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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.

July 29, 1992

Unlawful extensions of temporary appointments


Unlawful extensions of temporary appointments
Village of Nissequogue v Suffolk Co. CSC, 157 A.D.2d 784, 550 N.Y.S.2d 384 (1990), aff'd 77 N.Y.2d 915

 The Town of Nissequogue appointed two individuals to the position of "Acting Police Officer," one in 1982 and the second in 1984. In 1989 the Suffolk County Civil Service Department refused to recertify the payroll for these two individuals, both initially appointed pursuant to §64 of the Civil Service Law, on the grounds that they were illegally appointed. The Village objected, contending that the Commission could not withhold its certification in view of the provisions of §100.5 of the Civil Service Law.

 §100.5 provides that in the absence of fraud, an "employee having completed the applicable probationary period and holding a position in the classified service ... for at least three years shall be presumed to have duly appointed or promoted. After such time, neither the State Civil Service Commission nor a municipal commission shall withhold the certification of such employees on a payroll...."

 However, typically probationary period are mandated in connection with a permanent appointment although there may be instances where an appointing authority may require a temporary or provisional appointee to satisfactorily complete a probationary period as a condition of his or her continuation in service as a temporary or provisional employee. As the opinion notes, these officers "never completed the applicable probationary period because the probationary period could not commence until they had qualified for the position of police officer by examination and had been appointed to that position from an eligible list."

 The Court of Appeals affirmed the Appellate Division's ruling that "the appointments as 'Acting Police Officers' were not 'position[s] in the classified service of a civil service division by appointment or promotion" but rather unlawfully extended temporary appointments made pursuant to §64. It said that "§100.5 applies only to appointments made from an eligible list after successful completion of a civil service examination.

 Holding that the positions in question were in the competitive class, the Court said neither officer was appointed from an eligible list. Indicating that these individuals had been appointed as "acting police officers" by resolution of the Village Board and not from an eligible list, the Court ruled that "as temporary employees with unlawfully extended appointments who had not been appointed from an eligible list, they failed to meet the requirements of Civil Service Law 100(5)."

 Referring to Montero v Lum, 68 NY2d 253, among other cases, the Court indicated that "an unlawfully extended period of temporary service cannot ripen into a permanent appointment unless the appointee met all the requirements for permanent appointment at the time of the temporary appointment."*

A §64 temporary appointment may be made to fill a position without recourse to an eligible list under specified circumstances such for a period of less than three months; to fill the position when an employee is on a leave of absence [i.e., to fill an encumbered position]; when a position is not to be continued for more than a specified period of time or in anticipation of its abolishment; and for a number of other reasons, none of which appear to be present in this case.

On the other hand, a provisional appointment [see §65, Civil Service Law] is appropriate in order to fill a vacancy [i.e., an unencumbered position] in the competitive class in the absence of an eligible list. In any event, a provisional appointment is not to exceed nine months (§65.2).]

* Although the opinion refers to these as "temporary appointments," both of these appointments might be more accurately termed "provisional." 

July 28, 1992

Suspension without pay in disciplinary actions

Suspension without pay in disciplinary actions
Matter of Anonymous, 165 A.D.2d 201

Although §75 of the Civil Service Law is probably the statute most often relied upon in processing employee disciplinary actions, there are an number of other statutory disciplinary procedures that might be applicable in situations involving employees served with disciplinary charges. The Anonymous case considers the impact of different disciplinary procedures in connection with the suspension of an employee without pay following the service of disciplinary charges.

Anonymous, a police officer with the Village, was found guilty of charges filed against him and was dismissed from his position with the Village. He then sued claiming back pay for the period of his suspension without pay in excess of 30 days.

 The Court said that the viability of Anonymous' claim depends on whether the Rockland County Police Act [Chapter 524, Laws of 1936] or the provisions of §75 of the Civil Service Law and §8-804 of the Village Law govern the disciplinary action.

 Both §75 and §8-804 provide for suspensions without pay of not to exceed thirty days in connection with discipline. If the disciplinary procedure had not been completed within this thirty day period, the employee must be restored to the payroll. Possibly the only exception to this general rule is continuing the suspension without pay as part of an agreement to delay proceeding with the disciplinary action at the request of the employee against whom charges have be filed.

 In contrast, the Rockland County Police Act "specifically permits a police officer to be suspended without pay until the completion of the disciplinary procedure."

 Anonymous argued that the Rockland County Police Act was "implicitly repealed" in whole, or at least to the extent that it conflicts with §75 and §8-804. He further contended that 8-804 "governs the entire subject matter of the [Rockland County] Act."

 The Appellate Division rejected Anonymous' arguments. It said its analysis of the provisions of the Act indicated that the Rockland County Police Act "is controlling to the extent that the statutes conflict." It held that both §75 and §76 of the Civil Service Law contain limiting language such as "except as
otherwise provided by law." The Court ruled that "both as a 'special law' and a 'local law', the Act takes precedence over the Civil Service Law" as "a special statute that conflicts with a general act controls the case and repeals the general act insofar as the special statute applies."

 Anonymous also claimed that he was entitled to back pay from the time the trial was scheduled to begin until he was notified of his dismissal. The Appellate Division disagreed, indicating that the Act "clearly indicates that the outcome or disposition at trial is the end of the suspension."

 It appears that the only means of modifying the disciplinary procedures of a "local or special law" such as set out in the Rockland County Police Act is to seek its repeal or to negotiate an alternative disciplinary procedure pursuant to the Taylor Law.

July 20, 1992

Disciplinary arbitrations


Disciplinary arbitrations

 The general rule is that an arbitration is to be sustained if it does not violate strong public policy, is not totally irrational and if the arbitrator did not exceed a specifically enumerated limitation of his or her power. In this case the Supreme Court Justice ruled that the arbitrator's award did, indeed, violate public policy and vacated that portion of the arbitrator's award that reduced the penalty from dismissal to two months suspension without pay. The Appellate Division, 170 AD2 510, affirming the lower court's decision, said that "the arbitrator's determination that the penalty of discharge was inappropriate did violate the State's strong public policy of providing high quality, efficient and effective hospital services which meet generally accepted standards of professional medical practice," noting that this was not an isolated incident and that employee had continued to engage in this potentially life threatening conduct after he was repeatedly instructed to desist."

Selective certification and appointments from eligible lists


Selective certification and appointments from eligible lists
Ensley v NYC Department of Personnel, 170 A.D.2d 298

 In this case candidates on the "master list" for Supervisor I (Welfare) sued to require the City to make appointments to vacancies in the Child Welfare Service Division and the Protective Services for Adults Division from that eligible list instead of appointing provisional employees with certain casework or supervisory experience.  The notice of examination for Supervisor I (Welfare) stated that selective certification from the eligible list would be made to what the court referred to as Supervisor I "subtitles" in these two Divisions.  Only those meeting the additional requirement of one year of supervisory or caseworker experience in these areas were to be certified. Accordingly, a "master list" for the title was established, together with two separate lists, one for each Division's "subtitle."  The Appellate Division ruled that failing to use the "master list" clearly violated §61 of the Civil Service Law, noting that the statute authorizes provisional appointments to be made only in the event "there is no appropriate eligible list available for filling the vacancy...."  The decision also refers to the language in §61 providing that "appointments and promotions shall be made from the eligible list most nearly appropriate for the position to be filled." 


Benefits available to State and municipal officers and employees on military leave

Benefits available to State and municipal officers and employees on military leave

State or municipal employees who have been ordered to military duty may be laid off while on military leave. In such cases the provisions of §243.11 of the State's Military Law may be applicable.* §243.11 provides that if a position occupied by a public employee is abolished prior to the termination of his or her military service, the name of that individual is to be placed on a preferred list. Persons in the competitive class are to have their names placed on preferred lists pursuant to §81 of the Civil Service Law; other individuals may be entitled to preferred list rights under the Education Law. Persons not covered by the provisions of Sec. 243.11 may be entitled to have their names placed on a "military reemployment list" pursuant to §243.12 of the Military Law.

 In addition to these benefits, persons ordered to military duty whose name is on an eligible list retains his or her rights and status on such list. If the name of such a person becomes reachable for certification while on military duty, he or she may request that their name be placed on a "special eligible list." This request must be made following the termination of military service and during the period of the employee's eligibility on such list. Names are kept on the special military list for two years following the individual's termination of military duty [see §243.7, Military Law].

 §243 provides other special benefits to those called to military duty such as crediting such service for the purposes of probation [see §243.9 and §243.9-a], special consideration in cases of disability and age [see §243.10 and §243.10-a] and appointment to a vacancy while on the individual is on active military duty [see §243.6]. Still other rights available to employees returning to work following military duty are listed in §243.5 and §243.8.

* Public employees who volunteered for such military service are deemed to have been "ordered to military duty" for the purposes of §243 of the Military Law.

Equal pay for equal work

Equal pay for equal work

 A "Memorandum of Agreement between the Board of Education and the United Federation of Teachers modifying the compensation provisions of the collective bargaining contract for special education teachers of the severely handicapped. The Agreement was negotiated in response to Legislation mandating that educational instruction be offered certain handicapped students on a year round basis rather than on a ten month basis. The Appellate Division, 170 AD2d 194, held that "the test for determining the constitutionality of the salary differential is 'whether the challenged classification rests on grounds' wholly irrelevant to the achievement of valid state objective." In effect, the court concluded that "an agreement between the teachers' union and the Board of Education that modified a collective bargaining agreement so as to provide for increased wage rates and benefits only to certain special education teachers did not violate constitutional guarantees of equal protection because the salary differential met valid state objectives." In finding the Agreement valid, the Appellate Division indicated that "the classification ... distinguishes between those who normally teach the severely handicapped, as opposed to those who teach mildly or moderately handicapped children. The salary differential meets valid state objectives by encouraging those teachers with experience teaching the most profoundly handicapped to participate in the year round educational program."


Extending a probationary period may delay attaining tenure in a position


Extending a probationary period may delay attaining tenure in a position

 The Appellate Division [169 AD2d 868, appeal dismissed, lv denied, 77 NY2d 956] held that "leaves of absences, including maternity leave, may properly be excluded from the computation of the three-year probationary period which must be completed before tenure can be granted." This is consistent with decisions involving the extension of probationary periods in cases of absence involving a probationer [see, also, Matter of Mazur, 98 AD2d 974].  Such extensions of the probationary period may be applied in other situations as well. For example, when an employee injured on the job was given a "light duty assignment," the courts said that the appointing authority was not required to count the worker's "light duty service" for probationary purposes [Boyle v Koch, 68 NY2d 601]. In such cases the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of their satisfactory performance of "light duty."


Gender discrimination during interviews

Gender discrimination during interviews

 A woman being interviewed for a position of Director of the Madison County Veteran's Service Agency was asked questions concerning her plans for having children and her husband's reaction to the demands of the job over her objections. The interview was conducted by one Agency Board member in the presence of other members of the Board. The U.S. Court of Appeals, 2nd Circuit, [922 F.2d 139] upheld a federal district court decision awarding the applicant back pay and attorney fees on the basis of gender discrimination.

 It was held that the Board "discriminated in a group hiring decision." It was noted that no other candidate was asked these types of questions and that Babano's qualifications for the position were not discussed. The Court, however, ruled that "a further award of front pay ... was unnecessary."

 In another gender discrimination case, City of Buffalo v State Division of Human Rights, 562 NYS2d 1, it was determined that the City had unlawfully discriminated against women because of their sex by denying them seasonal employment in the Street Sanitation Department. However, the Appellate Division reduced an award of $10,000 to one of the claimants, Julia Remington, for humiliation and mental anguish. It said that $10,000 was excessive and not supported by the evidence but awarded her $5,000 as recommended by the Division's Administrative Law Judge.

Providing handicapped accessible public buildings for public meetings


Providing handicapped accessible public buildings for public meetings
Smith v Town of Warwick, 169 A.D.2d 976

 The question of holding public meetings at a handicapped accessible facility was the major issue in Smith.  Smith asked a Supreme Court justice to issue an order directing the Town to comply with §§74-a and 103 of the Public Officers Law by conducting future public meetings at a location other than the existing Town Hall facility and that the new location provide barrier-free access for the physically handicapped. Although the Town had attempted to provide a barrier-free access at its Town Hall, its efforts were inadequate for those required to use a wheelchair. §74-a mandates that such access for the physically handicapped be provided. The Appellate Division said that except for the ongoing but unsuccessful efforts to erect a new Town Hall, all that has been done to correct the problem is the installation of a temporary ramp and this was done only after the complaints [from Smith] were received."  It ruled that "[Smith] has demonstrated that [the Town has] not made the 'reasonable efforts' required by Public Officers Law §74-a and that he has a clear legal right to the relief granted [by the lower court]."

July 9, 1992

Taylor Law agreements and the Civil Service Law

Taylor Law agreements and the Civil Service Law
City of Newburgh v Potter, 168 A.D.2d 779

 A Taylor Agreement provided that a City firefighter who was offered a temporary or acting higher level position and who was on a Civil Service eligible list for such position shall be required to accept and perform the duties of the higher level position or "the employee shall remove his name from the Civil Service eligible list."

 The City sought a judgment declaring the contract provision valid notwithstanding the fact that §61.2 of the Civil Service Law [prohibition against out of title work] provides that "... except ... during ... a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position..."  The City won and Potter appealed. The Appellate Division reversed, concluding that the contract provision was not valid as a waiver of statutory rights and declared the contract provision void and of no force and effect.

 The Court said that while specific statutory authority not required for all of the terms and conditions incorporated into a collective bargaining agreement and the ability to bargain collectively with regard to the terms and conditions of employment is broad and generally unqualified, "the scope of such permitted and encouraged bargaining ... is limited by plain and clear prohibitions found in statute or decisional law and may be further restricted by considerations of objectively demonstrable public policy," citing Cheektowaga v Nyquist, 38 NY2d 137. The Appellate Division ruled that the contract provision was contrary to the clear requirements of §61.2 and affected applicant and employee rights reflective of the public policy of the State that vacancies be filled by permanent appointment from eligible lists.

Presumption of job relatedness of heart disease


Presumption of job relatedness of heart disease
Heuther, on behalf of Parina v Regan, 169 A.D.2d 907

 §363-a of the Retirement and Social Security Law provides that any impairment of the health caused by diseases of the heart that results in the disability or death of a police officer or firefighter shall be presumptive evidence that the death or disability was incurred in the performance of duty. This presumption, however, is not only "rebuttable" by "competent evidence;" it appears that the applicant is required to produce "expert medical proof" that he or she has a heart condition and to link that condition to his or her disability before §363-a becomes operative.

 The nature of the proof offered in support of such a service connected disability retirement application was the significant issue in Heuther.

Parina was a firefighter. The NYS Policemen's and Firemen's Retirement System denied his application for "duty disability retirement benefits" on the grounds that there was insufficient evidence of a disability resulting from heart disease so as to trigger the presumption set out in §363-a. Petitioner sued, arguing that the fact that Parina's "disability resulting from heart disease was established by [his] application for performance of duty retirement benefits... [and his] testimony at the hearing...."

 The Appellate Division denied the appeal. The Court said that despite Parina's testimony concerning a heart attack and related problems, there was no expert medical evidence confirming his heart condition or linking any such condition to his disability.

The Court held that it was not unreasonable to require an applicant such as Parina to provide expert medical proof in connection with his or her application for duty disability retirement benefits. In addition, the decision notes that the System's refusal to credit Parina's testimony concerning his heart condition in the absence of supporting medical evidence was rational.

 It appears that the absence of such medical evidence was viewed as fatal to Parina's claim by the Court. The decision indicates that "without any accepted proof of a heart disease causing disability, the presumption [contained in] Retirement and Social Security Law §363-a(1) was not available..." to an applicant for service connected disability retirement benefits.


Disciplinary probation


Disciplinary probation
Rodriguez v Ward, 169 AD2d 484

 An appointing authority may, from time to time, an appointing authority may suspend a disciplinary penalty of dismissal that it has imposed on an employee subject to the employee's satisfactory completion of a probationary period. In such cases the individual is usually subject to termination without any further disciplinary action being taken by the appointing authority if he or she fails meet the terms or conditions of the probationary period set by the appointing authority satisfactorily. The court's decision in Rodriguez supports the imposition of such a penalty. 

 Rodriguez, a New York City police officer, was charged and found guilty of "wrongfully and without just cause" pointing a revolver at [an individual] and threatening the [individual] while off-duty. The Commissioner found him guilty of the charges and imposed the penalty of dismissal. He then suspended the imposition of the penalty subject to Rodriguez satisfactorily completing a one year probationary period.

 The Appellate Division sustained the Commissioner's determination and the penalty imposed, holding that there was substantial evidence in the record to support the Commissioner's ruling. The opinion states that "the hearing officer expressly found [Rodriguez's] illogical and contradictory testimony to be incredible. As the duty of weighing the evidence and choosing between conflicting testimony rests solely with the administrative agency, [the court found] no reason to disturb the hearing officer's substantive findings or the penalty imposed."

Police and peace officers and off-duty employment

Police and peace officers and off-duty employment
Formal Opinions of the Attorney General, Opinion 90-F14

 The Chief Administrator of the Office of Court Administration was in the process of developing guidelines regulating off-duty employment by peace officers employed by the Unified CourtSystem. Concerned with the issue of liability, he asked the Attorney General for his opinion concerning the obligations of the State to defend and indemnify its peace officers who might be sued as the result of their exercising their peace officer powers during the course of their off-duty employment.

 Peace officers are empowered to perform a variety of law enforcement tasks while both on and off duty. §2.20(3) provides that a peace officer "who lawfully exercises any of the [peace officer] powers conferred upon him ... shall be deemed to be acting within the scope of his public employment for the purposes of defense and indemnification ... under §50-k of the General Municipal Law, §§17 and 18 of the Public Officers Law, or any other applicable Section of law."

 The Attorney General indicated that "peace officers who are privately employed while off-duty are not entitled to representation and indemnification under §2.20(3) of the Criminal Procedures Law unless their acts do not arise from theirresponsibilities to private employers, and are in all other respects a lawful exercise of peace officer powers. In other words, off-duty peace officers are eligible for the protections described in §2.20(3) in connection with the lawfully exercise their peace officer powers while off-duty provided they are not exercising those powers [subject to certain exceptions] in the course of their "private, off-duty" employment.

 In a similar situation, the Attorney General advised that subject to certain exceptions, "regional park-police officers, employed as security guards in State parks by private organizations or individuals, are not entitled to representation and indemnification by the State under §17 of the Public Officers Law" (1981 Opinions of the Attorney General 26).

 In another opinion, 1981 Opinions of the Attorney General (Informal) 173, it was indicated that although a police officer's powers and responsibilities to protect lives and property continues during his or her off-duty hours, §207-c of the General Municipal Law did not apply in connection with injuries incurred by a police officer in the course of protecting the interests of his private employer. As to the authority of an employer to restrict the use of weapons by off-duty peace officers, the Attorney General has indicated that it was his view that an employer may prohibit its peace officers from carrying weapons pursuant to rules that are not inconsistent with the duties of the particular police officer.

An Appellate Division ruling involving an employer's restricting the off-duty possession of a weapon by a peace officer is Salato v Tolman, 38 AD2d 991.

Dismissal as a penalty for a positive drug test


Dismissal as a penalty for a positive drug test
Trotta v Ward, 77 N.Y.2d 827

 Is dismissal too harsh a penalty to be imposed on a police officer if he or she tests positive for drugs? This was the major issue in the litigation that arose following the termination of a police officer by the Police Commissioner when the officer's urine tested positive for drugs. The Appellate Division had decided that dismissal was to harsh a penalty to be imposed on a police officer who had completed a substantial number of years of satisfactory service. The Commissioner appealed the ruling and won before the Court of Appeals.

 Overturning the Appellate Division's determination, the Court of Appeals said that the Commissioner's disciplinary decision should be reinstated. The Court of Appeals indicated that disciplinary determinations by the Police Commissioner are entitled to substantial deference "because he, and not the courts, is accountable to the public for the integrity of the department," citing Berenhaus v Ward, 70 NY2d 436.

 The Court of Appeals also held that the Commissioner's dismissal of a police officer for using illegal drugs is not so disproportionate to the offense as to be shocking to one's sense of fairness. This is the so-called Pell standard (Pell v Board of Education, 34 NY2d 222) that is frequently used by the courts in deciding if the disciplinary penalty imposed by an appointing authority is reasonable in view of the offense(s) for which the employee was found guilty.


Leaves of absence for military duty

Leaves of absence for military duty
Formal Opinions of the Attorney General 90F-13

 In response to an inquiry from the New York State Department of Civil Service concerning "entitlement to military leave benefits," the Attorney General said that Federal Law defines the leaves of absence from civilian employment for ordered military duty. The opinion refers to the decision in Durkee v City of Plattsburgh, 119 Misc2 955, where the court concluded that "Federal law controls the duration of the leave of absence to which an employee is entitled for military service." The question in Durkee concerned the authority of the employer to schedule an employee for work on the same day that the worker had also been ordered to perform military duty. The court decided that an employer may not schedule a person for any work during a calendar day when he or she also has been ordered to perform military duty or must travel in connection with such orders.

 The Attorney General said that it was his view that the Durkee decision "goes beyond the requirements of the Federal Statute." The Opinion indicates that "Federal law only establishes the right of an employee to be granted a leave of absence for such periods [of absence while engaged in and traveling to and from ordered military duty] and defines when the employee must report for work subsequent to military service."

 Earlier the Attorney General had indicated that 38 USC 2024(d) provided that employees need not report to his or her civilian job until the beginning of the next scheduled work period following release from military duty, with due consideration for travel [1976 Opinions of the Attorney General 130 (Informal)]. That opinion did not address the release of an employee for ordered military duty.

 Responding to the Department's question, the Attorney General advised that Federal law sets out employee rights to military leave and defines the time limits within which the employee must report to work following military service. He then suggested that "the statute should be construed so as to provide an employee with sufficient military leave to reasonably permit him [or her] to commence ordered military duty, taking into consideration relevant facts and circumstances."

 The Opinion also indicates that Federal Law defines the leave of absence from civilian employment to which an employee is entitled in connection with the performance of active duty or inactive duty for training in the Armed Forces of the United States

Noncompetitive examinations

Noncompetitive examinations
Connery v White, 164 AD2d 535

 Noncompetitive examinations for appointment to positions in the classified service are authorized in a number of situations. For example, §42 of the Civil Service Law mandates noncompetitive examinations for appointment to positions in the noncompetitive class. However, noncompetitive examinations may be authorized or required in connection with the filling of positions in the competitive class under certain circumstances as well.

 As an illustration of the filling of competitive class positions by noncompetitive examination, §65 provides that an individual may be appointed provisionally to fill a vacancy in the competitive class after qualifying for such appointment by noncompetitive examination. In addition, §52.7 authorizes the administration of a noncompetitive examination for promotion to a competitive class vacancy if certain conditions are satisfied. A noncompetitive examination authorized pursuant to §52.7 was the subject of litigation in Connery.

Essentially §52.7 allows an appointing authority to nominate an eligible employee for a noncompetitive promotion examination if there are three or fewer eligibles qualified or interested in appointment to the vacancy. Connery challenged the nomination of Robert Bentley, then serving as Assistant Director of Personnel A with the State Department of Transportation [DOT], for noncompetitive promotion to Director of Personnel A.

 The Department of Civil Service had determined that only Assistant Director of Personnel A and Director of Personnel B were "in the direct line of promotion" for the Director A title [see §52.1]. Bentley's noncompetitive promotion examination was authorized after Civil Service determined that "only three persons, including Bentley, held the position of Assistant Director of Personnel A" in the DOT. DOT did not have a Director of Personnel B position.

 Connery, then serving with DOT as an Agency Labor Relations Representative III, contended that it was practicable to have expanded the field of promotion to include more than three eligibles. He argued that previously he had been allowed to qualify for a promotion examination to Director of Personnel A on the basis of his having earlier held the Assistant Director of Personnel B title. He also claimed that his present title was a "personnel administration position" under a 1989 listing of administrative titles. This, he said, demonstrated the practicability of enlarging the list of qualifying titles thereby man-dating that the position be filled by competitive examination.

 The Appellate Division rejected Connery's arguments, holding that the Civil Service Department had a rational basis [the range and complexity of the personnel program and agency size] for applying §52.7, one of the statutory exceptions to the mandate for promotion by competitive examination and stringently defining the positions "in direct line of promotion" to the Assistant Director A and Director B titles. The Court said that "the decisional law ... is that the [Department's] fixing of the minimum requirements for admission to an examination is not to be interfered with by the courts if any fair argument can be made to sustain its action," citing Wirzberger v Watson, 305 NY 507.

 The decision also considers aspects of §52.6 of the Civil Service Law. §52.6 concerns the promotion and transfer of incumbents in "administrative positions" in the State service. Subdivision (c) of §52.6 allows transfers between State administrative positions in the same or related or collateral specialties and "which involve substantially equivalent tests or qualifications." §52.6 transfers, which are subject to conditions and limitations prescribed by the State Department of Civil Service, typically do not involve the transferee having to take an examination to qualify for permanent appointment to the title to which that individual is transferred.

 The Appellate Division concluded that although the Department could have included many titles, Connery's among them, in determining those titles qualifying incumbents for promotion to Director of Personnel A, the Civil Service Law did not compel the Department to do so. It said that as there was a rational basis for the Department's determination regarding the titles qualifying for the promotion, that determination must be upheld.

Part time service and seniority

Part time service and seniority
Cole v Syosset Central School District, 167 A.D.2d 538

 In a layoff situation, seniority is generally the single most important factor in determining retention rights. In Cole the Appellate Division considered the claim of a full-time school teacher-nurse for seniority credit.

 Syosset abolished one of its teacher-nurse positions. It then determined that Cole was the least senior employee in that tenure area. As a result Cole was laid off from her full-time teacher-nurse position. In determining seniority for the purposes of layoff, the District did not credit Cole's service in a "part-time" position.

 Cole had been assigned to a parochial school as a teacher-nurse. As the District's school day was seven hours while the parochial school's was six hours, Cole was viewed as a part-time [6/7ths] employee by Syosset. Cole received 6/7ths of a full time salary while she served at the parochial school.

 Cole, however, argued that as she had worked the "full parochial school day," six hours, her service should be deemed a de facto full-time position.

 The Appellate Division rejected Cole's argument, holding that the proper standard was the number of hours worked by full-time personnel with the District rather than the number of hours worked by full-time personnel at the parochial school.

 The Court said that "in the absence of a collective bargaining agreement, part-time service need not be credited in computing seniority credit." Noting that Cole had conceded that she worked only 6/7ths of the time worked by other school teacher-nurses in the District, the Appellate Division ruled that the District's actions had a rational basis and dismissed the appeal.

Layoff, arbitration and Taylor Law agreements


Layoff, arbitration and Taylor Law agreements
DePew Union Free School District v DePew Teachers Organization, 167 AD2d 907, appeal dism in part, den in part, 77 NY.2d 889

 Memoranda of Understanding between a school district and its teacher's union were ruled null and void because their provisions were held to contravene express terms of the Education Law.

 The Appellate Division said that an agreement that expanded statutory recall rights of teachers who had been laid off was inconsistent with the recall rights provided teachers by the §2510(3 of the Education Law and was thus void.

 In another ruling involving the same parties [see 562 NYS2d 274], the Appellate Division, Fourth Department, refused to require the submission of a question involving a memorandum of understanding to arbitration. It said that in order for the courts to direct arbitration in the field of public employment it must find that an agreement to arbitrate is "express, direct and unequivocal."

 The decision, relying on the South Colonie School District ruling by the Court of Appeals [46 NY2d 521], holds that the Teacher Organization's motion to compel arbitration was properly denied by the lower court because the Organization failed to cite any provision that could be deemed an agreement by the parties to arbitrate the issue.

Loss of teaching license

Loss of teaching license
Decisions of the Commissioner 12454

 It is well settled that where the law requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration or revocation of the license or permit means that the individual is no longer
authorized to perform the duties of the position by operation of law. Although such a person may continue to be "qualified" to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the
employee's immediate suspension without pay.

 The impact of the loss of a valid license to teach was the basic issue in the appeal submitted to the Brentwood Union Free School District to the Commissioner of Education. The District charged one of its teachers, who held a provisional certification to teach in her tenure area, with "failure to maintain proper certification."

 According to the Commissioner's decision, the teacher had experienced a number of personal difficulties that served to delay her studies towards the master's degree required for permanent certification. Once having completed the required course of study, however, she failed the comprehensive examination for her degree on two occasions.

 To complicate matters, the Education Department, in response to the teacher's November, 1989 request for an extension of her provisional certification, erroneously sent her a "notice of eligibility" in December, 1989, although her provisional certification had lapsed in September, 1989. In January, 1990 she was suspended without pay and the §3020-a charges were filed against her.

 In February, 1990 the teacher successfully completed all the requirements for her master's degree. However, she was now required to apply anew for permanent certification as she was now subject to new requirements for certification, including passing the National Teacher's examination [see 8 NYCRR 80.15].

 In May, 1990 the §3020-a hearing panel found the teacher guilty of "failure to maintain proper certification." It recommended that she be suspended without pay for one and one-half years, subject to dismissal if she failed to obtain permanent certification on or before September, 1991. The District appealed, claiming that the penalty imposed by the hearing panel was too lenient.

 The Commissioner denied the appeal. He said that "it is not necessary in all instances to authorize the termination of a teacher's services who fails to maintain certification." The purpose of a disciplinary hearing is to determine a teacher's fitness to carry out his or her professional responsibilities.

 Noting that there were significant mitigating circumstances in this teacher's case, the Commissioner said that he found no basis to conclude that the penalty of suspension imposed by the hearing panel was so disproportionate to the offense that he should set it aside and authorize a more severe penalty.

Layoff, preferred lists and reemployment rosters


Layoff, preferred lists and reemployment rosters
Pagano v New York State Civil Service Commission, 170 A.D.2d 733

When the State Department of Civil Service declined to certify preferred lists and reemployment rosters for appointment to certain titles, the Organization of New York State Management/Confidential Employees (OMCE) sued, challenging the Civil Service Commission's determination essentially upholding the Department's decision. 

 The Appellate Division found OMCE's argument that the Department improperly interpreted and applied Civil Service Law §81.1 too narrowly ... not persuasive." It concluded that the Commission's determination was rational and therefore must be sustained.

 It was indicated that "the determination of titles appropriate for preferred listings is 'based on a high degree of similarity of duties and responsibilities, minimum qualifications and examination requirements.'" Further, persons appointed from a preferred list are not required to undergo a probationary or training period and the appointing agency has no discretion [in selection] in making appointments.

Freedom of information and personnel privacy - obtaining an employee's medical history


Freedom of information and personnel privacy - obtaining an employee's medical history
Hanig v State Division of Motor Vehicles, 79 N.Y.2d 106

 From time to time a demand seeking the "medical history" of an employee is requested under the Freedom of Information Law. While such information is usually provided to the employee or his or her representative, what are the rights of a third party to such records?

 Hanig concerning disabilities contained in an application for a Motor Vehicle Operators license. In this case the Appellate Division, Third Department, sets out the test it would apply in determining if a State agency properly exercised its discretion with respect to "medical history" that, if disclosed, would constitute an
unwarranted invasion of personal privacy [Public Officers Law §87.2(b)]. The Court of Appeals ruled that the order of the Appellate Division should be affirmed.

 The Appellate Division said that it was not whether the information sought was compiled by medically qualified personnel or whether the information was a technical appraisal of a person's medical past but rather whether the information
constitutes medical history, the disclosure of which would be an unwarranted invasion of personal privacy. Presumably this includes information supplied by the applicant himself or herself or by any lay person that may be include in the individual's personal record.

 The Freedom of Information Law does not require that an agency bar the public's access to certain types of public records or certain material that may be contained in those records. It, instead, allows the agency to exercise its discretion with respect to refusing access to certain records, or portions of those records that would otherwise be available to the public under the Freedom of Information Law.

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

http://booklocker.com/books/7401.html


The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html


General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on

http://booklocker.com/books/3916.html


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