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N.B. §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 applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

July 30, 1998

Reopening an appeal to the Commissioner of Education


Reopening an appeal to the Commissioner of Education
Matter of Longwood CSD,  Ed. Comm. Decision 13714

In New York State the Commissioner of Education is empowered to reopen employment cases even if the time period allowed for appeals has expired.

8 NYCRR 275.16 provides that appeals to the Commissioner must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause. §276.8 of the Regulations of the Commissioner of Education provide for the discretionary reopening of an appeal by the Commissioner if the moving party can show that the (a) the earlier decision "was rendered under a misapprehension as to the facts" or (b) "that there is new and material evidence which was not available at the time the original decision was made."

The Commissioner's ruling in Longwood is instructive because it sets out a number of examples of excuses that the Commissioner will not accept as justification for reopening an  appeal that was dismissed because it was untimely filed. The following excuses were not considered "good cause" by the Commissioner: (1) the moving party alleges that it relied on incorrect legal advice and (2) the moving party offers an excuse for its delay not presented in its initial appeal because  a reopening cannot be used to augment previously undeveloped factual assertions or advance new legal arguments.

In contrast, the Commissioner noted  that he had considered an otherwise untimely appeal where it was shown that there was a good cause for the delay, the delay was minimal and important policy issues were at stake. Ruling that none of those circumstances were demonstrated by Longwood in support of its appeal, the Commissioner declined to reopen the matter.

The lesson here is that it is much more productive to file a timely appeal that to attempt to persuade the Commissioner that he should exercise his discretion and excuse the delay in filing the appeal.

Modifying an arbitration award


Modifying an arbitration award
TWU v NYC Transit Authority, 235 A.D.2d 427

In most challenges to an arbitration award, the prevailing party seeks to have the award confirmed while to other party attempts to have the award vacated.

The case of Transport Workers Union of America [TWU] v New York City Transit Authority [NYCTA] provides an example of a relatively rare variation of this: an attempt to modify an arbitration award.

In July 1993 NYCTA's Tripartite Arbitration Board issued an award reinstating an employee to his former position. About six months later the Board issued a supplemental award finding the employee entitled to back salary.

TWU petitioned the court to confirm both awards while NYCTA moved to vacate the supplemental award. The Court confirmed both awards and NYCTA appealed. NYCTA asked the Appellate Division to modify that portion of the award that granted the employee back salary.

The Appellate Division said that unless the parties agree, an arbitrator or an arbitration board "is without power to modify an original award except as provided in Civil Practice Law and Rules [CPLR] §7509." In such cases the award may be modified for any of the grounds set out in §7511(c) of the CPLR.

Noting that here the provisions of §7509 were not followed, the Court held that the Board's authority to modify its original award depended on whether NYCTA (1) had agreed to resubmit the matter to the Board, (2) had acquiesced in the manner in which it was submitted and (3) had an opportunity to be heard. If all three were satisfied, that NYCTA had no basis for seeking to vacate the supplemental award and it should be confirmed. As these three elements were not set out in the motions before the Appellate Division, it said that a hearing would have to be conducted to determine if the three conditions required to bind NYCTA to the Board's supplemental award were satisfied.

Letter of reprimand


Letter of reprimand
Hoffman v Village of Sidney, 252 AD2d 844

Edward F. Hoffman, Jr. a police officer with the Village of Sidney, commenced two actions against the Village. The first involved a letter of reprimand and the second involved a suspension.

In the first action Hoffman complained that the Commissioner of Police violated §75 of the Civil Service Law when a "Letter of Reprimand" was placed in his file without first holding a disciplinary hearing. (One of the enumerated penalties set out in §75 is a reprimand.) The reprimand resulted from Hoffman's alleged inattention to duty on August 13, 1994 which resulted in damage to a police vehicle.

The Appellate Division noted that not every letter of reprimand is a "disciplinary penalty." The Appellate Division said that the letter involving Hoffman amounted to no more than "a critical admonition and [was] not so formal as to trigger the hearing requirement of Civil Service Law §75."

The letter, the Court noted, was written by Hoffman's immediate supervisor and the Village was neither involved in its being issued nor was provided with a copy of the letter. Despite the fact that it was designated as a "letter of reprimand," the Appellate Division decided that "it clearly falls far short of the sort of formal reprimand contemplated by the statute."

The implication here is that because the appointing authority [the Village] was not involved, Hoffman's supervisor's action did not constitute "discipline" within the meaning of §75.

In the second complaint, Hoffman asked the Court to review the Village's decision to suspend him for 60 days without pay following his being found guilty of charges in a §75 hearing. Hoffman had been found guilty of four of five charges filed against him following his involvement in an automobile accident on January 8, 1995.

The Village declined the follow the hearing officer's recommendation that Hoffman be terminated and suspended him for 60 days without pay instead. This suspension was in addition to its suspending Hoffman for 30 days without pay pending the disciplinary hearing. The Appellate Division affirmed, deciding that the hearing officer's findings were supported by substantial evidence.

As to the Hoffman's suspension without pay, the Court said that "the reduced penalty imposed by [the Village] was within the statutorily permissible range and ... was not so disproportionate as to be shocking to one's sense of fairness, thereby meeting the Pell standard [Pell v Board of Education, 34 NY2d 222].

Finally, the Court addressed Hoffman's contention that the Village Law limited "the suspension of a disciplined officer to 20 days." The Appellate Division pointed out that his claim was misplaced because:

Under the terms of the Taylor Law agreement between the Village and Hoffman's union, disciplinary action is to be administered pursuant to the provisions of Civil Service Law §75.*

§75 provides that an employee may be suspended without pay for up to 30 days pending a disciplinary hearing and, further, authorizes the appointing authority to impose a penalty of a suspension without pay "not to exceed two months" if he or she if found guilty of the charges.

* Why didn't the Village Law control in this instance? Because the collective bargaining agreement provided that disciplinary actions filed against employees would be processed pursuant to §75 of the Civil Service Law. It is now well settled that an employee organization may negotiate a due process alternative to a statutory disciplinary procedure, as well as set out or modify the penalties to be imposed in a disciplinary action, pursuant to the Taylor Law.

Leaves from "hold positions"


Leaves from "hold positions"
Dworkin v Dept of Envir. Conser., 229 A.D.2d 42

New York State permanent competitive class employees who are appointed or promoted to an exempt class position in their own agency or another  department or agency should verify their leave status. Such employees may erroneously believe that they are protected in the event of termination because they have a "hold item." As the Dworkin decision demonstrates, their claim to a "hold position" may be illusory!

A "hold position" or "hold item" refers to a situation in which the individual expects to be able to return to his or her former competitive class position if his or her services in the exempt class position are discontinued. The Dworkin decision provides insights into the intricacies of establishing the employee's right to return to his or her former position.

Rules of the State Civil Service Commission authorize the appointing authority to grant a competitive class employee a leave of absence without pay, not to exceed two years [4 NYCRR 5.2(b)]. An additional extension, not to exceed two more years, may be granted with the approval of the State Civil Service Commission. Continuation of such leave beyond four years may be approved by the Commission "for good cause shown." The lesson of the Dworkin case is that the failure to obtain the Commission's approval for extending a leave is fatal to an individual's right to be reinstated to his or her "hold position."*

* A State employee may request a leave of absence without pay in connection with pregnancy or childbirth. The appointing authority is authorized to grant such leave, not to exceed a period of two years. Continuation of such leave status beyond two years is subject to the approval of the State Civil Service Commission [4 NYCRR 29.1]. Presumably the courts would apply the rationale of the Dworkin decision in §29.1 cases as well.

As the Appellate Division notes in its ruling in Dworkin, there is a regular practice of giving employees "promoted to an exempt class position from a competitive class position ... a discretionary leave of absence from the competitive class position while he or she serves in the exempt position." It seems, however, that "... State agencies ... routinely ignored the requirement of Civil Service Commission approval of extensions" of such leaves.

Carl G. Dworkin was appointed as a permanent Senior Attorney with the Department of Environmental Conservation [DEC] in 1978. DEC promoted him to the exempt class position of Assistant Counsel in 1979. He continued to serve in the Assistant Counsel position until February 1995, when he was terminated. Claiming that he had a "hold position" as a senior attorney, Dworkin sued when DEC refused to reinstate him. He asked the court for an order directing DEC to reinstate him as a Senior Attorney.

The Appellate Division affirmed a Supreme Court ruling dismissing Dworkin's petition. The Court ruled that Dworkin lost his hold position because his leave was never extended by the State Civil Service Commission. According to the decision:

 Despite the absence of any formal determination by DEC, [Dworkin's] hold on the Senior Attorney position expired at the end of the two-year maximum period prescribed by 4 NYCRR 5.2(b) because DEC did not obtain Civil Service Commission approval for an extension.

Notwithstanding the fact that DEC "continued to reflect the existence of the hold long after it expired," the Appellate Division said that there is no authority in either the Civil Service Law or the regulations for the retroactive restoration of a hold that has expired.

One of Dworkin's allegations was that there was authority to approve such leave retroactively and that DEC was arbitrary in not seeking such retroactive approval for him. While the other litigants agreed that such retroactive approval was authorized, as noted above the Appellate Division rejected that contention, holding that retroactive approval was not authorized by law, rule or regulation.

Although, said the Court, Dworkin "was misled" by DEC's action regarding his "hold item" and that "DEC and perhaps other State agencies, including the Civil Service Commission routinely ignore the [Rule's] clear limitations," this did not entitle him to any relief.

The key elements to keep in mind in situations involving a "hold position" are:

1. Any leave approved by a department automatically expires on the date specified by the department or two years after it took effect, whichever first occurs.

2. The employer must request, and the State Civil Service Commission must approve, any extensions of such leaves beyond two years or the individual will lose his or her right to return to the "hold position."

3. The State Civil Service Commission cannot approve the extension of a leave for the purpose of providing "hold position" rights retroactively.

4. A "hold position" becomes vacant for the purpose of making a permanent appointment if the individual does not return to it when his or her "department approved leave" expires unless the State Civil Service Commission approves an extension of the leave.

5. If a "hold position" is filled on a contingent permanent basis, the incumbent will be entitled to all the rights provided by law upon the position becoming vacant.

Does the automatic loss of a "hold position" when the leave expires violate due process or adversely impact of the individual's "property interest" in the position?  This was another key issue raised in the Dworkin case. The Appellate Division decided that 4 NYCRR 5.2 was not intended to create "a permanent right to fall back" to a competitive class position. Accordingly, the Court concluded, Dworkin "had nothing more than a unilateral expectation with regard to the bestowal and continuation of the hold" or any extension of his leave and, therefore, his due process claims were meritless.

* A State employee may request a leave of absence without pay in connection with pregnancy or childbirth. The appointing authority is authorized to grant such leave, not to exceed a period of two years. Continuation of such leave status beyond two years is subject to the approval of the State Civil Service Commission [4 NYCRR 29.1]. Presumably the courts would apply the rationale of the Dworkin decision in §29.1 cases as well.

The full opinion follows:

Matter of Carl G. Dworkin, Ap, v. NYS Department of Environmental Conservation, et al., Res. Decided Jan. 16, 1997. Before Mercure, J.P.; Crew III, Casey, Paters and Carpinello, J.J.

APPEAL from a judgment of the Supreme Court (Teresi, J.), entered Dec. 12, 1995 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, inter alia, review a determination of respondent Department of Environmental Conservation denying petitioner's request to be reinstated to his position as a Senior Attorney and/or Associate Attorney.

Hinman, Straub, Pigors & Manning P.C. (John R. Saccocio of counsel), Albany, for appellant.

Dennis C. Vacco, Attorney-General (Michael Buskus of counsel), Albany, for respondents.

CASEY, J. -- Petitioner received a permanent appointment in September 1978 as a Senior Attorney with respondent Department of Environmental Conservation (hereinafter DEC), a competitive class position subject to the protections of Civil Service Law §75. In December 1979, petitioner was promoted to the position of Assistant Counsel, an exempt position under Civil Service Law §41. Petitioner was terminated from his Assistant Counsel position in February 1995. He thereafter commenced this proceeding which raises the issue of petitioner's rights with regard to the Senior Attorney position from which he was promoted in 1979.

Pursuant to 4 NYCRR 5.2 (b), a permanent employee in the classified service "may, in the discretion of the appointing authority, be granted a leave of absence from his position, without pay, for a period not exceeding two years" (see also, 4 NYCRR 29.1 [a]). A two-year extension may be granted with the approval of the Civil Service Commission, and a further extension may be permitted by the Commission for good cause shown (see 4 NYCRR 5.2 [b]; 29.1 [a]). The record establishes the existence of a regular practice in State civil service whereby an employee promoted to an exempt class position from a competitive class position is granted a discretionary leave of absence from the competitive class position while he or she serves in the exempt position. There is evidence in the record that State agencies, including DEC, routinely ignored the requirement of Civil Service Commission approval of extensions. An employee who has been granted such a discretionary leave of absence, upon promotion to an exempt class position, is said to have a "hold" on the competitive class position from which he or she was promoted.

Petitioner contends that he was given a discretionary leave of absence or hold for the Senior Attorney position when he was promoted to the Assistant Counsel position. DEC alleges that petitioner was afforded only the mandatory leave of absence from the competitive class position (see 4 NYCRR 4.10) which expired in 1981 when the probationary term for his Assistant Counsel position was completed, and he was never granted a discretionary leave of absence or hold. There is, however, abundant, undisputed evidence in the record that DEC considered petitioner to be on leave from the Senior Attorney position long after the expiration of the mandatory leave period.

The evidence includes a 1984 memorandum from DEC's Director of Personnel to DEC's Commissioner, which discussed petitioner and other DEC employees in exempt positions who were considered to be on leave from competitive class positions; a 1988 memorandum from DEC's General Counsel, which requested petitioner to resign from his Senior Attorney position; and DEC's approval in 1989 of petitioner's request to sit for a promotional examination for the position of Associate Attorney, for which he was eligible only if he was on leave from the Senior Attorney position.

In early February 1995 petitioner learned that he would be terminated from his Assistant Counsel position. He requested that he be returned to a competitive class position and that DEC take the necessary steps to restore his rights to a competitive class position. Petitioner's employment was terminated effective Feb. 17, 1995 and he was informed that he had no hold on an Associate Attorney or Senior Attorney position. Petitioner commenced this proceeding June 2, 1995. Supreme Court dismissed the petition on the merits, resulting in this appeal by petitioner.

We begin our analysis by noting that petitioner claims no right to continued employment in the exempt Assistant Counsel position. Rather, petitioner seeks reinstatement to a competitive class position. We agree with respondents that petitioner's 1990 appointment to the competitive class Associate Attorney position was never effective and, therefore, he has no rights to that position. The record establishes that the General Counsel's "appointment" of petitioner was in fact a recommendation that petitioner be appointed, requiring final approval of DEC's Director of Personnel, which was never given. Because the appointment to the Associate Attorney position was ineffective, however, none of the actions taken on the basis of that appointment can, in our view, affect petitioner's rights regarding the Senior Attorney position. Accordingly, the remainder of this decision will focus on petitioner's rights regarding the Senior Attorney position.

Respondents contend that Supreme Court's judgment should be affirmed on the basis of the Statute of Limitations defense asserted in the answer.

According to respondents, the four-month Statute of Limitations began to run no later than October 1988 when petitioner was informed in writing that his hold on the Senior Attorney position had "lapsed." The argument is meritless.

A determination is final and binding for the purposes of commencing the four-month limitations period of CPLR 217 when it has its impact upon the petitioner who is thereby aggrieved (see Matter of Biondo v. State Bd. of Parole, 60 NY2d 832, 834; Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352, 357). Finality does not occur until the administrative agency has arrived at a definitive position on the issue that inflicts actual concrete injury (see Matter of Ward v. Bennett, 79 NY2d 394, 400). The record is patently inconsistent with respondents' claim that DEC made a final determination in 1988 which adversely affected petitioner's hold on the Senior Attorney position. More than a year later DEC approved petitioner's application to sit for a promotional examination for which he was eligible only if he was actually on a leave of absence from the Senior Attorney position. We agree with respondents that DEC's approval of petitioner's application had no estoppel effect, but it is clearly sufficient to negate respondents' claim that DEC made a formal, explicit and unambiguous determination in October 1988. The October 1988 memorandum to petitioner is ambiguous, for it clearly implies that petitioner's hold on the Senior Attorney position continued despite its technical lapse and that petitioner's resignation from the Senior Attorney position was necessary to release the hold. Such an ambiguous writing is insufficient to commence the statutory period (see e.g., Matter of Chaban v. Board of Educ. of City of N.Y., 201 AD2d 646).

Turning to the merits, we note our disagreement with Supreme Court's conclusion that a de facto resignation can be inferred from petitioner's lack of response to the October 1988 memorandum which requested petitioner's resignation from the Senior Attorney position. The memorandum did not require a formal written response and there is undisputed evidence in the record that petitioner told the author of the memorandum that he would not execute the requested resignation and would rather give up his Assistant Counsel position than his hold on the Senior Attorney position. There is simply no evidence of any de facto resignation and respondents have not pursued such a claim on appeal.

Petitioner contends that the removal of his hold on the Senior Attorney deprived him of a property right without notice in violation of due process. We disagree. Petitioner bases his claim of a protectable property interest on the provisions of Civil Service Law §75. Petitioner was clearly covered by those provisions while he served in the competitive class Senior Attorney position after completion of the probationary period, and we have no quarrel with petitioner's claim that the statutory coverage extended to him while he was on leave of absence from the Senior Attorney position (see Cooperman v. Commissioner, Dept. of Correctional Servs., 86 Misc 2d 610, affd 57 AD2d 989). We do not believe, however, that petitioner had a corresponding legally protectable interest in the initial granting of the hold or any extension thereof.

It is the general rule that when an administrative agency has been given significant discretionary authority over the bestowal or continuation of a governmental benefit, rarely will the recipient be able to establish a property interest in that benefit (see Matter of Niagara Mohawk Power Corp. v. New York State Dept. of Transp., __ AD2d __ , __ , 637 NYS2d 505, 507, appeal dismissed 87 NY2d 1054, lv denied 88 NY2d 809). The record establishes that the appointing agency, in this case DEC, has the discretionary authority to grant the hold in the first place and to obtain extensions thereof (see 4 NYCRR 5.2 [b]). It is clear from the relevant regulatory provision that holds are granted and extended only in the exercise of discretion and for a limited time. The regulations were not intended to create a permanent right to fall back to the competitive class position which would last as long as the employee serves in an exempt class position. In these circumstances, we are of the view that petitioner had nothing more than a unilateral expectation with regard to the bestowal and continuation of the hold and, therefore, petitioner's due process claim has no merit.

Inasmuch as DEC has discretionary authority over the bestowal and continuation of holds, its exercise of that authority is subject to a proceeding in the nature of mandamus to review, in which the standard of review is whether the agency's determination was arbitrary and capricious or affected by an error of law (see Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758). As the record contains no formal, explicit and unambiguous determination by DEC not to grant a hold or not to continue the hold that clearly existed, we must look elsewhere for the final determination. Petitioner contends that even if the hold technically lapsed or expired due to DEC's inaction, DEC had the authority to obtain retroactive restoration of petitioner's hold on the Senior Attorney position and refused to exercise that authority when it terminated petitioner's appointment to the exempt Assistant Counsel position, thereby resulting in the termination of petitioner's employment. DEC concedes that it had the authority to obtain retroactive restoration of the hold and that it refused to do so. We are of the view that DEC's refusal, finalized by the termination of petitioner's employment, is the final determination subject to judicial review in this proceeding.

Despite the absence of any formal determination by DEC, petitioner's hold on the Senior Attorney position expired at the end of the two-year maximum period prescribed by 4 NYCRR 5.2 (b) because DEC did not obtain Civil Service Commission approval for an extension. That DEC's actions continued to reflect the existence of the hold long after it expired precludes respondents from succeeding on their Statute of Limitations defense, but it cannot alter the fact that the hold actually expired due to DEC's failure to obtain Civil Service Commission approval. Contrary to the position taken by all parties, we find no authority in either the Civil Service Law or the regulations for the retroactive restoration of a hold that has expired. In effect, a request for retroactive restoration of an expired hold seeks another leave of absence after the expiration of the original one.

Successive leaves of absence in the classified service are governed by 4 NYCRR 5.2 (c), which provides that "[w]here a leave of absence without pay has been granted for a period which aggregates two years, or more if extended a further leave of absence without pay shall not be granted unless the employee returns to his position and serves continuously therein for six months immediately preceding the subsequent leave of absence." When petitioner sought retroactive relief shortly before the termination of his employment in the Assistant Counsel position, petitioner had not served in a competitive class position for 15 years. There is evidence in the record that a "hiring freeze" was in place and there is no evidence that a competitive class position was vacant and available for petitioner. In these circumstances, we cannot say that DEC's failure to exercise its discretionary authority pursuant to 4 NYCRR 5.2 (c) was arbitrary and capricious. As petitioner's hold on the Senior Attorney position expired prior to 1989, we also find nothing arbitrary and capricious in the removal of petitioner's name from the Associate Attorney eligible list because he was not eligible to take the promotional examination for that position.

The record plainly establishes that petitioner was misled regarding the continued existence of his hold by the words and actions of DEC officials. The record also suggests that DEC and perhaps other State agencies, including the Civil Service Commission, routinely ignored the clear limitations in the regulations governing discretionary leaves of absence to create a system of long-lasting holds that is not within the intent of the Civil Service Law. Nevertheless, for the reasons set forth above, we conclude that petitioner is not entitled to any relief.

All concur.

ORDERED that the judgment is affirmed, without costs.

Random drug testing


Random drug testing
Award by Arbitrator Jerome Thier

A Taylor Law agreement between a school district and the union provided for random drug testing of bus drivers. A driver who tested positive or who refused to submit to a random test, was to be immediately removed from his/her position. After reviewing the provisions of the agreement in its entirety, an arbitrator found that removal did not mean automatic termination.

The case involved a school bus driver who tested positive for marijuana. The District's director of staffing services recommended that the School Board terminate the driver's employment because the driver "engaged in a health, safety and welfare violation in the transportation of children and that there was a zero tolerance level for this conduct."

The school board accepted the recommendation and terminated the driver. As a result of this action, the union filed a grievance contending that the District had violated the terms of the collective bargaining agreement and demanded arbitration.

Arbitrator Jerome Thier found a distinction between "removal" and "termination" was clearly implied in the agreement because it detailed a means by which a bus driver could return to work after being "removed." The agreement said that "before a driver is allowed to return to the duty of performing a safety-sensitive function ... that employee must first be evaluated by a Substance Abuse Professional [SAP] and pass a return to duty test." The agreement also provided that a driver who tested positive for drugs could return to work "if, after being evaluated by a SAP, and satisfying any referral, evaluation and treatment program prescribed by the SAP, he or she tests negative on another drug test."

Thier decided that the District had violated the terms of the agreement and directed that the driver be reinstated to the position "without back pay as soon as possible, provided [the employee] tests negative for drugs." He also directed that the employee be subjected to "follow-up drug testing procedures" as set out in the collective bargaining agreement.

While recognizing "the District's admirable desire to have a totally drug free staff of bus drivers," Thier said that "this must be accomplished within the framework of the parties' agreements."

Editor's note: The agreement also provided that a bus driver who tested positive "will be subject to disciplinary action, up to and including discharge...." §47.C of the agreement sets out the standards to be followed in proceeding with disciplinary actions. Apparently the employee was not served with disciplinary charges seeking termination pursuant to §47.C.4 the agreement.


Disciplinary held action in absentia when the appointing authority fails to appear


Disciplinary held action in absentia when the appointing authority fails to appear
Hall v Environmental Conservation, 235 AD2d 757

Sometimes an employee served with a notice of disciplinary action refuses to participate in the proceeding or does not appear at the hearing. Courts have held that the employer may proceed with the disciplinary action even though  the employee is not present. The employee may be disciplined in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.

The Hall case concerns a much more unusual situation in which representatives of the appointing authority intentionally do not appear at a disciplinary arbitration. The Appellate Division ruled that under such circumstances, the arbitrator may proceed with the arbitration hearing in absentia of the appointing authority and make a final, binding determination.*

The case arose after Robert L. Hall was served with a notice of discipline by his employer, the State Department of Environmental Conservation [DEC]. His union, the Public Employees Federation [PEF] filed a disciplinary grievance and a demand for arbitration.

In March 1994, after 10 days of hearing before the arbitrator, DEC advised PEF and the arbitrator that "the ongoing arbitration proceeding had been rendered moot because the Department of Civil Service had disqualified [Hall] from his civil service position." Hall's disqualification for the position was not related to the charges of misconduct filed against him.

PEF argued the unless the "notice of discipline" was withdrawn by DEC, the arbitration proceeding could not be deemed moot. The arbitrator agreed with PEF and said that the arbitration would proceed. DEC, however, neither withdrew the notice of discipline nor participated in the final day of hearing, held on July 19, 1994.

Ultimately the arbitrator issued a determination holding that DEC "failed to prove by a preponderance of the evidence any of the allegations in the notice of discipline." The award directed DEC to reinstate Hall with back pay effective as of the date of his suspension, November 19, 1992.

Although not addressed in the opinion, presumably the award of back pay would run from November 19, 1992, the date on which Hall was suspended, through the effective date of Hall's disqualification by the Department of Civil Service.

A Supreme Court judge granted PEF's motion to confirm that portion of the award providing for back pay, holding that the disciplinary proceeding was not rendered moot by the Civil Service Department's action. The Court refused to confirm that part of the award that directed DEC reinstate Hall to his former position, however. DEC appealed the decision.

The Appellate Division affirmed the lower court's ruling, holding that "an arbitration award may not be vacated unless it violates a strong and substantial public policy, is irrational or clearly exceeds a specific limitation on the arbitrator's powers." The Court said that in Hall's case DEC failed to demonstrated that award should be vacated for any of these reasons.

One of the arguments made by DEC in support of its decision not to continue to prosecute the disciplinary action was that Hall's disqualification meant that his appointment was void from the start - i.e., he never had a valid appointment, and he therefore could not claim any rights under §75 of the Civil Service Law or the collective bargaining agreement. Many Taylor Law agreements provide that an employee's right to the "contract disciplinary procedure" is triggered by his or her being a person otherwise protected by §75 of the Civil Service Law or a similar due process procedure.

The Appellate Division rejected this argument. It said that "an employer cannot extinguish an employee's rights under a collective bargaining agreement by simply terminating the employment," citing Baker v West Irondequoit Central School District, 70 NY2d 314.

The Appellate Division commented that "DEC was not compelled to disqualify [Hall]; it chose to do so."**

The ruling in Hall suggests an interesting administrative issue for state employers. Although not reflected in the opinion, the reason for Hall's separation has probably been officially reported as a "disqualification." But what term would be used to officially describe his separation had the arbitrator found him guilty of the charges DEC filed against him?

It could be argued that the separation could be reflected in his personnel record as a termination for cause, as would be the case where  an employee submits his or her resignation rather than face disciplinary charges.

The State Civil Service Commission's Rules for the classified service [4 NYCRR 5.3(b)], which applies only to State officers and employees, provides that "where charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard [the resignation] and prosecute such charges."

If the employee is found guilty of such charges and dismissed from the service, the Rules provide that his or her termination shall be recorded as a dismissal rather than as a resignation.

What is the significance of having the employee's separation "recorded as a dismissal?" An individual who fails to disclose his or her disciplinary dismissal when applying for employment with the State or a political subdivision of the State, would be undoubtedly be held to have falsified the application form and could be disqualified for the appointment for that reason.

The obvious conclusion is that failure to proceed with a disciplinary action because there is some other basis for separating the employee is not the best way to handle the situation.

Consider the case of another appointing authority that decided not to proceed with a disciplinary action against a certain employee who was laid off, even though the individual had already been served with charges. The individual's name was placed on a preferred list. The employee had to be reinstated when the employer decided it was necessary to fill the vacancy while his name remained on the list.

* The ruling addresses the specific case of an arbitration. In an administrative proceeding such as a §75 disciplinary action, which is controlled by the employer, if the appointing authority refuses to proceed with the hearing and does not withdraw the charges, the employee could probably obtain a court order directing the appointing authority to either proceed or withdraw the charges.

** Technically the court's statement is inaccurate, or at least poorly worded. Although an appointing authority, here DEC, may initiate a §50.4 disqualification proceeding, in this instance the New York State Department of Civil Service was vested with the exclusive authority to disqualify Hall for one or more of the reasons set forth in §50.2. The employee must be given an opportunity to oppose such disqualification by Civil Service. In a political subdivision of the State, the municipal commission having jurisdiction is authorized to disqualify individuals pursuant to §50.4


Disability benefits and light duty

Disability benefits and light duty
Paeno v McCall, 235 A.D.2d 766

Sometimes an individual who claims he or she is disabled is assigned light duty work only to later claim he or she cannot perform the light duty assignment as well. The employee then seeks disability retirement and related benefits. The Paeno decision illustrates the fact that lack of proof of disability or conflicting medical opinion on the degree of disability can justify a decision to deny retirement benefits.

In December 1990 firefighter Joseph J. Paeno was injured while clearing snow at the fire station where he worked. He was operating a "miniloader" at the time. Paeno was able to continue working immediately following the incident. The following May Paeno underwent surgery in connection with an unrelated problem. Following a period of recuperation, he was ordered back to work but left after working about 2 1/2 hours. Paeno was ordered back to work about a year later and assigned to light duty.

In October Paeno applied for accidental disability and performance of duty benefits, claiming that he was disabled as a result of the 1990 accident. He retired in November 1992, stating that he was unable to perform his light duty assignments. When both applications were rejected, Paeno appealed the Comptroller's determination denying his application for disability retirement benefits.

The Appellate Division affirmed the Comptroller's ruling, commenting that Paeno "failed to sustain his burden of proving that he was permanently incapacitated from performing his job duties or that his injuries were the proximate cause of his present complaint."

As to medical evidence of any disability, the Court said that only one of the four physicians who testified said that there was objective medical evidence of Paeno's disability. The Comptroller could evaluate conflicting medical evidence and he was free to accept one physician's opinion over that of another's.

The only evidence concerning Paeno's ability to perform light duty was Paeno's own testimony that "he could not perform the light duty assignments. The Appellate Division said that the Comptroller was not required to determine whether Paeno was physically incapacitated from performing his normal duties. All the Comptroller was free to, and did, correctly determine that the evidence failed to establish that Paeno could not perform his "light duty assignments."

Other cases recently decided by the Appellate Division involving the burden of proof placed on the individual seeking disability retirement benefits include Greene v McCall and McGarry v McCall.

In the Greene case, the Comptroller denied Michelle Greene application for ordinary and accidental disability retirement benefits. The Court agreed that Greene failed to sustain her burden of proving she was permanently incapacitated from performing her duties when the Comptroller accepted the opinion of one medical expert witness over another.

Similarly, the Court sustained the Comptrollers rejection of Suffolk County police officer James K. McGarry's claim that he was permanently incapacitated from performing his duties as a result of his patrol car being rear-ended by another vehicle in 1979. Here the Comptroller credited the testimony by an orthopedic surgeon that McGarry did not sustain a disabling injury as a result of the accident. This, the surgeon stated, was demonstrated by the fact that McGarry continued to perform the full duties of his position during the years following the accident.


July 29, 1998

Qualification for office

Qualification for office
Reeves v County of Onondaga, 89 N.Y.2d 901

The New York State Court of Appeals ruled that if an individual is qualified to be appointed to the board of directors of the Central New York Regional Market Authority at the time of appointment, he or she may continue in that position even if he or she does not meet the qualifications at a later date.

§827 of the Public Authorities Law mandates that two members of the three-person board "must be persons engaged in farming who derive a greater part of their income therefrom and who actually sell all or part of their produce on the [Central New York Regional] Market." Timothy D. Reeves sued the Onondaga County Legislature contending that a "farmer-producer" member of the Authority had retired from farming and therefore could no longer serve in that capacity.

The Court of Appeals disagreed, noting that if the farmer-producer members of the Authority were qualified persons at the time of appointment, nothing in §827 required the individual to be terminated "upon a change in his [or her] status as a farmer-producer."

Line-of-duty injury lawsuits

Line-of-duty injury lawsuits
Sweeney v City of New York, NYS Supreme Court, Not selected for publication in the Official Reports

Michael Sweeney, a New York City police officer, slipped and fell on a Manhattan sidewalk while chasing a suspect. The decision in a lawsuit Sweeney filed is one of first rulings made under the recently expanded rights of police officers and firefighters to sue for line-of-duty injuries pursuant to General Obligations Law §11-106 (1).

 At the time of Sweeney's fall, the sidewalk was covered with ice and snow. Sweeney sued both the City and the property owner for common law negligence. His wife, Stephanie Sweeney, sued the City and the property owner for loss of consortium - the loss of the ability to enjoy the company of one's spouse.

A Supreme Court Justice dismissed the case against the City, holding that "running on a snowy sidewalk was uniquely required of the police officer." After this ruling, the property owners argued that the case against them should be dismissed as well. The Court said no, citing the new law.

The decision notes that effective October 9, 1996, amendments to General Municipal Law §205-e and the General Obligations Law significantly affect the rights of police officers to sue for injuries which occur while the police officers are on duty.

§205-e.3 now allows police officers and firefighters to pursue suits  "regardless of whether the injury or death is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department."

In other words, police officers who are injured in the course of duty now have the right to sue third parties such as a property owner or an automobile driver just like any citizen. As in any other tort case, the police officer will simply have to prove that the third party was negligent, and that this negligence was the cause of their injury. The fact that a police officer was injured in the line of duty prevents the employer from being liable under the law in most circumstances, but does not have any relevance to the question of the liability of a third party whose actions or inactions may have led to the injury.

Further, a new §11-106 has been added to the General Obligations Law providing for compensation for injury or death to police officers and firefighters or their estates. This new section states that "in  addition to any other right of action or recovery otherwise available under law, whenever any police officer or firefighter suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity, other than that police officer's or firefighter's employer or co-employee, the police officer or firefighter .... may seek recovery and damages from the person or entity whose neglect, willful omission, or intentional, willful or culpable conduct resulted in that injury, disease or death.

Under §205-e, the Court said that where the police officer or firefighter contends that his or her injury resulted from the defendant's failure to comply with the provision[s] of a statute or ordinance, the provision[s] must be set out in the complaint. Also, the police officer or firefighter must set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm suffered by the police officer or firefighter.

Protected activities under the Taylor Law


Protected activities under the Taylor Law
DeVito v Kinsella, 234 A.D.2d 640

City of Rye Police Commissioner Anthony J. Schembri issued a directive prohibiting Sergeant George DeVito from working overtime or swapping duty tours with other personnel. DeVito, president of the Rye Police Association [RPA],  responded by filing an improper employer practice charge with PERB, claiming the directive was issued in retaliation for his participating in three "protected activities" under the Taylor Law. The activities: (a) DeVito's being named as RPA's representative on a compulsory interest arbitration panel; (b) a letter sent by RPA's lawyers complaining about Schembri's alleged accusation of racist behavior by DeVito and another sergeant; and (c) DeVito's request for a staff meeting on behalf of all members of the department.

The Department testified that Schembri decided to suspend DeVito's overtime and tour-swapping privileges because DeVito's abuse of sick leave.

PERB dismissed DeVito's charges, finding that Schembri was not aware of DeVito's "protected activities" when he issued the directive and that directive was not issued because of those activities. DeVito brought an Article 78 proceeding to annul PERB's determination. The Appellate Division noted that in cases of this type the court's inquiry is limited to whether or not "there exists a rational basis to support the findings upon which the agency's determination is predicated," citing Purdy v Kreisberg, 47 NY2d 354.

According to the record, Schembri was concerned with the "high cost of overtime ... due to the excessive use of sick leave." The Court noted that the Department's records showed that DeVito charged seven sick days one month while being available to work overtime duty nine times during that month. In the following month DeVito was absent four days on sick leave but worked seven tours of duty on an overtime basis. Reminded by First Sergeant Robert Falk that he had sanctioned another sergeant for excessive sick leave usage by suspending his overtime and "side-job" privileges, Schembri decided to similarly sanction DeVito.

The Appellate Division said that it was not its function to weigh the evidence, reject testimony or to substitute its judgment for that of the administrative body on matters of the credibility of witnesses. It decided that the testimony credited by PERB provided a rational basis to support the findings that Schembri was not aware of any of the three specified protected activities before he decided to restrict DeVito's overtime and tour swapping privileges. Accordingly, the Court affirmed PERB's determination.

Impasse resolution, New York City

Impasse resolution, New York City
City of New York v Police Bene Asso, 89 NY2d 380

The Court of Appeals has struck down Chapter 13 of the Law of 1996, which gave the New York State Public Employment Relations Board [PERB] exclusive jurisdiction in resolving negotiation impasses between the City and the employee organization representing New York City law enforcement personnel on the grounds that it was not enacted in accordance with the "home rule" requirements of Article IX, §2 of the State Constitution. The amendment provided for the resolution of a negotiating impasse involving the City and employee organizations representing such employees through binding arbitration to be administered by PERB.

The Taylor Law binding arbitration procedure for public safety personnel was initially added to §209 in 1974. However New York City's collective bargaining law already provided for binding arbitration, to be supervised by the BCB, the City's "mini-PERB," when an impasse was reached between the City and any of its employees, including its police and firefighters.

In recognition of this,  PERB's binding arbitration procedures for public safety employees specifically exempted members of New York City's police and fire departments. §2 of Chapter 13, however, purported to remove this exemption.

The genesis of the change was the impasse between the City and PBA that arose in the course of negotiating its collective bargaining agreement expiring on March 31, 1995. In January 1996, under the then applicable procedures, the City requested that the BCB appoint an impasse arbitration panel in accordance with §12-311 of its Administrative Code. PBA, however, attempted to move the City's impasse panel request to PERB for further action. The City objected and sued.

The Court concluded that there is little question but that chapter 13 of the Laws of 1966 is a special law relating to New York City triggering the home rule procedural requirements of the Constitution.

As Chapter 13 did not meet the Court  recognized exception to those requirements -- "the subject matter of the statute is of sufficient importance to the State generally to render it a proper subject of State legislation" (Kelley v McGee, 57 NY2d, at 538) -- it was declared null and void.

July 28, 1998

Disqualification of an employee


Disqualification of an employee
Coulthurst v NYC Transit Authority, 231 A.D.2d 519

§50.4 of the Civil Service Law [CSL] permits a civil service commission to disqualify an candidate on an eligible list or an employee under specified conditions. Sometimes a person who is disqualified challenges his or her disqualification on the grounds that the procedures set out in §50.4 were not followed.

This was the problem when Jeffrey D. Coulthurst was disqualified for his position during his probationary period. However, the Appellate Division ruled that "any failure to follow the procedure set forth in CSL §50.4 was cured by the hearing which [Coulthurst] subsequently received before the New York City Civil Service Commission." 

The Court commented that Coulthurst was a probationary employee whose disqualification was "properly upheld by the Civil Service Commission" and under the circumstances, was not entitled to either reinstatement or back pay for the period in question.

Issues involving the status of an individual receiving a permanent appointment to his or her position and the individual's probationary service and tenure in the position


Issues involving the status of an individual receiving a permanent appointment to his or her position and the individual's probationary service and tenure in the position
Tartaglione v Giambruno, NYS Supreme Court, Not selected for publication in the Official Reports

The Tartaglione case explores a number of issues concerning permanent appointment to the public service and the probationary period that is usually coupled with such an appointment. The keys to attaining tenure in the public service are:

(a) permanent appointment and

(b) successful completion of any probationary period required by law, rule or regulation.

As to some of the relevant basics:

a. §63.1 of the Civil Service Law provides that "every original appointment to a position in the competitive class is subject to a probationary period." The individual's probationary period begins on the effective date of the appointee's permanent appointment. Stated another way, although a probationer, the individual is a permanent employee.

b. The probationary period is usually set in terms of a minimum period and a maximum period of probation.

c. The courts have ruled that a probationer is entitled to a pre-termination hearing before he or she may be removed from the position during the minimum probationary period. In contrast, a probationer may be removed without notice and hearing after completing the minimum period of probation and before completing his or her maximum period of probation. Additionally, under certain circumstances, a probationer may be offered the opportunity to serve a "second probationary period" in lieu of termination.

The appointing authority determines if and when the employee has satisfactorily completed his or her probationary period, and, in appropriate situations, whether to offer to extend the individual's probationary period beyond the maximum period.

The consequences of inaction could be considerable.  Should the appointing authority fail, or neglect, to timely notify a probationer that he or she is to be terminated for failure to satisfactorily complete the probationary period  on or before the end of the individual's probationary period, the employee is deemed to have obtained tenure by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce.

In this specific case, Nicholas Tartaglione sued the Westchester County director of personnel when the director refused to approve Tartaglione's permanent appointment as a police officer with the Village of Briarcliff.

Tartaglione's personnel history indicated that he had served as a police officer with a number of jurisdictions. He was initially  appointed as a police officer by the City of Mount Vernon in January 1993. This permanent appointment was subject to a probationary period.

In December 1993 the Mount Vernon Civil Service Commission told Tartaglione that he could transfer to the Yonkers Police Department because "he was a permanent employee." He resigned his position in Mount Vernon and joined the Yonkers police force.

Three months later Tartaglione resigned from Yonkers because he did not, or could not, meet its residence requirement.

On September 14, 1994 Tartaglione was appointed as a police officer by the Village of Pawling. Pawling is located in Dutchess County. In the course of obtaining this appointment, Tartaglione asked for, and received, a letter from the Mount Vernon Civil Service Commission stating he was "a full time permanent police officer during the time he worked for the City of Mount Vernon until he resigned on December 22, 1993 [after] successfully completing [his] probationary period."

On May 20, 1996 Tartaglione resigned his position with Pawling to accept an appointment as a police officer with the Briarcliff Manor police department. Briarcliff Manor is located in Westchester County. Briarcliff, however, did not clear the personnel transaction with Westchester County Personnel Office [Personnel] before Tartaglione resigned from Pawling.

Westchester refused to approve Briarcliff's "reinstating" Tartaglione, indicating that despite the Mount Vernon Commission's letter to Pawling confirming that Tartaglione had successfully completed his probationary period with that jurisdiction, his "civil service roster card from the City of Mount Vernon indicated that he had not." Tartaglione was suspended by Briarcliff.  Briarcliff decided to hold the position open for him "pending a decision" by Supreme Court.

Did Tartaglione complete his probationary period before leaving Mount Vernon? Both Westchester and Mount Vernon cited regulations providing that a police officer's probationary period can range from 3 months to 18 months.

Both jurisdictions' claims also contended that Tartaglione was supposed to have received a letter indicating he completed his probationary period and the fact that he did not meant that he was still a probationer when he left Mount Vernon.

Tartaglione, on the other hand, argued that Mount Vernon's Civil Service  Commission  declared him permanent after 12 months, fully within the three to 18 month probationary range set forth in its own rules. Tartaglione also claimed that Westchester had the power, under its own rules, to approve his selection by Briarcliff Manor.

NOTE: Nothing in the decision indicates what action, if any, Mount Vernon Police Department, the appointing authority, had taken concerning Tartaglione's probationary status.

Tartaglione won the case. The Court decided that Westchester's refusal to approve Tartaglione's rehiring "on the basis of Mount Vernon's records or lack thereof" was arbitrary and capricious because:

a. Neither Westchester nor Mount Vernon offered any explanation concerning the basis for either Mount Vernon's oral advisories to Tartaglione or its letter to Pawling other than to claim that it was a "clerical error."

b. Westchester County personnel "never even attempted to determine if any separate certification of permanency [sic] was issued by the appointing authority in Yonkers for the minimum three months status period of petitioner's employment there."

c. Westchester did not consider the impact, if any, of Tartaglione's completion of any "additional probationary period" while serving with Pawling as required by Dutchess County and any relation back of Dutchess' determination with respect to his present status with Briarcliff Manor.

The Court ruled that these omissions made the personnel director's "non-discretionary" refusal to approve Tartaglione's reinstatement or transfer "arbitrary and capricious."

The Court also said that Westchester was "estopped"  from refusing to approve Tartaglione's appointment. Applying the doctrine of estoppel bars an entity from speaking against or ignoring the impact of its own actions.

 Although the doctrine of estoppel is not generally available against governmental agencies in connection with their performing their governmental functions, courts will apply it "under unusual circumstances where the facts compel it to prevent manifest unfairness or injustice."

Noting that Tartaglione [and his several employers] relied on the information provided to them by Mount Vernon, the Court decided that "for both legal and equitable reasons," the non-discretionary decision by Westchester that Tartaglione was not qualified under County rules for reinstatement or retention as a police officer with permanent status with the Briarcliff Manor Police Department should be "set aside."

Westchester was directed to approve Tartaglione's appointment with Briarcliff Manor, subject to "any probationary period the Village may impose under its own rules, but only if so advised."

Accidental disability retirement

Accidental disability retirement
Wheeler v McCall, 233 A.D.2d 660

The standard that must be met by a member of the New York State Employees' Retirement System [ERS] in order to qualify for accidental disability retirement benefits is rigorous. As the Appellate Division commented in the Wheeler case, to qualify as an accident within the meaning of the Retirement and Social Security Law [RSSL] the event underlying the disability claim must be a "sudden, fortuitous mischance which is out of the ordinary and unexpected."

Alena Wheeler was employed as the chief clerk by the City of Utica. She left in 1993, complaining that the "poor air quality" in the building in which she worked resulted in her having health problems. She then filed an application for accidental disability retirement benefits with ERS. Although it was conceded that Wheeler had been exposed to indoor air pollution for an extended period of time, ERS rejected her application, contending that her health problems were not the result of an accident within the meaning of RSSL.

Were Wheeler's health problems "accidental?" The Appellate Division decided that the circumstances leading to Wheeler's leaving her position did not constitute an accident for the purposes of the RSSL and affirmed ERS' determination.


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