meet his burden of demonstrating a clear legal right to the relief he requested and that the petition must be dismissed as moot and untimely.

In support of its argument, the District pointed to its September 7, 2011 board resolution rescinded its action terminating Ford and his reinstatement to a principal position in the K-12 administrative tenure area.

Noting that an appeal will only decide “matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest,” the Commissioner said that to the extent that Ford challenged his termination in June 2011 or requests reinstatement to a position in the K-12 administrative tenure area, these claims are moot.”

However, said the Commissioner, Ford’s request for relief also included seniority credit, benefits and pay retroactive to June 30, 2011, contending that he had not been paid and/or received benefits and/or accrued seniority credit from June 30, 2011 through August 26, 2011. This aspect of Ford’s appeal was not rendered moot by the Board’s action.

The Commissioner said that the Board resolution clearly rescinded its action to terminate Ford in June 2011. However, said the Commissioner, as the Board continued Ford’s employment as an elementary principal in the district from June 30, 2011 until he was reassigned to School 16 on August 26, 2011, he is therefore entitled to receive salary, benefits and any seniority credits accrued during this time period.

Under the circumstances the Commissioner declined to dismiss this aspect of Ford’s claim as untimely and ordered the Board to reinstate him with back pay, benefits and seniority credit retroactive to June 30, 2011.

The decision is posted on the Internet at:

January 08, 2013

Resolving the layoff rights of a teacher granted tenure in an unauthorized tenure area


Resolving the layoff rights of a teacher granted tenure in an unauthorized tenure area
Thorenz v Board of Educ. of The Monticello Cent. Sch. Dist., 2012 NY Slip Op 09135, Appellate Division, Third Department

A teacher was granted tenure by the School Board in the special subject tenure area "In-School Suspension" and continued serving in that capacity until 2010 when she was notified that “the Board determined that it was ‘necessary to eliminate a teaching position in the In-School Suspension tenure area’ and that she was being terminated based upon her seniority status within that tenure area”

However, "In-School Suspension" was not an authorized special subject tenure area.

The teacher sued the school district contending that her separation was unlawful and that she should be reinstated to a position teaching in the physical education and recreation tenure area, an area in which she held a teaching certificate. 

Supreme Court granted the School Board's motion for summary judgment in part, dismissing the petition but as the teacher had been appointed by the Board to a nonexistent tenure area, Supreme Court then remitted the matter to the Board and directed it to reclassify the teacher "into an existing tenure area position.”

Both the teacher and the School Board appealed the decision.

Affirming the Supreme Court’s ruling, the Appellate Division said that the parties conceded that the teacher did not "devote a substantial portion of [her] time to instruction in . . . physical education" and therefore she cannot be deemed to have served in that special subject tenure area unless she falls within the exception created by 8 NYCRR 30-1.2 (b) (2).

8 NYCRR 30-1.2 (b) (2) provides that a professional educator who was appointed to an unauthorized tenure area prior to May 1, 2009 will be deemed to have been appointed to the tenure area for which the teacher holds a certification if the teacher was appointed for the performance of duties in instructional support services. However, the teacher’s duties, as self-described and as described in her teacher evaluations and by her principal, centered exclusively upon supervising students assigned to in-school suspension and working with other staff members concerning those students.

Thus, concluded the Appellate Division, the Board was correct in holding that the duties performed by the educator did not qualify as "instructional support services" within the meaning of the regulation and she was not legally entitled to an appointment to a position in the physical education and recreation tenure area.

However, said the court, it agreed with Supreme Court that, under the circumstances of this case, remittal is required so that the Board can reclassify the teacher into an accepted tenure area and thereafter determine seniority pursuant to Education Law §2510(2).

The decision is posted on the Internet at:

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
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January 07, 2013

Employees “demoted” to a lower grade position as a result of their exercise of their “displacement rights” in a layoff situation are not entitled to a “pre-demotion” hearing


Employees “demoted” to a lower grade position as a result of their exercise of their “displacement   rights” in a layoff situation are not entitled to a “pre-demotion” hearing
Yackel v City of Rochester, 2012 NY Slip Op 09253, Appellate Division, Fourth Department

The Rochester Firefighters Association file an Article 78 petition challenging an administrative order issued by the Fire Chief of the City of Rochester Fire Department that resulted in the "demotion" of a number of Fire Department battalion chiefs to the rank of captain.

These demotions were the “fall-out” resulting from the abolition of battalion chief positions* as part of budget cuts made by the City of Rochester and the decision of the individual battalion chiefs to exercise their "displacement rights" pursuant to Civil Service Law §80.6.

The Appellate Division said that Supreme Court “properly granted [the City’s] motion to dismiss the Association’s petition, rejecting the Association’s argument that the Fire Chief acted in excess of his authority as the appointing authority for City of Rochester Fire Department when he issued the challenged administrative order.

The court explained that although §8B-4 of the City Charter provided that that "members of the Fire Department . . . hold their respective offices during good behavior or until by age or disease they become personally incapacitated to discharge their duties" did not truncate the "undisputed management prerogative of the [City], as an employer, to abolish positions in the competitive class civil service in the interest of economy."**

The Appellate Division also affirmed Supreme Court’s rejection of the Association’s contention that, as a matter of procedural due process, the individual Battalion Chiefs that exercised their “displacement rights” to an appointment is a lower grade position were entitled to a hearing prior to their "demotions" commenting that the Chief’s action was not based upon any question involving the conduct or the competency of the Battalion Chiefs involved but, rather, was based on their seniority and the mandates of Civil Service Law §§80 and 81.
 
* There must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 or 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

** CSL §80 controls with respect to the rights of employees in the competitive class in the event of a layoff; §80-a controls with respect to employees in State service in positions in the non-competitive class. See §45 of the Civil Service Law with respect to determining seniority for the purposes of a layoff involving employees continued in public service following a “take-over” of a private institution or enterprise by a government entity.

The decision is posted on the Internet at:

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
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Selected reports and information posted by New York State's Comptroller Thomas P. DiNapoli


Selected reports and information posted by New York State's Comptroller Thomas P. DiNapoli
Issued during the week of December 31, 2012 – January 6, 2013 [Click on the caption to access the full report]


DiNapoli Seeks Disclosure Of Political Spending At Qualcomm

New York State Comptroller Thomas P. DiNapoli announced Thursday that the New York State Common Retirement Fund has filed suitin a Delaware court against Qualcomm Inc. for the right to inspect the company’s books and records to determine how shareholder funds are being spent for political purposes.


DiNapoli: Local Governments Continue to Face Significant Fiscal Challenges

Many local governments have nearly exhausted their resources in an effort to avoid severe fiscal stress, according to an annual reportreleased last week by State Comptroller Thomas P. DiNapoli.


DiNapoli: Snowmobile Association Treasurer Misdirected Grooming Funds

The Herkimer County Snowmobile Association Treasurer falsified documentation and improperly used his dual authority as the association’s treasurer and president of a trail maintenance entity to redirect funds from one snowmobile club to his own, according to an audit. released Wednesday by State Comptroller Thomas P. DiNapoli. The findings were referred to the Herkimer County District Attorney’s Office.


Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli last week announced his office completed the audits of:




January 04, 2013

An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged


An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged
White v County of Sullivan, 2012 NY Slip Op 09131, Appellate Division, Third Department

Supreme Court granted Earl White’s CPLR Article 78 to partially vacate Sullivan County’s determination denying White benefits pursuant to General Municipal Law §207-c.

White, a correction officer with the Sullivan County Sheriffs’ Department, was injured in the performance of his duties and filed for, and received, disability benefits pursuant to General Municipal Law §207-c. White’s physician subsequently cleared him to return to work in a light duty capacity, and White began working full time as a control room officer.

Some time later White again suffered an injured in the course of his employment and again filed for benefits pursuant to General Municipal Law §207-c. White’s superior at the Sheriff's Department approached him with a disability retirement application, but White refused to sign it or related medical releases.*

The County denied White's application for General Municipal Law §207-c benefits due to a lack of medical evidence. In response to White’s petition challenging the County’s decision, Supreme Court, concluding that the county's determination was arbitrary and capricious, remanded the matter and directed the County to hold a hearing.

The Hearing Officer determined, among other things, that White had established his eligibility to receive §207-c benefits beginning at the time of his injury but that he was able to resume light duty work. The Hearing Officer also found that White's eligibility for benefits ended effective July 24, 2009 due to his refusal to cooperate with County's attempts to file retirement paperwork on his behalf.**The County adopted the Hearing Officer's determination.

The Sheriff, however, preferred charges of misconduct against White pursuant to Civil Service Law §75, alleging that his refusal to sign retirement forms constituted misconduct. The disciplinary hearing officer found White guilty and the Sheriff adopted the hearing officer’s findings, imposing the penalty of termination from his position effective in January 2011.

White then initiated this action, challenging [1] the determination one denying him benefits pursuant to General Municipal Law §207-c and [2] the Sheriff’s decision finding him guilty of misconduct and terminating his employment. Supreme Court partially granted White’s petition, vacating the County’s determination that White was ineligible for benefits after July 2009 and vacated Sheriff’s decision terminating White from his position.***

As to that part of White’s appeal concerning the County’s termination of his §207-c benefits, the Appellate Division noted that Sullivan County Local Law No. 1 (1989) vested in the County’s “insurance administrator the exclusive authority’ to make determinations of eligibility for General Municipal Law §207-c benefits for Sheriff's Department staff.

Noting that both State Law and Sullivan County Local Law provided that the payment of §207-c salary benefits "shall be discontinued" for any officer "who is permanently disabled" as a result of the injury occurring in the performance of his or her duties if that officer is granted a disability retirement and in the event such an officer does not apply for a disability retirement, “the head of the police force may apply on behalf of the officer,” citing General Municipal Law § 207-c [2] and the relevant collective bargaining agreement with White's union, governing its procedure for compliance with General Municipal Law §207-c” pursuant to Local Law No. 1.

Local Law No. 1, provides that in the event the County’s insurance administrator determines that an officer is permanently disabled, the administrator "shall" notify [the County's] personnel officer, who then "shall request that the [officer] make application for" a disability retirement (Local Law No. 1 § 210). "If application for such retirement is not made by the [officer], application therefor[] may be made by the Sheriff or [p]ersonnel [o]fficer," again citing Local Law No. 1.

The court then explained that initially the County’s denied White benefits based on a lack of medical proof, without mentioning petitioner's refusal to sign retirement documents.

The Hearing Officer found that medical proof did exist, rejecting the basis relied upon by the County for its denial of benefits. Noting that the county “is not now challenging that finding,” said that the County “should not be permitted to create or rely upon different reasons for the denial that were not raised and stated at the time of that denial” and  "judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination."

Further, said the court, even were County permitted to rely on White's refusal to sign retirement documents despite not having included that reason in its denial letter, the County concedes that its personnel officer never requested White to apply for disability retirement. Accordingly, the Appellate Division granted that portion of White’s petition seeking the annulment of the County’s determination finding White ineligible for General Municipal Law §207-c benefits as of July 2009.

The Appellate Division then observed that White was entitled to §207-c benefits beginning at the time of his injury in June 2009 but that “No end period for those benefits has been established, as that may depend on the outcome of the remittal regarding the Sheriff's termination of [White’s] employment.”

* See  GML §207-c.2.

** The County contended that Retirement and Social Security Law §605 provides an alternate basis upon which it could apply for retirement benefits on White's behalf, but it did not make an application pursuant to that section. See, also, GML §207-c.2.

*** The Appellate Division, noting that the Sheriff was not named as a respondent in the action before Supreme Count with respect to White’s dismissal from his position, said that the Sheriff was a necessary party and “join the Sheriff as a respondent” in the action. The Sheriff, however, was not a necessary party with respect to that portion of White’s action challenging the County’s discontinuing his §207-c benefits.

The decision is posted on the Internet at:

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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January 03, 2013

Decisions of the US Department of Labor Administrative Review Board - October, November and December 2012


Decisions of the US Department of Labor Administrative Review Board - October, November and December 2012
Source: USDOL/OALJ Reporter

The United States Department of Labor, Office of Administrative Law Judges website has been updated with the following:

Case summaries and case links for December 2012

Case summaries and case links for November 2012

Case summaries and case links for October 2012


Code of Silence Litigation - Police Officer's use of force


Code of Silence Litigation - Police Officer's use of force
Source: AELE*

AELE reports that "In November, 2012, a federal jury in Chicago returned a verdict in favor of a plaintiff and against the city on a claim that the city had a persistent widespread custom or practice of protecting officers from citizen complaints. The article reveals how the plaintiff and two expert witnesses proved her allegations. At the end, there is an extensive list of references."

The article is posted on the Internet at http://www.aele.org/law/2013-01MLJ101.html

* AELE has a free search tool covering our database of more than 33,000 case summaries at http://www.aele.org/htdig/common/search.html

An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State Education Department


An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State Education Department
Decisions of the Commissioner of Education, Decision #16,440

In this appeal the issue concerned an applicant's challenge to a decision by the New York State Education Department Office of Teaching Initiatives that the applicant for a permanent teaching certificate was not eligible for such a certificate.

Dismissing the appeal on the grounds that the Commissioner of Education does not have jurisdiction to consider such an appeal, the Commissioner explained that “it is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department.

However, said the Commissioner, such a challenge may be advanced in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules. 

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume52/d16440.html

Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB


Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB
City of New York v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 09130, Appellate Division, Third Department

The State’s Public Employment Relations Board found that the Board of Education of the City School District of the City of New York [Board] committed an improper employer practice in response to a complaint filed by the union representing certain employees employed by the Board. The union had alleged that the Board unilaterally changed a condition of employment by eliminating the automatic granting of parking permits after the City adopted a new plan aimed at reducing traffic congestion in the City. 

The City of New York filed a petition in Supreme Court seeking an annulment of PERB's decision. PERB counterclaimed seeking enforcement of its remedial order. Supreme Court dismissed the City’s petition and granted PERB's counterclaim.

Addressing a “procedural issue,” the Appellate Division, noting that PERB's order did not make any findings against the City nor did it order the City to do anything, ruled that the City did not have standing to commence a proceeding seeking to annul PERB's decision. Thus, said the court, Supreme Court properly dismissed that the petition brought by the City, explaining that the City and the Board are separate legal entities.

Further, said the court, the City was not a party to the PERB proceeding and although it was argued that “the City could have intervened,” the court noted that PERB’s regulations only permit intervention by public employees, a union acting on their behalf or the public employer, citing 4 NYCRR 212.1 [a]. In this instance, said the court, the relevant employer was the Board and not the City of New York.

As to PERB’s ruling concerning the merits of the alleged improper practice charge filed against the Board, the Appellate Division considered Board’s argument that it had no control over changes with respect to parking that was imposed upon it by the City and therefore had no power to negotiate anything regarding this parking permit situation.

Conceding that the power to regulate traffic and parking on city streets is expressly delegated to the City, the Appellate Division said that the relevant questions for it to address were [1] did the Board had any control over the change in producing and distributing parking permits and [2] did PERB intruded on an area under the authority of the City or its Department of Transportation [DOT].

The Appellate Division’s answer: it agreed with PERB that the Board did have control over some aspects of the new parking permit situation as DOT produced and provided to Board 10,007 site-specific placards and 1,000 three-hour permits for on-street parking and did not have any oversight responsibilities as to the distribution of such placards and permits.

The decision is posted on the Internet at:

January 02, 2013

Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely


Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely
Feuer v State of New York, 2012 NY Slip Op 09129, Appellate Division, Third Department

Prior to retiring in June 2009, a teacher, a Tier 4 member of the New York State Teachers' Retirement System [TRS], met her financial advisor and a TRS representative for a preretirement consultation. The teacher then submitted her application for retirement, selecting the option entitled "Largest Lump Sum," which provided the "largest possible lump sum payment to a beneficiary" following the member's death (emphasis in the decision), and designated her niece and nephew as her beneficiaries.

The retirement application the teacher completed also detailed another option available to a retiree entitled the "Maximum" option. It described this option as follows: "MAXIMUM — Do notdesignate a beneficiary if you select this option. This election will provide you with the largest possible annual benefit. All payments will cease at your death."

In addition, the application stated that, in the event an applicant wished to change options, notice of such a change had to be received by the Retirement System "within 30 days after [the] effective date of retirement" —  in this retiree's case, no later than July 30, 2009.

After submitting her application, the retiree received a letter from the Retirement System dated March 23, 2010, summarizing her retirement benefits and established her monthly pension payment. More then 30 days after the effective date of her retirement, however, the now retired teacher notified the Retirement System that she wanted to change her retirement option selection from "the Largest Lump Sum" option to the "Maximum" option.

The Retirement System denied her request and the retiree filed a petition with the Court of Claims seeking permission to file a late notice of claim.*

The Court of Claims denied her request because the retiree, by her own admission, did not notify the Retirement System that she wanted to change her retirement option within 30 days of the effective date of her retirement. The Appellate Division affirmed the Court of Claims’ ruling, explaining that the Court of Claims is a court of limited jurisdiction that has no capacity "to grant strictly equitable relief, [although it] may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases."

Although the relief that the retiree seeks is couched in money damages,** the Appellate Division characterized her application as requiring  the review of an administrative agency's determination. In that regard, the Appellate Division noted that the money damages that the retiree sought were calculated by using as a base figure what she would have received as her pension benefit had she initially selected the "Maximum" option.

The bottom line: The Appellate Division ruled that as the retiree, in essence sought judicial review and reversal of an administrative determination made by the Retirement System, the Court of Claims lacked subject matter jurisdiction and it properly denied the retiree's motion for leave to file a late notice of claim.

* The retiree also sued TRS’ representative in Supreme Court, contending that the representative was negligent regarding the her retirement options. Supreme Court dismissed this action as it sought money damages from a state employee in connection with the performance of her duties and, as such, could only be commenced in the Court of Claims.

** The Appellate Division said that the relief that the retiree sought would result in her receiving “windfall, because not only would she receive the monthly pension benefit under the Maximum option, but she still would have a lump sum available to her beneficiaries upon her demise.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09129.htm

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