Teachers who retired while an expired CBA continued in force under the Triboro Doctrine contend that the expired CBA controls with respect to their health insurance benefits

Teachers who retired while an expired CBA continued in force under the Triboro Doctrine contend that the expired CBA controls with respect to their health insurance benefits

Evans v Deposit Cent. Sch. Dist., 2016 NY Slip Op 03578, Appellate Division, Third Department

The petitioners in this CPLR §3001 action are former Deposit Central School District schoolteachers [Retired Teachers] who retired from their employments with the School District at a time when, pursuant to Civil Service Law §209-a(1)(e), which codified the so-called Triboro Doctrine, the terms of an expired Collective Bargaining Agreement [CBA] remained in effect pending the negotiation of a successor CBA.

In November 2013, the District notified the Retired Teachers that a new CBA had been negotiated and ratified and that, under the terms of that contract, the District's contribution toward the cost of the Retired Teachers' health care premiums had been reduced.

The Retired Teachers sought a declaratory judgment that they "are lawfully entitled to receive the same health benefits as all other teachers who retired during the effective term of the [prior CBA]" and reimbursement of the premiums that they paid "under protest" pursuant to the terms of the new CBA. Rather than submitting an answering, the School District moved to dismiss the complaint, asserting that [1] Supreme Court lacked jurisdiction over the matter, [2] the Retired Teachers failed to state a cause of action and [3] the claim was untimely. Supreme Court granted School District's motion and the Retired Teachers appeal.

The Appellate Division reversed the Supreme Court's ruling, explaining that the Retired Teachers’ claim does not fall within the exclusive jurisdiction of the Public Employment Relations Board [PERB] as Civil Service Law §205(5)(d) [the Taylor Law] provides that PERB lacks the "authority to enforce an agreement between an employer and an employee organization and shall not exercise jurisdiction over an alleged violation of such an agreement that would not otherwise constitute an improper employer . . . practice."

Further, said the court "PERB . . . has consistently interpreted that provision to deprive it of jurisdiction ... when the underlying disputes are essentially contractual, favoring that the parties instead resort to the courts to resolve such disputes."

As framed by the Appellate Division, the Retired Teachers “raise, in essence, a contractual dispute as to whether they are entitled to the contribution amount [for health insurance] set by the prior CBA because, although expired, that was the contract that was in effect at the time of their respective retirements” and do not allege that School District committed any act or omission that would constitute a violation of the Taylor Law.  

The parties do not dispute that the provision of health care benefits is a matter plainly addressed in both contracts. Significantly, said the Appellate Division, as the petitioners are now retireed, the School District does not have a statutory duty to bargain with them within the meaning of the Taylor Law, citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326. Thus the Retired Teachers’ claim is contractual in nature and Supreme Court erred in dismissing the complaint for want of subject matter jurisdiction.

Considering the School District’s alternative claim that the Retired Teachers failed to state a cause of action, the Appellate Division said “On a motion to dismiss for failure to state a cause of action, the trial court must construe the complaint liberally, accept the facts alleged in the complaint as true, afford the plaintiffs the benefit of all favorable inferences and determine whether the facts alleged support any legally cognizable theory,” Applying this standard, the Appellate Division concludes that, by alleging that the School District failed to honor a contractual obligation under the prior CBA, the Retired Teachers have stated a legally cognizable claim for breach of contract.

The Appellate Division also held that the Retired Teachers’ claim was timely. Noting that the proper vehicle for seeking damages arising from an alleged breach of contract by a public official or governmental body is an action for breach of contract, not a proceeding pursuant to CPLR Article 78, the court opined that the Retired Teachers’ claim “falls safely within the six-year statute of limitations applicable to breach of contract claims, as [the Retired Teachers] commenced this action less than a year after learning of the ratification of the new CBA and paying their premiums under protest."

Ruling that the grounds raised by School District in its motion to dismiss are “without merit” and Supreme Court erred in dismissing the complaint, the Appellate Division reversed Supreme Court’s order and remitted the matter to the Supreme Court to permit the School District to serve an answer within 20 days of the date of this Court's decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03578.htm

An appointing authority’s neglecting to make a timely designation of an individual to serve in lieu of the appointing authority in a §75 disciplinary action is a fatal omission

An appointing authority’s failing to make a timely designation of an individual to serve in lieu of the appointing authority in a §75 disciplinary action is a fatal omission

Bruso v County of Clinton, 2016 NY Slip Op 03576, Appellate Division, Third Department [Bruso I]

Bruso v Clinton County, 2016 NY Slip Op 03577, Appellate Division, Third Department [Bruso II]

Bruso I

Zetra Bruso was employed by the County of Clinton as the head nurse of the Clinton County Nursing Home. In November 2012, Wendie Bishop, the administrator of the nursing home and its appointing authority, placed Bruso on administrative leave pending an investigation into “possible performance issues.” In December 2012, Bishop filed 12 disciplinary charges against Bruso pursuant to §75 of the Civil Service Law alleging 28 specific acts of misconduct and incompetence.

The Hearing Officer found that substantial evidence supported a majority of the charges and specifications and recommended that Bruso's be terminated from her position. The Clinton County Administrator, Michael E. Zurlo, who had been designated by Bishop to serve in her place upon her disqualifying herself from making the final determination in this disciplinary action, adopted the Hearing Officer's findings and recommendation and terminated Bruso.

Bruso filed an Article 78 petition seeking a court order annulling Zurlo's determination, contending that [1] the Hearing Officer erred in refusing to admit certain evidence at the hearing and [2] Zurlo was not properly designated to serve in the place of the appointing authority.

Addressing Bruso’s claim that erred in refusing to admit into evidence the Civil Service Commission's Manual of Procedure in Disciplinary Actions, the Appellate Division ruled that the Hearing Officer, properly excluded the Commission’s Manual. The court explained that generally “all relevant material and reliable evidence which will contribute to an informed result should be admissible in disciplinary proceedings," here the Hearing Officer had properly excluded the Manual as it “merely acts as a guideline [and] was not relevant to the determination of whether [Bruso] was guilty of the alleged misconduct.”

With respect to the “appointing authority” issue, the Appellate Division noted that Bishop was the  appointing authority and vested with the power to remove Bruso from her employment. As Bishop had filed the charges against Bruso, had appointed the Hearing Officer and had testified at length at the hearing, she was “personally [and] extensively involved in the disciplinary process.” Accordingly, said the court, Bishop had “properly disqualified herself from reviewing the record and the recommendation of the Hearing Officer and rendering a determination on the charges.”

Bishop had designated Zurlo, a person with supervisory authority over Bruso, to act in her place. However, although Zurlo stated in his July 15, 2013 determination terminating Bruso's employment that Bishop had delegated her authority to him, Bishop and Zurlo affirmatively stated in their respective affidavits that the designation had occurred on July 22, 2013, seven days after Zurlo made the determination.

Accordingly, said the Appellate Division, the record did not support the conclusion that Bishop had vested Zurlo with the power to remove Bruso from her employment at the time of he had made his determination.

The court remitted the matter “for a de novo review of the record and the Hearing Officer's recommendation by ‘the officer or body having the power to remove’ [Bruso] from her employment or, if such officer or body is disqualified, a qualified individual to be designated by such officer or body.” However, said the Appellate Division, as Zurlo has already reviewed the record and the findings and recommendation of the Hearing Officer in Bruso I, “we conclude that it would not be appropriate for him to conduct the required de novo review upon remittal” of Bruso I.

In addition, the Appellate Division said although Bruso was entitled to back pay and benefits, “in a decision decided herewith, [Bruso v Clinton County, Bruso II] we have confirmed a July 22, 2013 determination finding [Bruso] guilty of an additional charge brought pursuant to Civil Service Law §75 … and terminating her employment based on that finding …. Under these circumstances, petitioner is entitled to back pay and benefits only for the period from July 15, 2013 through July 21, 2013.”

Bruso II

The genesis of the disciplinary action initiated against Bruso is set out in Bruso I above. At a hearing on those charges, Bruso attempted to admit into evidence a "Medication and Treatment Misadventures Form" [the Form], an internal quality assurance document used by the nursing home to identify and address errors in medicating its residents, as well as a resident's narcotics prescription that was attached to the form. This resulted in the appointing authority, the administrator of the nursing home, filing two additional charges against Bruso in April 2013 alleging three specifications of alleged misconduct and incompetence. In the words of the Appellate Division, “[a]s relevant here, [Bruso] was alleged to have knowingly possessed [a] form and the attached prescription without authorization from the nursing home."

Following a hearing on the April 2013 these charges, a Hearing Officer found that all three specifications were supported by substantial evidence and recommended the  termination of Bruso's employment. Zurlo, who had been designated by the appointing authority to serve in her stead, accepted the Hearing Officer's findings and recommendation and concluded that termination of Bruso’s employment was the appropriate penalty.

Bruso then initiated a second CPLR Article 78 action seeking, among other things, to annul Zurlo's determination concerning the April 2013 charges. Supreme Court dismissed two of the specifications as untimely under Civil Service Law §75(4) and transferred the proceeding to the Appellate Division.

Bruso contended that the determination should be annulled because the Hearing Officer was biased. The Appellate Division rejected her argument. The court said that “… hearing officers are presumed to be free from bias, an appearance of impropriety is insufficient to set aside an administrative determination; [the] petitioner must provide factual support for his [or her] claim of bias and prove that the outcome flowed from that bias." Conceding that the Hearing Officer presided over the hearing on the December 2012 charges, the court said that Bruso failed to overcome the presumption and establish that the Hearing Officer prejudged the matter. (see Matter of Compasso v Sheriff of Sullivan County, 29 AD3d at 1065).

As to Zurlo’s participation in Bruso II,* the court said that it was satisfied that Zurlo's determination was independent and fully informed. The Appellate Division explained that “[i]n evaluating whether an administrative determination is informed, courts accord the determination a presumption of regularity and will not disturb it absent ‘a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion.’”

In addition, the court noted the record shows that the hearing transcript and exhibits were made available to Zurlo and that he reviewed the posthearing briefs submitted by the parties, as well as the findings, conclusions and recommendation of the Hearing Officer. Addressing Bruso’s assertion that Zurlo did not read the enter record, the Appellate Division, citing Perryman v Village of Saranac Lake, 64 AD3d 830, said the he was not required to read the entirety of the hearing transcript.

Finding that Zurlo's determination that Bruso was guilty of the remaining specification was supported by substantial evidence, the court said that it “will not second guess the credibility determinations of the administrative factfinder.”

Citing the Pell doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222, the court said that it did not find that termination of Bruso’s employment is so disproportionate to the offense as to be shocking to one's sense of fairness.

* Although in Bruso I the Appellate Division concluded that at the time of his determination of the December 2012 charges Zurlo was not authorized to review the record and the Hearing Officer's recommendation and render a determination on those charges, the court said that “the same concern is not present here, [i.e., in Bruso II] as Zurlo was vested with the power to review the present record and render a determination on the April 2013 charges at the time that he did so.”

The Bruso I decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03576.htm

The Bruso II decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03577.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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Determining if an employer-employee relationship exists for the purposes of unemployment insurance

Determining if an employer-employee relationship exists for the purposes of unemployment insurance

Ritch (Island Tutoring Ctr., Inc.--Commissioner of Labor), 2016 NY Slip Op 03569, Appellate Division, Third Department

Greene (Syracuse Socy. for New Music, Inc.--Commissioner of Labor), 2016 NY Slip Op 03567, Appellate Division, Third Department

The question of whether an employer-employee relationship exists is a factual question to be resolved by Unemployment Insurance Appeal Board and courts will not disturb its determination when it is supported by substantial evidence in the record. As the Court of Appeals held in Empire State Towing and Recovery Assn. [Commissioner of Labor], 15 NY3d 433, "An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results," with the latter the more important element of the test.

The IslandTutoring Center, Inc. Decision

ITC was in the business of providing general and special education tutoring services to school districts, private schools and private clients and retained private tutors to provide these services.

Kathleen Ritch and Alissa Bianco provided educational tutoring services to ITC's clients. When their employment with ITC ended, they filed applications for unemployment insurance benefits. Initially the Labor Department determined that both Ritch and Bianco [Claimants] were employees of ITC and that ITC was liable for unemployment insurance contributions based on remuneration paid to Claimants and other similarly situated tutors working for ITC. ITC objected, contending that Claimants and the other tutors were independent contractors. Following an administrative hearing, an Administrative Law Judge sustained ITC's objection and overruled the Department's determinations.

Ultimately the Unemployment Insurance Appeal Board reversed the determinations of the Administrative Law Judge and sustained the Department's initial decision that Claimants were employees and not independent contractors. ITC appealed but the Appellate Division affirmed the Board’s determination.

The court explained that it had previously held that an organization which screens the qualifications of professionals, pays them at a set rate and then offers their services to clients "exercises sufficient control to create an employment relationship."

In this instance, said the court, the record establishes that ITC advertises for tutors to provide tutoring services to its clients, interviews and screens a prospective tutor's résumé and his or her list of references. If employed, the tutor would typically sign a contract indicating that, among other things, the tutor was an independent contractor. When a client contacted ITC to request tutoring services, it would select a tutor from its database and inform that tutor of the area of study or subject to be instructed and the number of tutoring hours required. Although tutors were free to decline assignments, ITC did not permit tutors to provide their own substitutes after accepting an assignment.

Further, ITC required tutors to fill out time sheets and its session report forms in order to receive payment. As to payment, ITC paid its tutors prior to receiving payment from its clients, reimbursed tutors for certain expenses and loaned tutors teaching materials from its library when necessary. ITC also handled its clients' complaints and feedback concerning the performance of its tutors and could remove tutors from assignments if there was a negative complaint.

The Appellate Division held that this constituted substantial evidence supporting the Board's determination that an employer-employee relationship existed and that ITC was liable for contributions on remuneration paid Claimants and to all others determined to be similarly situated to Claimants.

The Syracuse Society for New Music, Inc. Decision

From 1980 to 2011, Linda M. Greene performed as a professional flautist at various new classical music concerts produced by the Syracuse Society for New Music, Inc. [SNM].

In 2012 Greene filed an application for unemployment insurance benefits. The Department of Labor determined that she was an employee — and not an independent contractor — entitled to benefits and that SNM was liable for additional contributions on remuneration paid to Greene and others similarly employed. Following a hearing, an Administrative Law Judge sustained those determinations and, upon administrative appeal, the Unemployment Insurance Appeal Board affirmed. SNM appealed.

The Appellate Division disagreed and reversed the Board’s decision. The court said the record indicated that Greene “was retained only occasionally and sporadically by SNM to perform classical music with an orchestra at various venues; … was paid at a set rate for each concert; was not required to sign a written contract; was permitted to accept or reject any assignments offered; maintained other employment while performing for SNM; and suffered no restrictions of any sort whatsoever upon her ability to perform for other organizations.

Greene testified that she had never missed a performance, but if she had hypothetically needed to be absent, it would be her ethical responsibility to attempt to obtain her own replacement. The treasurer of SNM testified that, assuming circumstances prevented Greene from attending a performance, "it would be a collaboration" to obtain a substitute, although SNM would not generally ask a musician to provide his or her own substitute.

SNM did not provide Greene with equipment nor was she not required to wear a uniform or dress in any particular manner and although the greater portion of the necessary practice for the performances was performed wholly at Greene's discretion, there were necessarily scheduled rehearsals and defined performance dates.

The requirements that Greene rehearse and perform specific pieces of music on set dates at set venues did not, in the court’s view, demonstrate meaningful control but that these requirements were, instead, inescapably inherent in the underlying function, as a concert performance necessarily demands a high level of coordination.

Explaining that a requirement that work be properly performed does not constitute an exercise of control and, in this instance, any alleged control exercised over Greene was necessary to ensure that the work for which she had been retained was carried out properly.

Accordingly, the Appellate Division, Judge Rose dissenting, held that the record lacks substantial evidence demonstrating that SNM exercised overall control over important aspects of Greene's work such as to place her within the ambit of an employer-employee relationship with SNM.

The ITC decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03569.htm

The SNM decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03567.htm

NOTE: Readers may be interested in participating in a free Internal Revenue Service Webcast Worker Classification: Employee or Independent Contractor? scheduled to be held on Thursday, May 12, 2016. For additional information and the link to register for the Webcast, go to:

http://publicpersonnellaw.blogspot.com/2016/05/worker-classification-employee-or.html

 

An Article 78 challenge to a school board's tenure determination must be initiated within four months of the determination becoming “final and binding” upon the aggrieved party

An Article 78 challenge to a school board's tenure determination must be initiated within four months of the determination becoming “final and binding” upon the aggrieved party

Garofano v Board of Educ. of Ramapo Cent. Sch. Dist., 2016 NY Slip Op 03506, Appellate Division, Second Department

The Ramapo Central School District appointed Paul D. Garofano as a foreign language teacher effective September 1, 2004. Garofano’s appointment was subject to his satisfactorily completing a three-year probationary period. However, throughout his employment with the district, Garofano’s "job title" was Instructional Technology Facilitator and he was granted tenure in the tenure area of "Instructional Technology" effective September 1, 2007.

"Instructional Technology," however, is a “nonexistent tenure area” under the Rules of the Board of Regents.*

On January 31, 2013, Garofano was informed that the Board of Education had become aware that it had appointed him to a "nonexistent tenure area" and, during a special meeting held on January 30, 2013, the Board had adopted a resolution changing his tenure area to the tenure area of School Media Specialist (Educational Communications), retroactive to September 1, 2007.

In adopting the resolution the Board noted that its basis for assigning Garofano to the School Media Specialist (Educational Communications) tenure area was because had a valid Educational Technology Specialist Initial Certificate from the New York State Education Department at the time he was granted tenure in the “nonexistent tenure area.” In addition, the Board's resolution noted that Garofano did not consent to his retroactive assignment to the School Media Specialist (Educational Communications) tenure area and contended that he should be assigned to the Elementary Education tenure area instead.

Four months later the Board voted to abolish a number of positions, including at least one position in the School Media Specialist (Educational Communications) tenure area. As Garofano was the least senior teacher of that tenure area, his employment was terminated, effective June 30, 2013.**

About September 19, 2013, Garofano filed an Article 78 petition challenging [1] the Board’s January 30, 2013, determination reassigning him to the tenure area of School Media Specialist (Educational Communications) rather than Elementary Education and [2] his subsequent termination. 

Supreme Court dismissed Garofano’s petition as time-barred, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that a CPLR Article 78 review must be filed within four months of the date when the administrative determination to be reviewed became final and binding upon the aggrieved party and a determination becomes "final and binding" when two requirements are met: [1] the completeness (finality) of the determination, and [2] the exhaustion of administrative remedies. 

In the works of the court, Garofano did not commence this proceeding until September 19, 2013, nearly eight months after the Board adopted its January 30, 2013 resolution reassigning him to the tenure area of School Media Specialist (Educational Communications).

Notwithstanding Garofano argument to the contrary, the Appellate Division ruled that the Board’s action in reassigning Garofano to the tenure area of School Media Specialist (Educational Communications) did not become "effective" at a later date, nor did the [Garofano] first become aggrieved by the action upon his termination on June 30, 2013. The court said that the Board's action was complete and became effective immediately, on January 30, 2013.

Accordingly, the Supreme Court properly determined that the proceeding was barred by the statute of limitations.

* 8 NYCRR 30-1.8(b) provides for tenure areas of: (4) school media specialist; (5) school media specialist (library); and (6) school media specialist (educational communications)

** Presumably Garofano’s name was placed on the preferred list for School Media Specialist (Educational Communications) created as the result of the layoff.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03506.htm
[Motion for leave to appeal denied]

____________________

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

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Worker Classification: Employee or Independent Contractor?

Worker Classification: Employee or Independent Contractor?

An Internal Revenue Service Webcast

This Webcast will be online on Thursday, May 12, 2016 at 2 p.m.(Eastern)

The link to register for this Free Webcast is at:

https://www.webcaster4.com/Webcast/Page/925/14635

This same link will be used to log on to the Webcast on May 12, 2016.

Learn about:

Why this matters

Recognize Control Factors

Benefits of Voluntary Compliance

How the Form SS-8 can help

Resources:

Government Workers: Employees or Independent Contractors?
Overview of the issue at https://www.irs.gov/Government-Entities/Federal,-State-&-Local-Governments/Government-Workers-Employees-or-Independent-Contractors

Independent Contractor - Self-Employed or Employee? 

Details regarding the issue at https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority
Gomez v Kelly, 2016 NY Slip Op 03582, Appellate Division, First Department [Gomez II]

Manuel Gomez, a New York City Police Officer, was found guilty of disciplinary charges that alleged he brandished his gun during the course of a violent off-duty domestic dispute, pointed the firearm at the civilians who were attempting to assist the victim, failed to comply with the responding police officers' instructions, and resisted being handcuffed. The penalty imposed by the New York City Commissioner of Police in Gomez II: termination of Gomez’s employment as a police officer.

Gomez appealed but the Appellate Division dismissed his petition explaining that the finding that he was guilty of the disciplinary charges in Gomez II was supported by substantial evidence, including testimony of civilian witnesses and police officers.  The court said that “[t]here exists no basis to disturb the credibility determinations of the Hearing Officer” and sustained the penalty imposed by the Commissioner, dismissal from the New York City Police Department.

In an effort to “mitigate” the penalty imposed, dismissal, Gomez argued that termination was excessive in light of his excellent service record in the department and in the military. The Appellate Divisions said that this argument was unavailing in light of his disciplinary history, citing Gomez v Kelly, 55 AD3d 305, reversed 12 NY3d 883 [Gomez I].

In Gomez I the Appellate Division said that substantial evidence supported the findings that Gomez violated [1] his commanding officer's order to terminate his involvement in a criminal investigation; [2] failed to take possession of drugs during a police department integrity test; [3] failed to voucher his helmet, mace and shield before leaving for active military duty; [4] retrieved his service handgun before the official date of his discharge from active military duty; and [5] failed to report a domestic incident to the department. The court also noted that “[t]here is no basis to disturb the hearing officer's rejection of [Gomez’s] explanations for these actions.”

The Appellate Division, however, held that the penalty imposed by the Commissioner, a one-year “dismissal probation” and a 30-day forfeiture of annual leave credits, was “excessive in light of the mitigating circumstances, i.e., [Gomez’s] several tours of active military duty, including a year in Afghanistan for which he was decorated, and the substantial pay lost in connection with his military service.”

The Commissioner appealed and the Court of Appeals reversed the Appellate Division’s ruling, explaining that it could not conclude that “the penalty . . . imposed by the Commissioner shocks the judicial conscience.”

The decision in Gomez I is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_07181.htm

The decision in Gomez II is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_03582.htm

 _____________________ 

 A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Selected reports issued by the Office of the State Comptroller during the week ending May 7, 2016

Selected reports issued by the Office of the State Comptroller during the week ending May 7, 2016

Click on text highlighted in color to access the entire report

State Budget increases education aid and enacts paid family leave
The recently enacted fiscal year 2016-17 state budget includes a $1.4 billion increase in school aid, as well as increases to the minimum wage and phased-in personal income tax cuts for most taxpayers, but adds to state debt and shifts significant spending off-budget and to authorities, according to a reportreleased by State Comptroller Thomas P. DiNapoli. The report also notes the budget sacrificed public transparency both in process and content.

Remaining defendants in a multi-million dollar bid-rigging of Monroe County public contracts sentenced
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of the remaining three defendants in an elaborate bid-rigging conspiracy that illegally steered multi-million dollar public works contracts for Monroe County to favored and connected companies, resulting in the restraint of competition. The defendants profited from this scheme and defrauded the taxpayers of Monroe County. The report is posted on the Internet at:
http://osc.state.ny.us/press/releases/may16/050616a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20160508&utm_campaign=fiscal+oversight

State audits released:

City University of New York - Controls Over Bank Accounts - Lehman College

Empire State Development Corp. - Minority and Women-Owned Business Enterprises Program; and

Ogdensburg Bridge and Port Authority - Capital Planning and Maintenance

State law governing voter registration does not require a “wet signature” and asignature can be affixed electronically if the application form is completed “on-line”

State law governing voter registration does not require a “wet signature” and asignature can be affixed electronically if the application form is completed “on-line”

Informal Opinions of the Attorney General, Informal Opinion 2016-1

Dennis M. Brown, Suffolk County’s County Attorney, explaining that Suffolk County was considering a voter registration system that would allow an individual to register to vote by completing an application online, wrote to the Attorney General to inquire if state law governing voter registration requires that the signature of a registrant be hand written, i.e., written with ink, or a “wet signature.”

Kathryn Sheingold, Assistant Solicitor General in Charge of Opinions, responding to Mr. Brown, opined that “state law governing voter registration does not require a wet signature,” indicating that a signature can be affixed electronically as the “election law does not specifically require a signature written with ink on a voter registration application.” However, cautioned Ms. Sheingold, “the technology … must capture a handwritten signature that can be incorporated into the registration records and compared with the signature that the applicant will write at the polling location at the time of voting.”*

Another element to consider relating to a registration application completed online is that the application, once so completed, would have to either (a) be printed and mailed to the local board of elections by the applicant or a third party assisting the applicant or (b) be completed by appearing at the local board of elections. Otherwise, said Ms. Sheingold, “the County would be creating a new system of registration rather than using the existing system outlined by the Legislature.”

Ms. Sheingold’s response to the Suffolk County Attorney is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2016-1_pw_0.pdf

Although the Attorney General issues Formal Opinions only to officers and departments of State government, Informal Opinions are prepared  by the Attorney General’s Office of the Solicitor General in Charge of Opinions in response to inquiries from officers of a political subdivision of the State.

* Presumably the signature written on the envelope enclosing an absentee ballot submitted by the voter would be compared with electronic signature incorporated into the voter registration records.

Supreme Court’s imposing a “lesser disciplinary penalty” upon remand found to have usurped the authority of the arbitrator under the circumstances

Supreme Court’s imposing a “lesser disciplinary penalty” upon remand found to have usurped the authority of the arbitrator under the circumstances

Fernandez v New York City Tr. Auth., 2016 NY Slip Op 03435, Appellate Division, First Department

In an earlier appeal involving the same parties, the Appellate Division vacated the arbitration award that sustained the New York City Transit Authority's (NYCTA) decision to terminate Carlos Fernandez’s employment.* The Appellate Division then remanded the matter to the Arbitrator for imposition of a lesser penalty.

On remand, however, Supreme Court granted Fernandez’s petition to the extent of restoring him, “upon his successful completion of a medical examination, to his position as a bus operator, with full benefits and accrued vacation running from the date of his reinstatement.”

NYCTA appealed and the Appellate Division “unanimously reversed” the Supreme Court’s action on the law and the facts. The Appellate Division ruled that Supreme Court’s imposing “a lesser penalty” usurped the Arbitrator's authority and the lower court should have remitting the matter to the Arbitrator for a rehearing and new determination as to the appropriate lesser penalty.

The Appellate Division explained that the matter should have been remitted to the original Arbitrator as “there has been no showing that the original Arbitrator is biased or otherwise incapable of carrying out his duties.”

* NYPPL’s summary of the earlier Appellate Division ruling is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2014/08/transcribing-hearing-in-disciplinary.html[In pertinent part, it reports that the penalty imposed by the arbitrator on the employee, termination, was vacated by the Appellate Division and the matter remanded to the arbitrator “for the imposition of a lesser penalty.” In that action the Appellate Division said that the termination of the employee, a NYCTA bus driver for 15 years, with an unblemished record of employment and who had consistently received positive performance evaluations, and had never been disciplined as the sanction “for a single, alleged transgression is grossly excessive and shocks our sense of fairness,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and  Mamaroneck, Westchester County, 34 NY2d 222.]

The 2016 decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03435.htm

 _____________________ 

 A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

 _____________________ 

The U.S. Internal Revenue Service has scheduled a webcast concerning Accumulated Sick and Vacation Pay Deferred to 403(b) or 457(b) Plans

The U.S. Internal Revenue Service has scheduled a webcast concerning accumulated sick and vacation pay deferred to 403(b) or 457(b) Plans

Revenue Agents from the Office of Federal, State and Local Governments Lori Stieber and Patricia A. Regetz will present a webcast addressing the treatment of accumulated sick and vacation pay deferred to 403(b) or 457(b) Plans for tax purposes on June 2, 2016 at 2 p.m. Eastern Time; 1 p.m. Central Time; 12 p.m. Mountain Time, and 11 a.m. Pacific Time.

Register for this webcase at: https://www.webcaster4.com/Webcast/Page/925/15027. 

Those registered will use the same link to attend the event.

Among the topics to be covered:

1. When is accumulated sick and vacation leave pay subject to Federal Employment Taxes

2. When can taxes be deferred and for how long?

3. What is an elective contribution?

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v New York State Unified Ct. Sys., 2016 NY Slip Op 03326, Appellate Division, Fourth Department

A hearing officer, after an administrative hearing conducted pursuant to provisions set out in a  collective bargaining agreement, found Robert Stanek guilty of certain disciplinary charges of misconduct. As a result Stanek was suspended for five days without pay. In addition, the appointing authority placed Stanek on probation for a period of six months and issued a letter of reprimand.

Stanek appealed the appointing authority’s decision but Supreme Court transferred the matter to the Appellate Division “pursuant to CPLR §7804(g)” on the ground that the petition raises a substantial evidence issue.

The Appellate Division said that the Supreme Court’s action was incorrect as the appointing authority’s determination “was not made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law.” Rather, said the court, “the determination was the result of a hearing conducted pursuant to the terms of the collective bargaining agreement."*

Notwithstanding this procedural issue, the Appellate Division retained the matter and consider Stanek’s petition “in the interest of judicial economy.”

The court then explained that although Stanek’s petition raised a substantial evidence issue, its review of this administrative determination pursuant to CPLR §7803(3) is limited to whether the determination was "affected by an error of law or was arbitrary and capricious or an abuse of discretion." If a court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the appointing authority.

Further, the Appellate Division said that “an administrative determination regarding discipline will be afforded heightened deference where a law enforcement agency such as [the court security arm of the Unified Court System] is concerned."**

Noting that Stanek did not contend that the determination is affected by an error of law, the Appellate Division concluded that, viewing the administrative record as a whole, the  determination of the appointing authority was not arbitrary and capricious, or an abuse of discretion. Further, opined the court, “There is evidence in the record that supports the determination, and that evidence was credited by the Hearing Officer and adopted by [appointing authority] in its determination.”

The court also rejected Stenak’s contention that the penalties imposed constitute an abuse of discretion, commenting that “It is well settled that ‘a 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,” citing Pell v Board of Educ. of Union Free Sch. Dist. No. 1, 34 NY2d 222. The court then concluded that the penalties imposed on Stanek, a court security officer, did not shock its sense of fairness considering the higher standard of fitness and character that pertains to law enforcement personnel, coupled with Stanek 's refusal to accept any responsibility for his conduct.

* A collective bargaining agreement may authorize the imposition of multiple disciplinary penalties. In contrast, in disciplinary actions taken pursuant to §75 of the Civil Service Law the courts have held that "the imposition of multiple penalties was improper" as Civil Service Law §75.3 provides for a choice of penalties, thus prohibiting the imposition of more than one of the discrete penalties set out in the statute [see Matteson v City of Oswego, 186 A.D.2d 1017]. However, imposing multiple penalties is possible where there are multiple offenses involved [See Wilson v Sartori, 70 AD2d 959].

** Stanek served as a court security officer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03326.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Federal and State laws, rules and regulations control affecting public sector officers and employees engage in partisan political activities

Federal and State laws, rules and regulations affecting public sector officers and employees engage in partisan political activities

Sources: Internal Revenue Service publication, Hatch Act, New York State’s Ethics Commission, case law

Updated information published by the Federal, State and Local Government office of the Federal Internal Revenue Service explaining the reporting and withholding requirements for election workers is posted on the Internet at: https://www.irs.gov/Government-Entities/Federal,-State-&-Local-Governments/Election-Workers-Reporting-and-Withholding. The Internal Revenue Service also reminds public entities employing individuals to work in primary and general elections that specific statutes  apply to them, including whether they are covered by a "Section 218 Agreement".* 

In addition, certainpolitical activities of State and municipal employees whose employment is fully federally financed may be restricted by the Hatch Act [53 Stat. 1147].

Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election,** using official authority or influence to interfere with or affect the results of an election or nomination and directly or indirectly coerce contributions from subordinates in support of a political party or candidate.

Although a public officer or employee subject to the provisions of the Hatch Act may lawfully seek the nomination for partisan public office, he or she must resign from his or her public employment upon accepting the nomination.

Further, New York State’s Ethics Commission has issued an Advisory Opinion, Advisory Opinion No. 98-12, addressing the application of Public Officers Law §74 to State employees who work on political campaigns, including fundraising. It is posted on the Internet at http://www.jcope.ny.gov/advice/ethc/98-12.htm

Examples of case law include Pagan v Commissioner of Labor, 53 AD3d 964, in which the Appellate Division addressed the disqualification of an applicant for unemployment insurance benefits following his termination for accepting a designation to run as a candidate for the State Assembly, ruling that his employment was terminated due to misconduct.

The individual, employed by the New York City Housing Authority, had violated the Authority's  written policy prohibiting its staff members running for political office in a partisan election.

Noting that “It is well settled that "[v]iolation of an employer's reasonable policies may constitute disqualifying misconduct," the Appellate Division said that the Authority’s guidelines were established “to assure compliance with the Hatch Act (5 USC §1501 et seq.) and the City of New York’s Conflicts of Interest Board Rules.”

Another relevant decision, Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], holds that an individual otherwise entitled to a “due process disciplinary hearing” such as one provided by a Taylor Law Collective Bargaining Agreement or by a State Law such as Civil Service Law Section 75 or Section 3020-a of the Education Law, may be summarily removed from his or her position on the authority of a federal Merit Systems Protection Board determination. 

The Blackburne decision, which addressed the right of an individual to file a Taylor Law contract disciplinary grievance after the Merit Systems Protection Board directed his removal from his position for violating the Hatch Act, held that arbitration would offend public policy as it "would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

*If the election workers are covered by a Section 218 Agreement with the Social Security Administration (SSA), the terms of the Agreement will determine whether the payments are subject to FICA.

** A candidate seeking election to a school board is typically deemed to be seeking office in a “non-partisan” election.

Title VII, a “precise, complex, and exhaustive” statute, does not prohibit employment practices that are not specifically prohibited by the act

Title VII, a “precise, complex, and exhaustive” statute, does not prohibit employment practices that are not specifically prohibited by the act

Cooper v N.Y. State Dep’t of Labor, U S Circuit Court of Appeals, 2d Circuit, Docket #2015-3392

Winifred Cooper¸ a former New York State Department of Labor’s Director of Equal Employment Opportunity, filed suit against the Department alleging that the Department had unlawfully retaliated against her for opposing an employment practice prohibited by Title VII of the Civil Rights Act of 1964 and New York State’s Human Rights Law, Executive Law §§290 et seq.

In December 2012, Cooper learned that the Governor’s Office of Employee Relations [GOER] had developed a plan to “alter the means by which internal Equal Employment Opportunity [EEO] complaints were to be processed by state departments and agencies." 

In the words of the Circuit Court of Appeals, Cooper, “believing that the proposed changes materially conflicted with federal regulations because they would ‘subject the EEO complaint response process to political pressure,’ increasing the likelihood that workplace discrimination would go unredressed,” initiated a series of communications with her supervisors bring her concerns to their attention. Cooper’s position proved persuasive and GOER’s plan was altered in consideration of her views. 

Subsequently Cooper was terminated from her position. Alleging that her termination was “in retaliation for having lobbied against GOER’s proposal,”  Cooper sued. The federal district court dismissed her petition and the Circuit Court affirmed the lower court’s ruling.

The Circuit Court explained that Title VII’s anti-retaliation provision prohibits employers from “discriminat[ing] against any individual … because he [or she] has opposed any practice made an unlawful employment practice” within the meaning of 42 USC §2000e.* Further, said the court, “A plaintiff seeking to demonstrate that he [or she] engaged in protected activity need not show that the behavior he [or she] opposed in fact violated Title VII; he [or she] must, however, show that he [or she] “possessed a good faith, reasonable belief,” that the employer’s conduct qualified as an “unlawful employment practice” under the statute.”

However, said the court, the conduct Cooper opposed – the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims – is not a “practice made an unlawful employment practice” by Title VII nor could Cooper reasonably have believed otherwise. For these reasons Cooper was not entitled to the relief she sought.Accordingly, Circuit Court affirmed the district court's dismissal of her claims.

* As an example, the Circuit Court of Appeals noted, objecting to the employer’s failure to adhere to its own affirmative action program is not protected activity because such a failure is not an “unlawful employment practice” within the meaning of Title VII.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/87702623-71b7-4f51-8987-43915c823f47/6/doc/15-3392_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/87702623-71b7-4f51-8987-43915c823f47/6/hilite/

Challenging a decision to terminate a probationary teacher's employment

Challenging a decision to terminate a probationary teacher's employment

Decisions of the Commissioner of Education, Decision No. 16,894

William Floyd Union Free School District employed Matthew Nadolecki as a special education math teacher subject to his satisfactory completion of a three-year probationary period which was to run through September 28, 2013.  In April 2012 the superintendent advised Nadolecki that he would recommend that the board terminate Nadolecki’s services as a probationary teacher. 

Nadolecki requested a written statement of the reasons for the superintendent’s recommendation. The superintendent responded stated that his recommendation was based on Nadolecki’s failure to meet district expectations in the following areas: [1] ineffective and inadequate classroom teaching techniques; [2] ineffective implementation of lesson plans; [3] ineffective communication with parents; and [4] ineffective and sometimes inappropriate guidance for students. 

Via an April 18, 2012 email, Nadolecki initiated a Level 1 grievance pursuant to his collective bargaining agreement in which he stated that he was “grieving the efforts by the district to terminate [his] probationary appointment through dismissal.”  On April 23, 2012, the superintendent responded, repeating the reasons he had enumerated earlier and denied Nadolecki’s Level 1 grievance. Nadolecki then filed a Level 2 grievance, which grievance was denied on May 3, 2012.

At its May 22, 2012 meeting, the School Board considered the superintendent’s recommendation and voted to terminate Nadolecki’s probationary appointment, effective June 30, 2012. Nadolecki was advised of the board’s decision by letter dated May 24, 2012.

Nadolecki appealed the Board’s decision to the Commissioner of Education, contending that his termination was “in violation of the procedures set forth in the collective bargaining agreement, district policies and was otherwise retaliatory because of his alleged whistle-blowing activities.”  Nadolecki also argued that the Superintendent’s letter dated April 23, 2012 “did not comply with Education Law §3031.”

The School District maintained that it had complied with all applicable laws, including Education Law §3031, when it terminated Nadolecki and that Nadolecki’s petition failed to state a claim upon which relief may be granted.  In addition, the District said that [1] the Commissioner lacks jurisdiction over this appeal, [2] that petitioner lacks standing to bring this appeal and [3] that the appeal is untimely. In addition the District alleged that the April 23, 2012 notice complied with Education Law §3031.

Addressing a number of procedural issues, the Commissioner said that “It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Nadolecki had brought earlier filed a grievance at Level 1 in which he alleged that the district’s efforts to terminate him violated the collective bargaining agreement [CBA] between the School District and Nadolecki's employee organization; asserted that certain CBA provisions regarding evaluations and observations were not adhered to; asserted that he believes he was being terminated for not “staying under the radar;” and because of his participating in a “protected union activity”.

Unsuccessful at Level 1, Nadolecki next filed a Level 2 grievance and a final determination denying his Level 2 grievance was issued on May 3, 2012.* 

Succinctly, the Commissioner said the Nadolecki “claims that [the School District]  violated the provisions of the collective bargaining agreement, which were the subject of a prior grievance, must therefore be dismissed for lack of jurisdiction, citing Bd. of Educ., Commack UFSD v Ambach, 70 NY2d 501.

Nadolecki, in effort to persuade the Commissioner to assume jurisdiction in this appeal notwithstanding his initial election to seek a remedy as provided by the CBA, argued that because he commenced his grievance prior to his actual termination by the School District, the Commissioner should retain jurisdiction over this appeal.  However, said the Commissioner, Nadolecki was attempting to raise the same collective bargaining issues in this appeal as he raised in the grievance and the Commissioner rejected Nadolecki’s argument that because he only grieved School District’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues from his actual termination.

The Commissioner also observed that, in any event, Nadolecki claims would be dismissed under the doctrine of election of remedies.  The Commissioner explained that the commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of a subsequent appeal to the Commissioner involving the same issues.

Turning to the merits of Nadolecki appeal, the Commissioner pointed out that “ A board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. Nadolecki, said the Commissioner, failed to establish that he was terminated for a constitutionally impermissible reason, or in violation of a statutory proscription. 

While Nadolecki contended that he was terminated in retaliation for alleged "whistle-blowing", the Commissioner found that, on the record before her, he has not met his burden of establishing that his dismissal was in retaliation for whistle blowing. 

Although Nadolecki disagreed with the School District’s decision to terminate his services, the Commissioner ruled that he did not establish that the School District terminated his employment for a constitutionally impermissible reason or in violation of a statutory proscription, thus failing to meet his burden of proof.

Noting that Nadolecki alleged that the School District violated Education Law §3031 by failing to give him more than a general statement as to the reasons for his dismissal, the Commissioner rejected this claim, explaining that Nadolecki “has not established that [the School District] failed to comply with the requirements of Education Law §3031."

Further, said the Commissioner, “even if noncompliance were established, the remedy for a violation is not automatic reinstatement of a teacher to his former position, and equity does not require a board to provide a windfall to petitioner in the form of salary because he performed no services for the district after the termination date.”

The Commissioner then dismissed Nadolecki’s appeal in its entirety.

* Significantly, Nadolecki did not allege in this appeal that the union breached its duty of fair representation with respect to processing his grievance. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16894