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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 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.

Contracting out work


Contracting out work
Cayuga BOCES v Labor Dept., 89 N.Y.2d 395

In a decision that has significant implications for BOCES and school districts, and possibly other public sector employers as well, the Court of Appeals upheld a ruling by the New York State Department of Labor that under certain conditions a BOCES is required to pay the "prevailing wage rate" to its employees.

§220 of the Labor Law defines the term "prevailing rate of wage" as follows: "the  rate  of  wage paid  in  the locality, ... by virtue of collective bargaining agreements between bona fide labor organizations and  employers of  the private  sector,  performing  public  or private work provided that said employers employ at least thirty per  centum  of  workers,  laborers  or mechanics in the same trade or occupation in the locality where the work is being performed."

The question arose as the result of the Auburn City School District [Auburn] decision to "contract out" a construction project to the Cayuga-Onondaga Counties Board of Cooperative Educational Services [BOCES].

BOCES entered into an agreement with Auburn to undertake, and provide the labor for, an electrical rehabilitation project. BOCES then hired 41 full-time Auburn School District employees to do this work. The work was to be perform by these employees after their normal working hours. The 41 workers were appointed to BOCES positions that the Cayuga County Civil Service Commission had classified as temporary, seasonal positions in the labor class.

Auburn would have had to pay its employees working on the project "overtime" had they worked  directly for the District after their regular work shifts. In contrast, BOCES paid the employees the same "straight time rates"  that they received from the Auburn in their regular jobs rather than at their "overtime" rate or at the "prevailing rate" for electricians.  Under the terms of the agreement, Auburn reimbursed BOCES for its payments to the workers for their work on the project.

A New York State Department of Labor hearing officer ruled that:

1. the arrangement between the Auburnand BOCES was made to avoid the district's liability for payment of overtime wages to its employees working on the project;

2. BOCES was acting in the capacity of a general contractor for the school district on the project; and

3. the 41 BOCES employees should have been paid the [higher] prevailing wage for electricians under §220 of the Labor Law.

This ruling was sustained by the Appellate Division and BOCES appealed.

The Court of Appeals affirmed the Appellate Division's decision, rejecting BOCES' argument for reversal.

BOCES contended that because the 41 Auburn school district employees it hired to perform the work were classified by the Cayuga County Civil Service Commission as temporary seasonal employees of BOCES, they fell "within the common law exemption from the statutory prevailing wage rate mandate for classified and graded public employees." BOCES cited the Court of Appeals' ruling in Corrigan v Joseph [304 NY 172] in support of its position.

The Court disagreed, holding that because the 41 workers were ungraded employees of BOCES, awarding them increases in remuneration to the level of prevailing wage rates would not effectively grant them a promotion to above-grade salary levels. "Hence," said the Court, "no violation of civil service law principles of merit and fitness promotions are implicated by application of Labor Law 220 here, and the exemption does not apply."

N.B. §220.8-d of the Labor Law sets out a special provision for considering "prevailing wage rate" issues involving employees of the  New York City who are "laborers,  workmen  or mechanics in a particular civil service title" who are members  of  an  employee  organization  which  has  been  certified  or recognized  to  represent  them  pursuant  to  the provisions of Article 14 of the Civil Service Law [the Taylor Law].

This ruling suggests that if the 41 positions had been allocated to a salary grade, assuming that BOCES had a formal salary schedule in place applicable to positions, the Court might have come to a different conclusion insofar as the operation of §220 was concerned.

Typically a  local civil service commission does not "allocate positions to salary grades." Although a local commission classifies a position based on its duties and qualifications, and considers the question of its proper jurisdictional classification if the appointing authority requests that it not be included in the competitive class, the appointing authority generally determines the rate of compensation to be paid and whether the position is to be a "graded" or  an "ungraded" position with respect to its inclusion in its "salary plan."

Most State positions in the classified service are allocated to a "statutory salary grade [SG]." Examples of this are the "SG" salary schedules for State employees set out in §130 of the Civil Service Law. Relatively few State positions are designated as NS ["non-statutory"], meaning that the position is not allocated to a "statutory [§130] salary grade." There is a third classification, usually referred to as "OS [other statutory] positions." The term "OS" is used to describe a position where  the salary is set by other than the Civil Service Law. For example, the salary of a number of State officers and commissioners is set out in the Executive Law or other laws and are typically referred to as "OS positions."

The full opinion of the Court follows:

This opinion is uncorrected and subject to revision before publication in the New York Reports.


*******PELN 1997*


No. 273

In the Matter of Cayuga-Onondaga Counties Board of Cooperative Educational Services,  Appellant, v. John E. Sweeney, as Commissioner of Labor of State of New York, et al., Respondents.

Thomas J. Grooms, for appellant.
Jennifer S. Brand, for respondents.
New York State School Boards Association, Inc.;
New York State Conference of Mayors and Municipal Officials, amici curiae.

LEVINE, J.:


The facts of this controversy are essentially undisputed. In l992, petitioner Cayuga-Onondaga Counties Board of Cooperative Educational Services (BOCES) entered into an agreement with one of its member school districts, the Auburn City School District, to provide the labor for a lighting improvement project consisting of changing the ballasts in the fluorescent lighting to more energy efficient ballasts at all school buildings throughout the district. BOCES hired 41 full-time employees of the Auburn school district to work after hours in performing the installation. BOCES applied to the Cayuga County Civil Service Commission and obtained a civil service classification of these workers as temporary, seasonal laborers of BOCES. Their BOCES pay rates were the same as they received from the Auburn school district, but they were not compensated at overtime rates, which they would have received had they performed the work directly for the school district. The Auburn City School District reimbursed BOCES for its payments to the workers on the ballast replacement project.            

After receiving informal complaints from workers in the ballast replacement project, an official of the area's electrical workers union (which did not represent the workers involved) filed a formal complaint with the State Department of Labor averring that BOCES was required to pay the prevailing wage rate for electricians to its employees on the project. Following a department field investigation, the Commissioner of Labor issued a Notice of Hearing to BOCES in March l994 on allegations that BOCES failed to pay the prevailing wages and supplements to 41 of its employees on the Auburn school district lighting project, in violation of Labor Law 220.

At the conclusion of the hearing, the hearing officer issued a report and recommendation. The hearing officer found that the arrangement between the Auburn City School District and BOCES was made to avoid the school district's liability for payment of overtime wages to its employees working on the project; that BOCES was acting in the capacity of a general contractor for the school district on the project; and that the type of work performed by the 41 BOCES employees was generally performed by electricians. The hearing officer determined that the ballast replacements constituted a public work project and that BOCES violated Labor Law 220 in failing to pay its workers prevailing electricians' wage rates. She further ruled that BOCES was not exempt from the requirements of Labor Law 220 by reason of its employees' civil service classifications as temporary seasonal laborers.

The Commissioner of Labor adopted the hearing officer's report in all respects and ordered a further hearing for the purpose of determining the amount of underpayment, any civil penalty and willfulness. The Appellate Division confirmed the determination and dismissed the petition (__AD2d___). We granted BOCES permission to appeal.

BOCES' primary grounds for reversal are that the Commissioner of Labor lacked jurisdiction to make the determination herein because a timely notice of claim against BOCES in compliance with Education Law 3813(1) was never filed by the Department of Labor and because the Commissioner failed to commence formal proceedings against it through the service of Notice of Hearing until after the one year statute of limitations of Education Law 3813(2-b) had expired. We find these arguments unpersuasive.           

In determining the applicability of the three-month notice of claim requirement of Education Law 3813(1) to statutory or nonjudicial proceedings involving school districts, school boards and boards of cooperative educational services, as well as parallel notice of claim requirements when such proceedings involve other municipal units of government, our Court has distinguished between proceedings "which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of §3813 are applicable as to the former but not as to the latter" (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Div. of Human Rights Appeal Bd., 35 NY2d 371, 380, rearg denied 36 NY2d 807).

Thus, in Union Free School District No. 6 (supra), the issue was the validity of a provision of a collective bargaining agreement mandating inferior treatment of pregnancy and child birth absences from absences based on other physical or medical disabilities, challenged as illegal sex discrimination. We held that although the "proceeding was triggered by the complaint of this one teacher", and the monetary relief granted would benefit the complainant and teachers similarly situated, those "advantages flow[ed] as an appropriate and intended consequence of the vindication by the division, acting on behalf of the public, of the public's interest in the elimination of discrimination based upon sex -- a public interest duly declared by legislative enactment" (35 NY2d, at 380).

Contrastingly, in Mills v County of Monroe (59 NY2d 307, cert denied 464 US l0l8) a plenary civil damage action authorized under state and federal anti-discrimination statutes seeking only personal redress for "allegations of actionable conduct on the part of the county refer[able] only to conduct that relates to [the plaintiff]," the filing of a notice of claim, as generally required under County Law 52(1), was held to be a condition precedent to the suit.

The instant proceeding initiated by the Commissioner of Labor to enforce prevailing wage payment requirements for public work projects under §220 of article 8 of the Labor Law falls well within the vindication of a public interest category, for which statutory notice of claim requirements are inapposite.

First, the mandate that laborers, workers and mechanics employed in public work projects be paid the wages "prevailing" in their trade or occupation in the locality is not merely of statutory derivation but has its underlying basis in article I, 17 of the State Constitution. The prevailing wage requirement was first enacted in legislative form in 1894 (L 1894, ch 622; see, Report of Temp St Commn on Constitutional Convention of l967, Housing, Labor and Natural Resources, at 80). In response to this Court's decision in People v Coler (l66 NY l), which partly invalidated the l894 law, the State Constitution was amended in l905 to authorize prevailing wage legislation (Report of Temp St Commn on Constitutional Convention of 1967, supra, at 80).

The prevailing wage/public work requirement was retained as a constitutional imperative in its present form in the l938 State Constitution. Constitutional Convention Delegate (and State Senator) Dunnigan, a proposer of its retention, argued that inclusion of the prevailing wage mandate in the Constitution was necessary because "it has become a fixed principle in our society, which should be embodied in our organic law so as to insure its continuance [and] because it should assume constitutional proportions so that this policy of state may be manifest to labor and industry as a principle of state" (Revised Record, l938 Constitutional Convention, at 2204).

Labor Law 220, in content, structure and purpose confirms that a proceeding such as this, brought by the Commissioner of Labor to enforce the statutory and constitutional mandate, has as its overriding goal the vindication of a public interest rather than just to provide a forum in a particular case for the adjudication of a claimed personal statutory right, as in Mills v County of Monroe (supra) (see also, Board of Educ. of Union Free School Dist. No. 2 v New York State Div. of Human Rights [Arluck], 44 NY2d 902, 904, rearg denied 45 NY2d 838; Matter of Board of Educ. of Enlarged Ogdensburg City School Dist. [Wagner Corp.], 37 NY2d 283). §220 has been characterized as "an attempt by the state to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen, and mechanics" (Austin v City of New York, 258 NY 113, 117 [Cardozo, C.J.] [emphasis supplied]).

The statutory procedures, powers and duties of the Commissioner and available remedies and sanctions under §220 and the other provisions of article 8 of the Labor Law all have the earmark of a powerful administrative mechanism for the enforcement of a strong public policy, over which a private complainant has no control. Except for New York City's public work projects, the Commissioner of Labor is required to ascertain prevailing wage rates on all public work performed in the State, irrespective of whether affected workers have complained of a violation of the statute (Labor Law 220[3]). The Commissioner is not limited to responding to a formal, verified complaint of an "interested person" employed in the performance of a public work, but "may [as in the instant case] on his [or her] own initiative cause a compliance investigation to be made" (Labor Law 220[7] [emphasis supplied]). The Commissioner determines whether to hold a formal statutory hearing to adjudicate any violation preliminarily disclosed through the compliance investigation (Labor Law 220[8]). The Commissioner must investigate "the willfulness of the alleged violation" (Labor Law 220[7-a]) -- obviously an issue entirely independent of the resolution of the claims of individual workers to additional remuneration up to the appropriate prevailing wage rate. A willful violation carries criminal sanctions (Labor Law 220[3]), and a second administrative adjudication of a willful violation within a six year period renders the violator ineligible for any award of a public work contract for five years (Labor Law 220-b[3][b]). Moreover, even in the absence of a willful violation, upon a determination of a prevailing wage rate violation, the Commissioner is authorized not only to grant remedial relief to affected workers, but may also impose a civil penalty of up to 25% of the total additional wages and supplements due, payable to the State (Labor Law 220[8]).

All of the foregoing potent tools available to the Commissioner of Labor under §220 and other provisions of Labor Law article 8 to enforce the public policy of the State, for the payment of prevailing wages on all public work projects, may be exercised independently of the position or even existence of a private complainant. Thus, proceedings under §220 are the antithesis of proceedings for the enforcement of private rights, statutory or otherwise. Subjecting the Commissioner's jurisdiction under §220 and companion §§of Labor Law article 8 to the three month notice of claim requirements of Education Law 3813(1) would drastically weaken the Commissioner's ability to enforce the strong prevailing wage policy of the State against school districts. Thus, prevailing wage enforcement proceedings under Labor Law 220 constitute instances where the public "interests in their resolution on the merits override [a school district's or BOCES'] interest in receiving timely notice before commencement of an action" (Mills v County of Monroe, supra, 59 NY2d, at 3ll), and the Commissioner's failure to file a notice of claim under Education Law 3813(1) is not preclusive.

Likewise, in enforcement proceedings under Labor Law 220 or other provisions of article 8 of that statute, the Commissioner of Labor is not bound by the one year statute of limitations of Education Law 3813(2-b). All of the public policy considerations for finding that Education Law 3813's notice of claim requirement is inapplicable to these proceedings are equally valid with respect to the statute of limitations set forth in that section. We have already held that a procedural bar to the suit of a private individual may not preclude a State administrative agency from enforcement proceedings "vindicat[ing] a public right to protection against conduct which the Legislature has found is inimical to the welfare of the People of the State" (New York State Labor Relations Board v Holland Laundry, 294 NY 480, 495 [litigation between employer and employees not a res judicata bar against State Labor Relations Board action covering the same subject matter], rearg denied 295 NY 568).

Moreover, applying either the notice of claim or statute of limitations provisions of Education Law 3813 to prevailing wage law enforcement proceedings would conflict with (1) the three year period given the Commissioner of Labor within which to initiate enforcement proceedings under Labor Law 220-b(2) (for withholding amounts due the contractor or subcontractor); (2) the authority of the Commissioner of Labor to docket an administrative order determining liability for failure to pay prevailing wages as a money judgment, without commencing a plenary action (Labor Law 220[8], 220-b[2][f]); and (3) various periods of limitation contained in Labor Law article 8 for the commencement of civil actions against violators to recover the deficiencies in payment of prevailing wages, all of which are measured from the date of the final administrative determination of a prevailing wage violation by the Commissioner of Labor (such as challenged here) after the completion of judicial review, if any (see, Labor Law 220[8], 220-b[3][a]); Bucci v Village of Port Chester, 22 NY2d l95, 203-204 [the municipal notice of claims statutes have no "relevancy or application to actions brought pursuant to subdivision 8 of §220"]). Since notice of claim requirements have no relevance to article 8 civil actions (Bucci v Village of Port Chester, supra), a fortiori they have no relevance to the Commissioner's enforcement proceedings (as in the instant case) upon which the civil actions are based.         In equating this enforcement action with the private damages action at issue in Mills, the dissent ignores the breadth of the statutory enforcement tools available to the Commissioner, the independent limitations periods for administrative enforcement actions contained in the Labor Law, the limitations periods for statutory civil actions which are dependent on the administrative determination, and the controlling precedential effect of Bucci (supra) here, that since notice of claims requirements are not applicable to these Labor Law civil actions they cannot, a fortiori, be applicable to the administrative enforcement proceedings upon which those actions depend.

We also reject BOCES' alternative argument for reversal, that because the 41 Auburn school district employees hired by BOCES to perform the ballast replacements were classified by the Cayuga County Civil Service Commission as temporary seasonal employees of BOCES, they fall within the common law exemption from the statutory prevailing wage rate mandate for classified and graded public employees (see, Corrigan v Joseph, 304 NY 172, rearg denied 304 NY 759, cert denied 345 US 924; Matter of Buffalo Bldg. Trades Council of the Buffalo Board of Educ. Employees v Board of Educ., of City of Buffalo, 36 NY2d 782; Wood v City of New York, 274 NY 155). Because the 41 workers were ungraded employees of BOCES, awarding them increases in remuneration to the level of prevailing wage rates would not effectively grant them a promotion to above-grade salary levels. Hence, no violation of civil service law principles of merit and fitness promotions are implicated by application of Labor Law 220 here, and the exemption does not apply (see, Gaston v Taylor, 274 NY 359, 363; cf., Corrigan v Joseph, supra).

All other issues raised here were unpreserved and have not been considered.

Accordingly, the Appellate Division's order should be affirmed, with costs.

----------------------------------------------------------------
CIPARICK, J. (dissenting):

Because we conclude that a notice of claim should have been served on petitioner pursuant to Education Law 3813(1), we would reverse the order of the Appellate Division. Therefore, we respectfully dissent.

Respondent, Commissioner of Labor, initiated the underlying proceeding pursuant to Labor Law 220(7) to determine whether petitioner, Cayuga-Onondaga Counties Board of Cooperative Educational Services (BOCES), paid 41 employees of the Auburn City School District and Moravia Central School District (collectively, Auburn) prevailing wages for the ballast replacement work performed in school buildings in those districts.

The Hearing Officer designated by the Commissioner found, as a matter of fact, that the "[e]mployees hired by [petitioner] received the civil service classification of laborer [and a]ll of the 41 employees were appointed by the Cayuga County Civil Service Commission as seasonal laborers employed by BOCES." The Hearing Officer ruled, as a matter of law, that since BOCES was acting as a contractor by performing work for a legal entity other than itself, the "State Constitution (Art 1, 17) and Labor Law 220 requires that workers engaged on such public work receive prevailing wages." Thus, the Hearing Officer concluded that Auburn "used BOCES to avoid paying overtime wages and benefits to its employees" and that BOCES, by hiring the Auburn employees as seasonal workers, did not pay the prevailing rate of wages. The Hearing Officer directed BOCES to pay the prevailing wage rates or provide supplements in accordance with Labor Law 220(8). Respondent-Commissioner adopted and confirmed the Hearing Officer's factual findings and conclusions of law, and ordered a further hearing to determine (1) the amount of underpayments, (2) whether to impose a civil penalty and (3) the willfulness of the Labor Law violations. The Appellate Division confirmed respondent's determination (see, M/O Cayuga-Onondaga Cts Bd of Coop Educ Servs v Sweeney, ___ AD2d ___).

We do not quarrel with the Majority's analysis that the principles embodied in Labor Law 220, derived from article I, 17 of our State Constitution, reflect the State's policy and strong public interest that laborers, workers and mechanics employed in public works projects be paid "prevailing wages." However, we disagree that an enforcement action brought pursuant to the administrative procedures outlined in Labor Law 220(7) and (8) excuses the Education Law's express statutory notice of claim requirement which enjoins the prosecution or maintenance of any "action or special proceeding, for any cause whatever . . . relating to . . . the rights or interests of any district or any such school . . . against any . . . board of cooperative educational services . . . unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim" (Education Law 3813[1] [emphasis added]; see, Mills v County of Monroe, 59 NY2d 307, 309, cert denied 464 US 1018).

In Mills, supra, the Court determined that plaintiff's failure to comply with the pertinent notice of claim requirement was fatal to her employment discrimination suit. While recognizing the narrow, judicially-crafted exception to notice requirements in actions brought to vindicate an important public interest, generally applied in the context of civil rights violations, the Mills court drew an important, distinguishing line. There, plaintiff alleged that defendant, County of Monroe, impermissibly terminated her employment based on race and national origin in contravention of Executive Law 296 and 42 USC 1981, statutes which provide administrative remedies for individuals aggrieved by violations of both the State and Federal public policy outlawing discriminatory conduct.            Faced with a motion for summary judgment for failure to file a notice of claim pursuant to County Law 52, plaintiff Mills argued that the notice requirement was inconsistent with the remedial and deterrent policies of the civil rights laws (see, id., at 309). Rejecting plaintiff's argument, the Court determined that the State's notice requirements were not antithetical to the policy underlying the civil rights laws since notice provisions themselves serve an important State interest -- protecting municipalities and public corporations against fraudulent and stale claims (see, id., at 310-311) -- and neither the public policy barring discriminatory conduct nor that intended to provide governmental entities with timely notice of a claim preempted or outweighed the other.

The Court concluded that even though plaintiff was seeking to vindicate the right to be free of discriminatory employment practices -- an important public interest embodied in both Federal and State statute -- and she alleged that the County engaged generally in unlawful discriminatory practices, "her action seeks relief only for her termination, which she alleges resulted from her opposition to the County's discriminatory practices and her race and national origin. The relief she seeks is money damages for her loss of wages and damage to her reputation. Inasmuch as the disposition of plaintiff's claim was not intended to nor could it directly affect or vindicate the rights of others, her action is properly characterized as one seeking the enforcement of private rights" (id., at 312 [emphasis added]; see also, 423 South Salina St, Inc v City of Syracuse, 68 NY2d 474, 493, cert denied 481 US 1008; Board of Educ of Union Free School Dist No 2, East Williston, Town of North Hempstead v New York State Div of Human Rights, 44 NY2d 902, 904, rearg denied 45 NY2d 838; M/O Saranac Lake Central School Dist v New York State Div Of Human Rights, ___ AD2d ___, 640 NYS2d 303, 304; M/O Board of Educ of the Union-Endicott Cent School Dist v PERB, 197 AD2d 276, 278-279, lv to appeal denied 84 NY2d 803; M/O Harder v Board of Educ, Binghamton City School Dist, 188 AD2d 783, 784; accord, Ruocco v Doyle, 38 AD2d 132, 134; cf, New York State Labor Rel Bd v Holland Laundry, 294 NY 480, 495-496).    This reasoning applies with equal force to the instant appeal, which, distilled to its essence, is an action to recover lost wages. While any action brought to enforce a right protected by statute can be said to serve the public interest in some manner, Mills establishes that an action brought to vindicate a right -- even a statutorily protected right generally categorized as one in the public interest -- does not excuse an applicable notice requirement when the remedy sought inures strictly to the personal benefit of the aggrieved claimants.

The Majority's heavy reliance on Union Free School Dist No 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd (35 NY2d 371, rearg denied 36 NY2d 807) -- decided nearly 10 years before Mills -- to support its proposition that the underlying proceeding was one to vindicate a public right is misplaced. In that case, unlike Mills or the instant case, plaintiff's action truly vindicated the important right to equal treatment in the workplace, which the Court concluded would inure to the benefit of a similarly situated class, by establishing that pregnant women possess rights equivalent to individuals who avail themselves of leaves of absences for other disabilities. That a statutory mechanism provides the method for aggrieved claimants to vindicate their personal economic interest in a recognized right does not transmute an action for alleged underpayment of wages to 41 employees into one to vindicate a public right, a point central to our disagreement with the Majority's holding.

Tracing the genesis of Labor Law 220(7) and (8), it is evident that these enforcement provisions were adopted for the purpose of providing workers on the job with an effective administrative remedy, not "to provide a method of enforcing the prevailing rate of wages statute generally" (M/O Yerry v Goodsell, 4 AD2d 395, 398, aff'd 4 NY2d 999), which is what the Majority holds. The predecessor §§to Labor Law 220 (7) were penal in nature dictating criminal prosecution of violators but providing no remedy for the exploited worker to recover lost wages (see, Labor Law of 1909, 3, as amended by L 1916, ch 152; see also, M/O Gaston v Taylor, 274 NY 359, 361-362; M/O Yerry v Goodsell, supra, 4 AD2d, at 398). The 1927 amendment to §220 created the administrative procedure essentially in place today by which workers who claim to be aggrieved because they performed public work at a rate lower than the prevailing wage have the right to file a verified complaint with the Commissioner of Labor for an administrative determination of the prevailing wage rate (see, Labor Law 220(7) [originally added by L 1927, ch 563]). Contrary to the Majority's holding, it does not follow from this that every proceeding instituted to adjudicate a prevailing wage claim constitutes an action to vindicate a public interest which justifies discarding the statutory notice of claim requirement governing actions or special proceedings commenced against certain public corporations, such as a BOCES or a Board of Education (accord, Mills, 59 NY2d, at 312, supra). While it has been said that the complaint procedure set forth in Labor Law 220(7) "was designed solely for the purpose of enabling the employees on the job to obtain effective relief" (M/O Yerry v Goodsell, supra, 4 AD2d, at 399), to construe Labor Law 220(7) as the Majority does effectively abolishes the prerequisite that a notice of claim be filed in an action for lost wages simply because there is a statutory scheme that invests a public official with investigatory and enforcement powers regarding a matter of public interest.

Moreover, the fact that Education Law 3813(1) specifically requires a notice of claim in contract actions places it outside the general rule restricting such requirement to claims against a municipality or public corporation to those sounding in tort (see generally, General Municipal Law 50(e) and (i); NYC Administrative Code 7-201[a]; see also, H&J Floor Covering, Inc v Board of Educ of City of New York, 66 AD2d 588). The Majority does not advance -- nor is there -- any valid or rational justification to exempt an action under Labor Law 220 from this requirement or from the one year statute of limitations (cf., Board of Educ of the Katonah-Lewisboro School Dist v Board of Educ of the Carmel Cent School Dist, 174 AD2d 704, 705 [public interest exception does not permit commencement of actions against school district after expiration of one year statute of limitations provided in Education Law 3818(2-b)]) given that the ultimate relief sought by claimants not only imposes a financial liability on BOCES, a component part of the school district, but where the financial award does not inure to the benefit of the members of a similarly situated class. The inclusion of a notice of claim requirement in Education Law 3813 for contract actions is strong evidence of the legislative intent that a notice of claim is a condition precedent to the maintenance of an action by or on behalf of workers to collect purported underpayments of wages, regardless whether the "action" is brought in a court or an administrative tribunal. Certainly, if the Legislature intended to exempt Labor Law 220 from these statutory prerequisites it would have done so in explicit terms. Thus, we conclude that the Commissioner's failure to file a notice of claim mandates that the petition be granted.     The Majority's comment that we have ignored the breadth of the enforcement tools available to the Commissioner by suggesting that the limitations periods set forth in Education Law 3813(2-b), and the notice of claim requirement of Education Law 3813(1), apply to actions seeking to recover underpayments overlooks our point: it is the gravamen of the claim against BOCES -- or a Board of Education -- that controls the applicability of the statutory prerequisite of a notice of claim or limitations period, not the procedural posture in which the claim was initially pursued. The bald statement in Bucci v Village of Port Chester (22 NY2d 195, 203-204) that the notice of claim requirement has no relevancy to actions brought under Labor Law 220(8) contravenes an express statutory requirement by creating a judicially-crafted exception without sufficient justification.

Accordingly, the order of the Appellate Division should be reversed.

 *

Order affirmed, with costs. Opinion by Judge Levine. Judges Simons, Titone and Smith concur. Judge Ciparick dissents and votes to reverse in an opinion in which Chief Judge Kaye and Judge Bellacosa concur.

Decided December 20, 1996

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