TO SEARCH this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

December 31, 1991

AIDS AND THE HUMAN RIGHTS LAW

 AIDS AND THE HUMAN RIGHTS LAW

The Court of Appeals has affirmed the Appellate Division's decision in Health Insurance Assoc. of America v Corcoran, 115 AD2d 61 holding that health insurers may lawfully test applicants for the AIDS virus and decide not to insure those testing positive for HIV. The case had been brought by a group consisting of insurance companies and associations to challenge a rule by the Superintendent of Insurance prohibiting writers of health insurance policy denying coverage to persons testing HIV positive. The rule prohibited an insurance company from asking applicants to submit to HIV testing and then refusing to issue a policy if the test was positive. The regulation, however, did not apply to the issuance of a life insurance policy.

In contrast, the Commissioner of Human Rights ruled that a hospital unlawfully discriminated against an applicant for a pharmacy position when it refused to employ the applicant because of a positive HIV test [State Division of Human Rights (John Doe) v A Medical Center, NYLJ 12/26/90]. Here the Commissioner said that "it is undisputed that [Doe] is HIV seropositive and that HIV seropositivity constitutes a "disability" within the meaning of the Human Rights Law." The decision indicates that the only reason why Doe was denied employment was because of his HIV seropositivity. The major issue before the Commissioner was whether Doe's disability "prevented him from performing 'in a
reasonable manner' the duties of a pharmacist with [the Medical Center].

According to the SDHR ruling, there was "overwhelming evidence in the record to the effect that [Doe's] unrestricted employment as a pharmacist posed a negligible risk of infection to patients." It was held that the Center's denying Doe unrestricted employment was based on surmise, conjecture and blind prejudice, rather than the facts, in violation of the Human Rights Law. The Center was directed to offer Doe the next available position, subject to any additional testing required by regulations of the New York State Department of Health.

CREDIBILITY OF WITNESSES


CREDIBILITY OF WITNESSES
Decisions of the Commissioner of Education, Decision #12,399

A teacher was charged with conduct unbecoming a teacher based on allegations that he touched the breasts or buttocks of female students on a number of occasions. When the §3020-a hearing panel cleared him of all charges and specifications, the district appealed. The Commissioner sustained the hearing panel's determination.

One of the issues involved the credibility of the witnesses. As to the testimony of the student-witnesses, the panel said "words are hopelessly inadequate to describe the tinny, artificial, and canned nature of ... [the teacher's] accusers." The record indicates that teacher was alleged to have repeatedly "patted the rear-ends of some of the girls in a classroom full of children and none of the boys (except one whose testimony was discounted by the panel) saw any of this happen."

As to the testimony of another student, the panel said that "an oath has no meaning for this child whatsoever; she will say whatever she wants, whenever she wants."

On the issue of credibility, the Commissioner said that "where the panel determination rests in a major part on determination of witness credibility, [he] will not substitute [his] judgment for that of the panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts."

The Commissioner also rejected the district's argument that the accused teacher had the burden of proving that the student complainants were not telling the truth. A psychologist hired by the district testified that he concluded that "all the girls he interviewed were truthful." The district claimed that the teacher had the obligation of calling his own expert to refute such testimony. The Commissioner said that the district had the burden of proving the teacher's guilt by a preponderance of the evidence and "the fact that the [teacher] failed to call an expert in response to the [district's] expert does not reflect adversely on the [teacher] because he had no duty to call an expert."

USE OF PHYSICAL FORCE


USE OF PHYSICAL FORCE
Decisions of the Commissioner of Education, Decision #12,421

The Commissioner rejected an appeal from a determination by a §3020-a hearing panel that found a teacher guilty of using excessive force against a pupil and imposed a penalty of a one month suspension without pay.

The record indicates that the pupil was unruly and confrontational and provoked the incident. Although district's regulations acknowledge that the use of reasonable physical force to restrain a student or to protect oneself may be justified under limited circumstances, here the hearing panel decided that the teacher's actions went beyond that. It said that the teacher did not "simply restrain the student but, rather, pushed her aggressively against the wall."


RELEASING STUDENTS DURING THE SCHOOL DAY


RELEASING STUDENTS DURING THE SCHOOL DAY
Sprecher v Port Washington Union Free School District, 166 A.D.2d 700 

The Sprecher case concerns a matter frequently faced by school administrators and teachers -- the release of a student from class during the school day. It seems that under certain conditions a teacher or administrator may be held liable negligence for releasing the student. Liability will result if the court finds that the teacher or administrator did not act "prudently" under the circumstances.

In this action a parent sued the principal and the district for negligence "in the discharge of their duty of care toward the [students] while they were in their custody." At the time the children were the center of a custody dispute between the parents.

According to the decision, the school principal released students to their natural father when the father served the principal with a Texas court order, certified by a New York Family Court clerk, transferring the custody of the children from their mother to him. The principal believed he had to comply with the terms of the Texas court order when he released the students to the custody of their father.

The Appellate Division said that "the school district has a duty to exercise the same degree of care toward the students in its custody as a reasonably prudent parent would exercise under comparable circumstances. Here the court concluded that this test had been met. Agreeing with the principal's action in releasing the children to their father, the Appellate Division ruled that "as a matter of law [the principal's] actions in obeying the Texas Court order were those of a reasonably prudent parent."

The decision notes that "generally a lawful order of a court must be obeyed or the individual against whom such an order is directed may be liable for contempt for his failure to do so." In addition, the Appellate Division said that when faced with a court order "one is not free to simply ignore it on the grounds that it may be erroneous."

FILING UNLAWFUL DISCRIMINATION CLAIMS AGAINST SCHOOL DISTRICTS

FILING UNLAWFUL DISCRIMINATION CLAIMS AGAINST SCHOOL DISTRICTS
Stoetzel v Wappingers Central School District, 18 AD 2d 636 561 NYS2d 71

Gerhard Stoetzel claimed that he was subjected to unlawful discrimination due solely to his national origin or ancestry in violation of §296 of the Executive Law [the Human Rights Law] when he was suspended without pay by the School District.

His claim was dismissed by a Supreme Court judge for a number of reasons, including timeliness. On this point the Courts said that the complaint had not been brought within the Statute of Limitations -- the one year period allowed by §297.5 of the Executive Law.

In reviewing Stoetzel's appeal, the Appellate Division said that the lower court's dismissal on the basis of timeliness was incorrect, indicating that "it is well established that the institution of civil actions to recover damages for unlawful discriminatory practices under Executive Law §296 is governed by the three-year statute of limitations prescribed in CPLR [Civil Practice Law and Rules] §214(2)."

However, this ruling did not prove to be particularly helpful to Stoetzel as the Appellate Division also indicted that when a school district is sued, §3813(1) of the Education Law requires that a notice of claim must be presented to the district involved within three months after the accrual of the claim. Since Stoetzel conceded that he had not complied §3813(1) [nor did he ask for approval to file a late claim until after the Statute of Limitations had expired], the Appellate Division said that his complaint was "fatally defective" and dismissed his appeal.

MITIGATION OF DAMAGES FOR BACK SALARY UPON TERMINATION



MITIGATION OF DAMAGES FOR BACK SALARY UPON TERMINATION
Gross v Elmsford UFSD, 73 A.D.2d 949, [affd., 78 NY2d 13]

In Gross v Elmsford UFSD the Appellate Division, affirming a lower court's determination, held that if a teacher was terminated, the teacher had a duty to mitigate damages for back pay by accepting employment in another suitable position if such an opportunity for employment is offered by the district.

The basic question concerns the duty of a tenured teacher ultimately found to have been wrongfully terminated to mitigate his or her employer's liability for damages resulting from the unlawful dismissal.

SOME LAYOFF CONSIDERATIONS

SOME LAYOFF CONSIDERATIONS

§§80 and 80-a of the Civil Service Law deal with layoff of officers and employees in the Classified Service from the public service. Although there may be no statutory equivalents to §§80 and 80-a of the Civil Service Law insofar as incumbents of exempt and labor class positions are concerned, it is possible that a provision contained in a Taylor Law agreement or some rule, regulation or employer policy might be applicable in such cases.

In addition, layoff from positions in the unclassified service are sometimes governed by statute. For example, §2588 of the Education Law controls with respect to the layoff of tenured teachers in school districts having a population of one million or more.

As to mechanics, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these sections of law. (see 1976 Opinions of the Attorney General 7).

Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.

It may be costly to the employer if it fails to make correct determinations concerning an employee's tenure status and seniority for the purposes of layoff. If a person ultimately found to have superior rights to retention is laid off and another individual having lesser rights to retention is continued in service instead, the Courts will usually award the individual who was laid off in error back salary and other benefits. The employer will normally be directed to reinstate the individual to his or her former position as well.

Some of the factors to consider in layoff situations are outlined below:

TENURE: Insofar as tenure is concerned, those lacking permanent status in the title [i.e., temporary employees and provisional appointees] are to be terminated before permanent employees are laid off. Permanent employees serving their probationary period are to be laid off before permanent employees in the title who have completed their probationary period. For the most part, so-called "contingent permanent employees" enjoy the same tenure rights as permanent employees when it comes to layoff.

SENIORITY: As to seniority, the basic principle in a layoff situation is "LIFO" - Last In; First Out. For the purposes of §§80 and 80-a, seniority is determined on the basis of the date of the individual's first permanent appointment followed by continuous permanent status in the classified service up to the date of his or her layoff. Such "seniority" is not always the same as the employee's "seniority in the title" or seniority under a Taylor Law agreement.

The fact that at sometime during his or her career the employee may have been provisionally promoted or been placed on leave from his or her "permanent position" or employed in a position in a different jurisdictional class will not necessarily constitute a break in the employee's "continuous permanent status" for the purposes of §§80 and 80-a. In some cases the employee's date of seniority may include service with another governmental jurisdiction.

LEAVES AND RESIGNATIONS: Separation from employment on leave of absence without pay in excess of one year would, in most cases, constitute an interruption of continuous service. Service is deemed interrupted if an individual resigns from his or her position and is not reinstated or reappointed within one year of the effective date of the resignation.

If only a few positions are involved in a layoff, it is somewhat easier to determine the specific individual or individuals to be laid off. Where large numbers of positions are abolished, especially where the layoff unit is geographically spread out, the task of determining the rights of employees based on their relative seniority is made significantly more complex.

LAYOFF UNITS: Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72].

MILITARY SERVICE: Military service may be a factor in determining seniority as well. A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [§85, Civil Service Law]. Five years of service are added to an eligible disabled veteran's original date of permanent appointment; 2| years of service credit is added in the case of non-disabled veterans.

The spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in §85.7 of the Civil Service Law.

BLIND EMPLOYEES: A blind employee is entitled to absolute preference in retention in cases of layoff.

TAKEOVERS: Another aspect that may prove important in some situations involves determining §§80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to §45 of the Civil Service Law or a similar law. Such employees may have two seniority dates and it may be necessary to consider both when determining their retention rights in a layoff.

One is their date of seniority with respect to other public employees generally, usually determined on the basis of the date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise at the time of the takeover. Typically such "dual seniority" rights flow from legislation that may have been adopted in connection with the takeover.

TAYLOR LAW: Another difficulty may arise as a result of an employer's efforts to comply with "layoff provisions" contained in a Taylor Law agreement. The Courts have indicated that statutory seniority rights for the purposes of layoff may not be impaired or limited by Taylor Law agreements.

In Szumigala v Hicksville Union Free School District, 539 NYS2d 83, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

The same is true with respect to Taylor Law contract provisions that affect the layoff rights vested in employees by §§80 or 80-a of the Civil Service Law. [see Plattsburgh v Local 788, 108 AD2d 1045].

AFFIRMATIVE ACTION: Layoff may also adversely impact upon affirmative action plans, interests and goals. Substantial numbers of employees employed pursuant to Affirmative Action programs are expected to be among those having the least seniority and thus having the greatest potential for layoff. Further, reinstatement following layoff is also based on seniority and here the so-called "rule of one" controls. The person having the greatest seniority willing to accept the position must be appointed to the item or the position must be kept vacant.

It appears unlikely that a layoff scheme based on a "bona fide" seniority system will be set aside by the courts solely on the basis of evidence that such a system has an adverse impact on minorities and women or impairs the gains minorities and women have attained under an Affirmative Action plan. One Federal appeals court has concluded that unless there is some evidence that layoff procedures based on seniority were adopted or applied with an intent to discriminate against protected classes, layoffs based on seniority do not violate Title VII or the post-Civil War Civil Rights statutes [42 USC 1981, 42 USC 1983] (NAACP v Detroit Police Officers Association, 52 FEP 1001).

RETIREMENT: In an effort to reduce the total number of persons to be laid off, somtimes legislation has been passed that provides certain State employees with a "retirement incentive." In such situations typically incumbents of positions identified by a State agency for elimination due to economy, consolidation or abolishment of functions, curtailment of activities or for similar reasons who are eligible and elect to retire might be given additional retirement member service credit for each year of retirement member service, not to exceed a maximum of specified limit of such additional service credit.

December 27, 1991

Expulsion of union members by the employee organization


Expulsion of union members by the employee organization
Matter of Rutman and CSEA, 23 PERB 4602

When member of the union decided to support a rival organization, the union expelled him from membership. The employee claimed that such action was an improper practice within the meaning of §209-a.2(a) of the Civil Service Law [the Taylor Law] [Matter of Rutman and CSEA, 23 PERB 4602].

PERB's Director of Public Employment Practices and Representation, citing Matter of Schneider, 23 PERB 4567, dismissed the complaint, noting that PERB has repeatedly refused to entertain complaints about internal union discipline or other internal union affairs which neither affect an employee's terms and conditions of employment nor violate any fundamental purposes or policies of the Act."

DISCONTINUING EMPLOYEES' RIGHT TO FREE PARKING

DISCONTINUING EMPLOYEES' RIGHT TO FREE PARKING
Amalgamated Transit Union and NYC Transit Authority, 23 PERB 4603

An ALJ ruled that an employer that had been providing employees with free parking could unilaterally withdraw the benefit because it had retained the right to withdraw the benefit at any time.

The decision notes that the Authority had adopted rules regulations that included a provision that stated that the "granting of permission to eligible employees to park their private vehicles on Authority property is at the absolute discretion of the Authority and is subject to being withdrawn at any time." 

Unilaterally discontinuing employee from accruing vacation and sick leave credits while on §207-c of the General Municipal Law


Unilaterally discontinuing employee from accruing vacation and sick leave credits while on §207-c of the General Municipal Law
Matter of CSEA and Nassau County, 23 PERB 4595

PERB ruled that it was an improper practice for the county to unilaterally discontinue allowing its employees on disability leave pursuant to §207-c of the General Municipal Law to continue to accrue vacation and sick leave credits while on such leave.

§207-c allows police officers and others covered by its provisions to continue to receive full pay while on disability leave as a result of a line-of-duty injury.

PERB'S ALJ held that as sick leave and vacation credits are mandatory subjects of negotiations and it had been a past practice to allow such accruals during §207-c leave situations, Nassau violated §209-a.1(d) of the Civil Service Law by unilaterally discontinuing the practice.


NOTIFYING EMPLOYEES OF CHANGES IN WORK ASSIGNMENTS

NOTIFYING EMPLOYEES OF CHANGES IN WORK ASSIGNMENTS
Matter of the City of Buffalo, 23 PERB 3048

 PERB affirmed a decision by an ALJ that a union demand that the employer provide unit members with five days advance notice of changes in their shift or building assignment was a mandatory subject of collective bargaining.

 One of the elements to the City's objection was its claim that demand was not a mandatory subject of negotiations because it did not provide for emergency situations in which advanced notice could not reasonably be given. The ALJ concluded that on the basis of testimony and documentary evidence in the record both parties "specifically understood that emergency situations would constitute an exception to the five-day notice contained in the demand."

 PERB noted that in City of Schenectady, 21 PERB 3022, it had ruled that a similar demand was nonmandatory "because [PERB was] unable to determine from the mere language of the demand or parole evidence concerning its intent, that the demand would not interfere with the employer's right to determine staffing needs."

 In contrast to the situation in Schenectady, PERB said that in the Buffalo instance "both parties understand that the demand is intended to apply in nonemergency situations, and that alternatives, such as the payment of overtime compensation, are still available to meet emergency staffing needs. Under these circumstances the demand is mandatorily negotiable.

DUTY OF THE NEGOTIATORS TO RECOMMEND THE RATIFICATION OF NEGOTIATED AGREEMENT


DUTY OF THE NEGOTIATORS TO RECOMMEND THE RATIFICATION OF NEGOTIATED AGREEMENT
Matter of Copaigue Union Free School District, 23 PERB 3046

The holding in Matter of Copaigue Union Free School District, concerns the duty of negotiators to recommend ratification of a proposed agreement.

 In this case the Union's chief negotiator, at the beginning of a unit member meeting to consider ratification of a proposed agreement, announced that the four person negotiating committee was deadlocked, 2 to 2, with respect to approving the ratification of the tentative agreement. The agreement was rejected, 19 to 4.

 The District charged that this statement violated §209-a.2(b) of the Taylor Law. The ALJ agreed with the District, holding that the disclosure of the split in the views of the team members concerning the acceptance or rejection of the tentative agreement by the chief negotiator was, at best, the expression of a "neutral position on the part of the negotiating team in contravention of its duty under the [Taylor Law] to affirmatively support ratification."

 PERB affirmed the ruling, noting that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support." As a remedy, it ordered the union to execute a collective bargaining agreement embodying the agreements reached by the parties and reflected in a memorandum of understanding if requested to do so by the District.


CONTRACTING OUT JANITORIAL WORK

CONTRACTING OUT JANITORIAL WORK
In the Matter of the Middle Country Central School District, 23 PERB 3045

PERB ruled that a School District violated its Taylor Law agreement when it unilaterally subcontracted janitorial work in connection with the opening of school buildings for special events on holidays.

 The District had argued that the union had waived its right to negotiate terms and conditions of employment not specifically covered by the agreement. PERB said that the District had the burden of proving this "affirmative defense" and upheld the Administrative Law Judge's [ALJ] finding that a clear, unequivocal waiver by the union had not been demonstrated by the District.

 PERB also agreed with the ALJ's determination that "arbitration is not appropriate under the circumstances of this case, since contractual coverage of the subcontracting issue has not been established and since there is no pending grievance to which [PERB] could defer in any event."

 The District was directed not to assign nonunit personnel to open District buildings on holidays and to make unit employees whole for any lost wages due to the contracting out of unit work, with "interest at the maximum legal rate."


PROBATIONARY TERMINATIONS


PROBATIONARY TERMINATIONS

 As a general rule, a permanent appointment to a position in the competitive class is subject to a probationary period. It is well settled law that if a probationer is terminated in good faith after completing his or her minimum probationary period but before completing the maximum period of probation for the position, such termination may be effected without notice of §75 Civil Service Law [or its equivalent] disciplinary charges and a disciplinary hearing.

 Sometimes an employee whom the appointing authority claims has been terminated during his or her probationary period challenges the termination on the grounds that he or she has completed the probationary period and thus cannot be terminated except for cause and after a hearing. In such cases the date of the probationer's permanent appointment is critical insofar a determining the date on which the employee's probationary period ended. The problems that may arise when there is some question as to the effective date of a permanent appointment is illustrated in Mallon v Parness, 171 A.D.2d 899.

 In Mallon the parties agreed on only one fact: Mallon was terminated from his position of Sergeant with the Suffern Police Department effective April 11, 1989. The effective date of his promotion to Sergeant was, however, a critical, but unresolved question.

 Mallon contended that he had been promoted to Sergeant, subject to a twenty-six week probationary period, effective July 18, 1988. He claimed that he thus completed his probationary period on January 18, 1989. He offered an affidavit from the former Mayor of Suffern supporting his claim of appointment effective July 18. The Village, on the other hand, submitted documentary evidence showing that Mallon had been promoted to the Sergeant position effective October 26, 1988 in support of its claim that he had not yet completed his probationary period when his promotion to Sergeant was terminated. To further complicate the matter, the records of the Rockland County Personnel Office show that Mallon was appointed Sergeant effective June 1, 1988.

 If either the date of appointment claimed by Mallon or the date of appointment recorded in the Personnel Office was correct, Mallon had completed the required probationary period and he was entitled to notice and hearing before he could be lawfully terminated. If Mallon's effective date of appointment was October 26, as claimed by the Village, his termination on April 11, 1989 without any notice or hearing was lawful. The Appellate Division decided that there was a material question of fact to be resolved and that summary judgment in favor of the Village by the lower court was inappropriate under the circumstances.

[EDITOR'S NOTE: The appointment date in the Civil Service Commission's or Personnel Officer's records are usually held to control.] 


THE GEOGRAPHICAL JURISDICTION OF SUNY PEACE OFFICERS


THE GEOGRAPHICAL JURISDICTION OF SUNY PEACE OFFICERS

 The Attorney General advised the Chancellor of State University that a State University "peace officer possesses limited law enforcement powers when outside his [or her] geographical area of employment" [Formal Opinions of the Attorney General, 90-F10].

 The Opinion indicates that this issue is part of the "bailiwick problem." According to 90-F10, a peace officer may exercise warrantless arrest authority only when within the "geographical area of [the peace officer's] employment as defined in §140.25(5)" of the Criminal Procedures Law with one exception: a peace officer, pursuant to §140.25(4), may make a warrantless felony arrest outside his or her jurisdiction if "the felony was committed in the peace officer's presence and the arrest is made immediately after the felony is committed."

 The State University had asked if its peace officers' geographical jurisdiction included areas which a peace officer might traverse traveling from one discrete campus or part of a campus to another. §355 of the Education Law describes aSUNY peace officer's jurisdiction, including "close pursuit jurisdiction," insofar as the campus and other property of the university, including public highways that cross or adjoin University property is concerned. The Attorney General statedthat Legislature has "described with specificity" the geographical jurisdiction of State University peace officers with respect to a variety of their functions. He concluded the Legislature intended to restrict the exercise of the specific powers of SUNY peace officers to the geographical boundaries set out in §355(2)(1) of the Education Law and §690.25(3) of the Criminal Procedures Law.

 He then concluded that a SUNY peace officer's jurisdiction did not include "the off-campus public streets and public thoroughfares that the officers may traverse while in transit from one separate part of a University campus to another separate part ... [or] while in transit from one University campus to another." He also indicated that except as provided by §140.25(4), "an on-duty SUNY peace officer, while outside the geographical jurisdiction of his [or her] employment, has limited power to arrest without a warrant in the capacity of a private citizen, rather than in the capacity of a peace officer."

TESTING FOR ILLEGAL DRUGS


TESTING FOR ILLEGAL DRUGS

Below are a number of decisions that involved the use of illegal drugs by law enforcement personnel have been handed down by New York courts.

 In Jones v Ward, 560 NYS2d 781, the Appellate Division, First Department discusses drug testing procedures. Jones had been found guilty of unlawfully ingesting and possessing cocaine after a hearing. The record indicated that his urine, which he voluntarily provided, tested positive for cocaine using an EMIT test. Additional tests were also positive. The Commissioner rejected Jones' theory that the positive test results could have be caused by taking a "cough medicine, or possibly cocaine dust [to which he was exposed] during a drug arrest." Found guilty of violating a provision of the Department's Patrol Guide, Jones was dismissed from his position.

 The decision states that "positive results from an EMIT test, which are confirmed by a second test, or as here by two additional testing procedures, is sufficiently reliable to constitute substantial evidence that the person whose urine was tested used drugs."

 Gdanski v New York City Transit Authority, 561 NYS2d 51, involves the use of laboratory records of a urinalysis as evidence in an administrative proceeding. Transit Authority police officers were subject to being tested for drugs and their medical fitness after hospitalization. The record indicates that Gdanski had been hospitalized and that he tested positive for drugs on two occasions following his discharged from the hospital. The first sample tested positive for morphine; the
second was positive for cocaine.

 Gdanski, dismissed after a hearing, challenged the use of laboratory records of the test indicating that his urine tested positive for cocaine at the hearing. The Court held that the use of these records was permitted. It said that "not only were the laboratory records of the urinalysis admissible into evidence as falling under the business records exception to the hearsay [evidence] rule ... they were also admissible hearsay evidence in this administrative proceeding.

 As to the business record exception, there was testimony that indicated that the records were kept in the ordinary course of business by the laboratory. In addition there was testimony as to the "unaltered condition of the urine sample up to the time it was deposited with the laboratory." Gdanski also claimed that the Authority's drug testing policy constituted an unreasonable search under the United States Constitution. The Appellate Division disagreed, indicating that "the privacy expectations of police officers are diminished with respect to inquiries by the State into their physical fitness to perform on the job." Two cases involving "reasonable suspicion" sufficient to support requiring a law enforcement officer to involuntarily submit to testing for illegal drugs are Eldridge v Koehler, 561 NYS2d 161 and Martinez v Ward, 561 NYS2d 195. In Eldridge the Appellate Division ruled that "observations of [Eldridge's] physical appearance and demeanor" were sufficient to constitute reasonable suspicion that Eldridge was under the influence of drugs so as to justify an order requiring him to submit to urinalysis.

 Martinez, however, refused to submit to a drug test when he was suspected of drug use. He was dismissed from his position. When he challenged the termination, the Court found that his erratic behavior [mood swings from "animated behavior to fits of crying and depression"]; being observed both on-duty and off-duty in a known drug area; and finding a crack vial in his patrol car was deemed reasonable suspicion to suspect Martinez of drug use.

 In a case involving the alleged purchase of a controlled substance, Sarro v Ward, 561 NYS2d 3, one of the issues involved the credibility of witnesses where the testimony given by the witnesses was conflicting. The Court indicated that the choice as to which testimony to credit rests solely with the administrative agency. 

November 1, 1991

REFUSAL TO PROMOTE ALLEGED TO BE UNLAWFUL DISCRIMINATION

REFUSAL TO PROMOTE ALLEGED TO BE UNLAWFUL DISCRIMINATION
Foxell v New York City Human Resources Administration, 167 A.D.2d 126

Foxell, a social services caseworker, was briefly hospitalized for stress and place on sick leave for about three months.

Although he took and passed a promotion examination for Supervisor I [he was rated 73 out of some 2,000 candidates] and was interviewed for the position, he was not selected for appointment. Foxell alleged that he was denied the promotion because "respondents determined that he was medically unable to handle the duties of the position." He sued, claiming unlawful discrimination in violation of the Human Rights Law, citing as evidence of this allegations that he was not permitted to resume his normal duties upon his return from sick leave and that his supervisors barely spoke to him following his illness.

The Appellate Division, First Department, said that Foxell had stated a cause of action and reversed a lower court decision dismissing his petition. It said that "although respondents had no obligation to give [Foxell] any reason for their determination not to promote him, such determination may not be based upon illegal grounds, including unlawful discrimination."

The Count concluded that Foxell had "plainly alleged a link between his hospitalization and sick leave and his subsequent treatment on the job." While this did not directly establish improper reasons for the denial of the promotion, "it is certainly probative and suggestive of [the] same." The Court then reinstated Foxell's petition, allowing him to proceed with his discrimination action.

RIGHT TO COUNSEL DURING ADMINISTRATIVE INVESTIGATIONS


RIGHT TO COUNSEL DURING ADMINISTRATIVE INVESTIGATIONS
Sundram v Hallerman 164 A.D.2d 189, decided with Sundram v Kirschbaum et al

Does an individual have the right to have his or her attorney present during an "investigatory interview?" This is frequently a question raised in the course of a disciplinary investigation and was one of the issues considered by the Appellate Division, two cases, Sundram v Kirschbaum et al, and Sundram v Hallerman.

Sundram, Chairman of the State Commission on Quality Care for the Mentally Disabled, appealed a lower court's ruling that employees at Bellview Hospital Center in New York City could not be compelled to testify during the Commission's investigation into the death of a patient and the sexual abuse of another without the benefit of counsel being present. The Commission had attempted to compel certain employee witnesses to testify before it without their attorneys being present. The Commission had earlier advised the employees of its policy against allowing attorneys to be present during its interviews.

The Appellate Division, reversing a lower court ruling that allowed the employees to have their lawyers with them during their testimony, said that "the courts consistently have rejected the right to counsel before an investigatory administrative body." It also held that there was no constitutional right to counsel in this case. The Appellate Division described the Commission's authority as investigatory in nature "as it has no adjudicative functions, existing merely to gather facts, generate reports and make recommendations." The ruling indicates that the fact "that disciplinary or criminal proceedings may result from the Commission's investigatory function is insufficient reason to impose a right to counsel."

N.B. Some Taylor Law contracts provide that an employee may have attorney or a union representative present during a predisciplinary investigatory interview.]

As to the claim that there was a right to counsel pursuant to §73 of the Civil Rights Law, the Appellate Division said that although the Kirschbaum and Hallerman briefs conceded that the Commission was not an "agency" within the meaning of that Law. they then argue that the "Commission is the functional equivalent of an agency as defined in the Civil Rights Law ... and therefore should be bound by the same right to counsel provisions." The Appellate Division rejected the argument, stating that "the statutory provisions of the Civil Rights Law §73 are clear and we should not extend them beyond the unambiguously expressed intentions of the Legislature."

REFUSAL TO UNDERGO TRAINING DEEMED MISCONDUCT

REFUSAL TO UNDERGO TRAINING DEEMED MISCONDUCT
Rawlins v Hartnett, 561 NYS2d 110

Nyra Rawlins, a school bus driver, was told by her employer and by the Department of Transportation that in order to keep her job she was required to complete a 20-hour training course. When she failed to attend one of the sessions during which the course was offered, she was terminated. Rawlins applied for unemployment insurance benefits. Disqualified on the basis that her employment
was terminated due to misconduct, she sued.

The Appellate Division upheld the Unemployment Insurance Board's determination, noting that the record clearly showed that Rawlins had not taken the course as required. In addition, the Court said that Rawlins had never indicated to her employer that she would take the course at any time in the future. Under the circumstances the Court held that the Board's decision disqualifying Rawlins from receiving benefits due to misconduct was supported by substantial evidence.

In another case involving the separation of an employee for alleged misconduct, McMillan v Hartnett, __ AD2d __, the Appellate Division upheld the Board's disqualification of an employee for unemployment insurance benefits where the record showed that McMillan was not only absent excessively during a two-year period, but was late for work some 70 days in a 10-month period. Also noted was the fact that McMillan refused to accept a transfer to another work shift that her employer deemed necessary due to her attendance record. 

JOINING THE NEW YORK STATE EMPLOYEES' RETIREMENT SYSTEM


JOINING THE NEW YORK STATE EMPLOYEES' RETIREMENT SYSTEM
Klein v Regan, 165 A.D.2d 944

To properly file an application for membership in the New York State Employee's Retirement System the application must be delivered to and received by the appropriate official. Klein v Regan, 561 NYS2d 107, discusses the question of what constitutes a proper filing of the application for membership.

Klein, elected to a County Legislature, was not required to join the System. However Klein claimed that he elected to do so and that prior to his taking office in January, 1972, he completed the required application form for membership and gave it to the then Deputy Clerk of the Legislature. Klein alleged that the Deputy Clerk assured him that he would file the application for him. About five years later Klein learned that he had never been enrolled as a member of the System.

Klein then filed a "second application" for membership, and became a member in January, 1980. When he was enrolled in Tier III, he claimed that he should have been enrolled in Tier I.

The benefits under Tier I differ significantly from those available to members under Tier III]. The Retirement System denied his request.

Affirming the System's determination, the Appellate Division said that as Klein's membership in the System was optional, he could not become a member until his application was actually filed with the Retirement System. The fact that there may have been uncontradicted proof that Klein had given the application form to the Deputy Clerk for transmittal to the System was viewed as irrelevant by the Court.

The Court said that "simply mailing an application is not the equivalent of filing; [a application] is filed only when it is delivered to and received by the appropriate official." Delivering the membership application form to the Deputy Clerk was not the equivalent of filing it with the System unless it could be shown that the System had designated the Deputy Clerk as its agent for this purpose. As there was no showing that the Deputy Clerk had been so designate, the Comptroller's decision was affirmed.

The Appellate Division, Third Department cited its ruling in Klein in a similar case, Bolier v New York State Employees' Retirement System, 167 A.D.2d 815. Bolier, whose membership in the System was also "optional," claimed that he should have been enrolled in Tier II rather than Tier III.

Although appointed in June, 1976, Bolier's membership application was not filed with the System until August 12, 1976. The cutoff date for enrolling as a Tier II member of the System was July 27, 1976. Again the Court said "he could not become a member ... until his application was actually filed with the ... Comptroller." 

CONFLICTING TESTIMONY IN DISCIPLINARY HEARINGS

CONFLICTING TESTIMONY IN DISCIPLINARY HEARINGS
Sarro v Ward, 561 NYS2d 3

It is not unusual for a hearing officer or appointing authority to be faced with conflicting testimony concerning events in the course of a disciplinary hearing. In Sarro v Ward the court considered the issue of the assignment of credibility to the testimony of witnesses in such a proceeding.

Sarro was charged with attempting to purchase a quantity of a controlled substance. Although there was conflicting testimony presented during the hearing, he was found guilty of the charge on the basis of the testimony given by the employer's witnesses and dismissed from his position with the New York City Police Department.

Sarro appealed both the decision and the penalty imposed. The Appellate Division held that "[w]here there is a conflict in the testimony produced ... where reasonable men might differ as to whether the testimony of one witness should be accepted or testimony of another rejected, where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rest solely upon the [administrative agency]."

According to the ruling, a court may not weigh the evidence or reject the choice made by the agency where the evidence is conflicting and there is room for a choice to be made. Finding that the credited testimony of the employer's witness provided "substantial evidence for the determination," the Court affirmed the disciplinary determination and held that the penalty imposed, termination, did not shock its sense of fairness.

SCHOOL ADMINISTRATOR'S CERTIFICATE RULED MARITAL PROPERTY IN DIVORCE PROCEEDING


SCHOOL ADMINISTRATOR'S CERTIFICATE RULED MARITAL PROPERTY IN DIVORCE
PROCEEDING
Di Caprio v Di Caprio, 219 A.D.2d 819 

In this divorce action the Appellate Division ruled that a master's degree and a permanent certificate in school administration acquired by the husband during marriage were marital property. Accordingly, the spouse was entitled to a distributive share of the value of the husband's degree and the certificate "because they are items of economic value that were acquired during the marriage."

The economic value was based on the "enhancement of [the husband's] earning power resulting from the degree and the certificate ...." This was determined by projecting the husband's future earnings on the basis of his actual earnings.

According to the decision, this was accomplished by comparing the salary the husband actually earned as an administrator with that which he would have earned had he remained a teacher, adjusted for taxes, and then multiplied by the number of years remaining in the husband's work life, discounting this amount to its "present value." The court said that this method of valuation is realistic and reasonable.

August 22, 1991

Reduction of the penalty imposed by an arbitrator


Reduction of the penalty imposed by an arbitrator
Town of Rotterdam v CSEA, Supreme Court, Schenectady County, Docket #96-1117, not selected for publication in the Official Reports

An arbitrator determined that although Erich Kaiser, an highway equipment operator, was guilty of insubordination, the penalty of termination was excessive and inappropriate. He directed that Kaiser be reinstated and that a  "period of suspension without pay, a six-month period of probation and loss of seniority for the suspension period be substituted as the appropriate penalty.

The Town objected and asked the Court to vacate the arbitrator's award. The Court denied the Town's application.

The Court said that "Court of Appeals cases teach that in order for a substantive contract provision to limit the remedial power of an arbitrator, it must be clearly incorporated by reference into the arbitration agreement." Finding that there was no such limitation in the controlling negotiated agreement, Justice Vito C. Caruso upheld the arbitrator's determination.

On another point, the Court said that the fact that the arbitrator may have applied the wrong legal standard in reviewing the discipline imposed is of no consequence. Citing Rochester City School District v Rochester Teachers Association, 41 NY2d 578, Justice Caruso said "the courts may not set aside an award because they feel that the arbitrator's interpretation disregards the apparent, or even the plain, meaning of the words or resulted from a misapplication of settled legal principles."

August 12, 1991

Exclusive unit work assignment



CSEA Erie County Local 815 filed improper practice charges against the County after the County reassigned supervisory duties being performed exclusively by unit members to non-unit personnel.

In making its determination, PERB made a number of observations regarding the factors it considers material in determining whether exclusive unit work has been improperly transferred or reassigned:

a. The nature of duties actually performed, not the duties which might  have been performed or could have been performed.

b. The frequency with which non-unit personnel were called up to perform exclusive work, because "occasional or incidental performance of unit work by nonunit personnel does not deprive unit employees of 'exclusivity.'"

c. Whether the performance of the same or similar duties by both unit and nonunit personnel "prevents any employees from having exclusivity over the work at issue." [In other words, if both groups perform essentially similar tasks, neither can claim "exclusivity."]

d. Whether there is a history that unit employees "had been solely responsible" for the work claimed to be "exclusive" for many years, because this is evidence of exclusivity.

PERB concluded that the County had violated §209-a.1 of the Act and provided the following relief:

a. The County was directed to restore the challenged duties to unit members.

b.  CSEA unit employees who lost wages or benefits as a result of the County's reassignment of duties to nonunit personnel were to be "made whole."

The decision, 30 PERB 3017 decided March 26, 1997, is posted on the Internet at:

January 3, 1991

Unlawful discrimination and genetic disorders

Unlawful discrimination and genetic disorders

 Chapter 990 of the Law of 1990, makes it unlawful for public or private employers to unlawfully discriminate against persons having a "unique genetic disorder." Under the Act, only Sickle Cell trait, Tay-Sachs disease and Cooley's anemia are defined as "unique genetic disorders."

 The Act, which amends the Civil Rights Law, provides as follows:

 §48-a Unless it can be clearly shown that a person's unique genetic disorder would prevent such a person from performing the particular job, no person who is otherwise qualified shall be denied equal opportunities to obtain and/or maintain employment and/or to advance in position in his [sic] job solely because said person has a unique genetic disorder regardless of whether the employer or prospective employer is the state or any political subdivision thereof or any other category of employer."

 The Act has criminal implications as an entity transgressing its provisions "shall be guilty of a violation."

January 2, 1991

INCLUDING INFORMATION SUCH AS A DRUG TEST RESULTS IN A PERSONNEL FILE


INCLUDING INFORMATION SUCH AS A DRUG TEST RESULTS IN A PERSONNEL FILE
Johnson v Martin, 6 IER 1329

Is the inclusion of a report of the results of a drug test  in an employee's personnel file defamatory? Johnson, a probationary police officer, alleged that although the results  of his positive drug test was not made public, there was a likelihood that such information would be divulged. This, he  argued, violated his "constitutional interest in a good reptation."

Noting that the information in the file had only been shared  within the police department's proper chain of command, the  court said that in order to constitute defamation, an allegedly defamatory statement must actually be made public.

Johnson's claim that the information "will probably" reach  the public was judged insufficient for the purposes of this  law suit.

Public Personnel Law E-books

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