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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

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+.

February 28, 2008

Sanctions ordered after lawsuit filed pursuant to the Freedom of Information Law ruled frivolous


In this action, State Supreme Court Justice Gerald Loehr, in an exercise of judicial discretion, imposed sanctions on Scott L. Fenstermaker for what Justice Loehr termed a frivolous lawsuit involving his demands for public records pursuant to the Freedom of Information Law [FOIL].

Fenstermaker had asked Supreme Court to direct the Edgemont Union Free School District to provide copies of all records requested in his FOIL request of January 31, 2006 “at the lowest fee collected by the School District on FOIL requests during the period between the enactment of FOIL until the present” and to edit the material “to eliminate extraneous, irrelevant and superfluous documents” from its response to his FOIL request.

Fenstermaker’s request specified 60 categories of financial records that spanned the period from
January 1, 2001 to December 31, 2003. Susan Shirken, in her capacity as the School District's Records Access Officer, advised Fenstermaker that two items in his FOIL request would not be provided because “they called for a narrative response and not for records,” but the other 58 other requests were granted subject to some of the records being redacted to delete personal information such has home addresses and Social Security numbers.

Shirken also told Fenstermaker that "When the records have been assembled and boxed up, we will, as you have suggested, have them delivered to an outside contractor for duplication at your expense. I encourage you to confer with [the
School District’s counsel] for the purpose of recommending a duplicating contractor for this purpose.” In addition, Fenstermaker was advised that the District would “require that [Fenstermaker] make appropriate advance arrangements to ensure payment … as [the District] cannot permit a situation to develop in which public records might become subject to a contractor's retaining lien for unpaid services.”

Fenstermaker responded, in pertinent part, that:

“We have every intention of using professional copying services equipped to adequately, professionally, and efficiently handle this responsibility. I suggested, in the Request, that [the District’s counsel] and I agree on such a service. I again reiterate that suggestion, notwithstanding your 'requirements.' … ‘As far as ensuring that proper payment arrangements are made we will comply with your requirement that adequate payment arrangements are made. We are confident that, at the conclusion of this matter, we will ultimately be reimbursed by
School District funds.’"

According to the decision, the parties agreed that they would use an outside copying service and anticipated having done by a printer in Manhattan in order to find a facility large enough to properly handle the job, which consisted of duplicating the contents of 48 boxes of original records plus several thousand pages of additional material that had to be copied so that the originals could be returned to working files or redacted.

Subsequently Fenstermaker charged the School District with “having created a situation ‘rife with bribes and kickbacks;' that he was certain that [the District] had already altered or destroyed certain of the requested records; that the District's attorney was operating under a conflict of interest in that he was responsible as counsel for [the District’s] malfeasance; and that he [Fenstermaker] was therefore demanding that the records be sent to a copy service designated by him.”

The District responded that the cost of the records it had copied was $4,666.25, at the rate of $0.25 per page, and that the balance of the requested records would be copied by a duplicating service of the
School District's choice. It also advised Fenstermaker that he could inspect the records before they were sent out for copying but “they would not be sent out at all unless and until Fenstermaker paid for the copies that had already been made and provided suitable security for payment for the copies to be made."

Fenstermaker reviewed the records and did not claim that any of the records were non-responsive. He did not, however, pay for the copies already made.

He then made a second FOIL request, this time seeking a copy of each FOIL application filled with the
School District since the enactment of its FOIL rules and regulations. Shirken granted the request on the condition that the $4,666.25 still outstanding for the copies made pursuant to Festermaker's first FOIL request is paid.

Ultimately Fenstermaker filed an Article 78 petition seeking a court order directing the
School District to provide copies of the records requested in his FOIL request at the lowest fee collected by the School District for FOIL requests during the period between the enactment of FOIL and the present.

In his petition, said the court, Fenstermaker “reiterates that he has offered to pay for the entire cost of the copying.” However, he contends that inasmuch as the photocopying service he regularly employs would have charged only $0.15 per page, the District’s unilateral decision to use a service of its own choosing at a cost of $0.25 per page is arbitrary and capricious.

Justice Loehr said that Public Officers Law §87(l)(b)(iii) authorizes an entity subject to FOIL to charge up to $0.25 per page for copies of records. Moreover, once an agency has determined the number of copies requested, it may require that the fee therefor be paid prior to the reproduction of the records and there is no authority for the proposition that the individual who submitted the FOIL request has any right or say in how or by whom the copies shall be made.

Accordingly, the court decided that “[the District’s] decision to send the records to an independent copying service at statutorily authorized price is more than reasonable given the alternative: releasing these original School District records to a copying service where [Fenstermaker] would have had unsupervised access to them” and denied this aspect of Fenstermaker’s petition.

As to Fenstermaker’s seeking an order directing the School District to eliminate extraneous, irrelevant and superfluous documents from its response to his initial FOIL Request, the court said that “This smacks of bad faith” in that Fenstermaker cites no authority for this proposition and “it is undisputed that he was given more than an ample opportunity to review the literally hundreds of thousands of pages of records which he requested - and which required over 177 hours to collect, copy and redact at an estimated cost in lost staff time to the School District of over $14,500 - in order to cull out those records which he did not want copied.” As Fenstermaker "declined to do so, and in so doing manufactured and perpetuated an issue that could have and should have been resolved then," Justice Loehr denied his request.

As to the District’s advising Fenstermaker that his Second FOIL Request would be granted on the condition that he first pay the $4,666.25 outstanding for the copies made with respect to his First FOIL Request, the court noted that Robert J. Freeman, Executive Director of the Committee on Open Government has issued an advisory Opinion in which he stated:

"If an agency has prepared copies of records in good faith and the applicant fails or refuses to pay the fee, I do not believe that the agency would be required to make available those copies that have been prepared. In my view, it follows that an agency should not be required to honor ensuing requests until the applicant has fulfilled his or her responsibility by tendering the fee for copies previously made." This advisory opinion is posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f9659.htm .

Finding that the District’s decision with respect to Fenstermaker’s Second FOIL Request was neither arbitrary nor capricious but reasonable and in accordance with the law, Justice Loehr denied this aspect Fenstermaker claim and subsequently dismissed his Article 78 petition in its entirety.

Turning to the District’s cross-motion asking that sanctions be imposed on Fenstermaker based on its claim that “this proceeding is frivolous and was filed in bad faith,” the court said that it may, as a matter of discretion, award to any party in any civil action or proceeding costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct. Frivolous conduct, said Justice Loehr, includes the filing of a proceeding that is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.

In this instance the court found that Fenstermaker’s Article 78 action was frivolous as “Each of [the District’s] decisions challenged in this proceeding was supported by statute and administrative rulings and [Fenstermaker] cited no authority to the contrary. Accordingly, in addition to statutory costs to be taxed by the Clerk of the Court, Justice Loehr ruled that Fenstermaker was to pay for the "District’s actual expenses reasonably incurred and reasonable attorney's fees" it incurred in defending this proceeding. Expenses and attorney's fees totaled $15,960.

Fenstermaker’s appealed Justice Loehr's ruling, only to have the Appellate Division, repeating Justice Loehr’s finding, hold that “The frivolous conduct in this case was [Fenstermaker’s] initiation of a proceeding that was completely without merit in law and could not be supported by any reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1 [c] [1]).” The Appellate Division dismissed the appeal.

Justice Loehr's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2006/2006_52652.htm

The Appellate Division’s decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_01343.htm
 

February 24, 2008

Not every criticism is a reprimand



PERB rejected the Union's argument that every written criticism of an employee is a "reprimand" and therefore can only result from "disciplinary action" (Port Jefferson Union Free School District vs United Aides and Assistants, Case U-5713).

The case arose when, in response to an inquiry from the School Superintendent, the school principal made a number of recommendations including one that suggested "the Association ought not be brought in unless the immediate supervisor cannot or will not resolve the (grievance) problem". This was viewed as a criticism of an employee.

The PERB decision is consistent with opinions issued by the Commissioner of Education and the Courts to the effect that letters in an employee's personal file commenting on the employee's conduct or performance the employer found unsatisfactory is not discipline.

February 23, 2008

Impasse procedures follow duty to negotiate


When the City of Newburgh decided to reduce the number of firefighters on each shift from 12 to 11, the Union sought to negotiate the impact of the reduction. 

A number of charges of unfair labor practices were filed by the Union and the City, which were eventually addressed by PERB (Cases U-5649; U-5834; U-5870 and U-6013). Of major significance is PERB's decision that "In settling U-5649, the City assumed an obligation to negotiate the impact of its reduction in force. 

Thus, even if there was a basic contract between the parties whose terms would have relieved the City of an obligation to negotiate the impact of its reduction of forces, the City, by its subsequent agreement to negotiate, waived its right to stand on that contract". 

Further, opined PERB the settlement permitted the impasse procedure to be activated if the parties could not agree. The impasse procedures described in Section 209 of the Civil Service Law apply wherever there is a duty to negotiate and the parties fail to reach agreement according to PERB.


The relationship of a deputy sheriff, criminal, civil or mixed, to the Sheriff


In County of Monroe vs AFSCME, Council 82 (Appellate Division, 1982), another aspect of the relationship was considered when the Monroe County Sheriff dismissed a deputy. The Union claimed the dismissal was in violation of the Taylor Law Agreement then in force, which had been negotiated with the former Sheriff.

Noting that the "civil service status" of those deputies whose duties relate exclusively to the function of the Sheriff in criminal matters was clear, the Court held that a newly elected Sheriff was bound by the negotiated agreement made by his predecessor, but only with respect to those deputies performing criminal functions exclusively. The same was not the case with respect to those deputies who performed, in whole or in part, the civil duties of the office according to the decision.

As to deputies performing some civil functions, the Court said the Sheriff could still be held responsible for the acts of the civil deputies. This was true because the contract provision dealing with the County defending and indemnifying a deputy in any civil matter was "lacking in breath" as the County would be relieved of liability for intentional wrongdoing, gross negligence, failure to cooperate, etc. by so-called "civil deputies."

The Court concluded that the potential liability of the Sheriff exceeded the scope of the indemnification provision in the Agreement and therefore he could not be denied his right to engage only those civil deputies of his own choosing. The case was then returned to the lower court for a determination as to whether the deputy who was dismissed was a "civil deputy" or not. Presumably the dismissal will stand unless it is determined that the deputy performed criminal functions exclusively.

* It should be noted that should a county assume liability for the acts or omissions of a Sheriff’s civil deputies, typically referred to as “Flaherty Amendment" deputies, such personnel would be deemed employees in the classified service of the jurisdiction rather than as personal employees of the Sheriff [see Matter of Flaherty v Milliken, 193 N.Y. 564].

Removal of a record of disciplinary action from a personnel file


A teacher was found guilty of insubordination (refusal to act as a chaperone at a school event) and the disciplinary panel imposed the "penalty of a reprimand, to be expunged from ... (the) records if for the next two years there are no further disciplinary problems of a similar nature". 

The District appealed to the Commissioner of Education (Hyde Park Central School District, Case 10933), claiming the penalty was not authorized by Section 3020-a of the Education Law. 

The Commissioner agreed. He found that the penalty to be imposed is limited to one of the penalties enumerated in the law but that a reprimand is one of the penalties authorized. He then held that the disciplinary board lacked the authority to direct the Board of Education to later expunge the reprimand from the teacher's file for "good behavior". 

The Commissioner then exercised his authority to impose a penalty, and ruled that a reprimand would be appropriate under the circumstances.  

The Attorney General has considered the issue of the election by the employer to remove a reprimand from an employee's file, Opinion of the Attorney General 81-28).

Deputy sheriffs not members of a police force


In Mills vs Phillips, 57 NY 2d 962m the Court of Appeals has upheld a lower Court determination which found that deputy sheriffs serving with the Orange County Sheriff's Department were not "members of the police force of any political subdivision or municipal corporation" within the meaning of Section 3 of the Public Officers Law.

The case arose when the Sheriff terminated two employees because they were not residents of the County.

The Public Officers Law, with certain exceptions for police officers (and a few other special groups), requires public officers to be residents of the jurisdiction in which the officer is to perform his or her official duties.

Presumably deputy sheriffs hold public officer status by reason of their being peace officers. Although all police officers are peace officers, not all peace officers are police officers.

ALCOHOLIC'S 3 MONTH DISCIPLINARY SUSPENSION SUSTAINED


When the Education Law Section 3020-a hearing panel found the teacher guilty of conduct unbecoming a teacher (appearing in the classroom in an intoxicated condition) and imposed a three month suspension as the penalty, the District appealed to the Commissioner of Education contending that the educator should be terminated.*

The Commissioner affirmed the suspension as appropriate in view of the fact that the educator had acknowledged her problem and was dealing with it realistically bu seeking counseling and was participating in Alcoholics Anonymous.

The decision indicates that there was nothing in the record to suggest the teacher would not be satisfactory in the future. Accordingly, said the Commissioner, "there was no basis for increasing the period of ... suspension (imposed) ... which ... should sufficiently impress upon her the gravity of the charges... and the likely consequences that any repetition will jeopardize her future employment in the district."

The Commissioner also noted in the determination was that the disciplinary panel incorrectly viewed as a disciplinary penalty a "letter" in the teacher's file admonishing her for being late to assigned classes and the "docking" of her pay for unexcused absences. The Commissioner indicated that neither constituted discipline and therefore were not "penalties".

Earlier decisions of the Commissioner noted that letters critical of performance were not "disciplinary actions" within the meaning of Section 3020-a.

As to the question of "docking" salary, such action was deemed a natural consequence of an unauthorized or unexcused absence rather than a penalty flowing from discipline.

* See Decisions of the Commissioner of Education, Decision 10,924.

TERMINATED PROBATIONARY EMPLOYEE MUST REQUEST THAT HIS NAME BE RESTORED TO THE ELIGIBLE LIST


The Department of Correctional Services dismissed an employee for failure to satisfactorily complete his probationary period.

Claiming that he was not given the protections provided by Section 50.4 of the Civil Service Law, the former probationer sued (Marventano vs Bahou, Supreme Court, 1982).

The court held Marventano was not denied due process as he failed to exhaust his administrative remedy when he did not request the Civil Service Department to restore his name to the eligible list following his termination by Correctional Services.

The decision indicated that the Rules of the Civil Service Commission provide for such restoration to the eligible list at the discretion of the Department of Civil Service (4 NYCRR 4.5(g)). Not having made such a request, the Court viewed the action brought by Marventano premature and dismissed the CPLR Article 78 petition.

CONTINUATION OF EMPLOYEE ON SICK LEAVE


From time to time an agency may refuse to permit an employee to return from a sick leave because a medical examination finds the employee "has not sufficiently recovered". 

In Michalak vs New York, 88 AD2d 762, the Court was confronted with the question of the effect of an employer's initial refusal to permit an employee to return to work from sick leave, but approving the return some time later. Michalak claimed she should receive back pay because she was wrongfully refused approval to return to her job as her later reinstatement some months later was a concession by the State that her original request to return was improperly denied. 

The Court disagreed and said that the State's voluntary action in reinstating Michalak was based on findings following her re-examination by a physician. The Court said "from this reinstatement we may infer not that the State conceded that its original determination was wrong but only that it later determined Michalak had recovered sufficiently from her illness to return to work." 

As a general rule, the employer can order the employee to be examined and return to work if found sufficiently recovered to do so, another common situation, especially in connection with Workers' Compensation cases.

Correcting a miscalculation of salary


The City of New York admittedly miscalculated the salary paid to a number of its employees.

When the City notified the employees of the error and the method it would use to recapture the overpayment, the employees sued (Salling vs Koch, Supreme Court, 1982). The Court said no. 

The City had fulfilled its due process obligation by giving the employees notice and an explanation of the error it had made and its plans to rectify the mistake. The decision noted that a "small sum ($25)" was to be deducted from the employee's bi-weekly paychecks which was reasonable in contrast to the situation in Feinberg vs Board of Education (51 AD2d 548) cited by Salling. 

In Feinberg, the "adjustment" deprived the teacher involved of salary for a full 30 days, which recoupment was held unreasonable.

Arbitrator's award may not be overturned, even it was wrong in fact or law, unless the findings contravened public policy


An employee was arrested and charged with committing a felony in connection with an "off duty" incident. He later pleaded guilty to a lesser felony. When the employee was discharged, he sought to arbitrate the dismissal. 

The employee had earlier lost his claim for unemployment benefits because the Administrative Law Judge ruled that the employee's acts constituted a violation of the employer's work rules. (His action involved an issue of moral turpitude which brought the employer into disrepute). 

The employer submitted the decision to the arbitrator. Notwithstanding this decision, the arbitrator ruled in favor of the employee and rescinded the termination. The employer appealed to the Court (Village of Valley Stream vs St. George, Appellate Division, 1982). 

The Court held that the question of the "res judicata" effect of the unemployment decision was properly before the Arbitrator, but indicated that the Arbitrator's award could not be overturned, even it was wrong in fact or law, unless the findings contravened public policy. 

Considering the provisions of Article 23-A of the Corrections Law (conviction of one or more crimes should not be a basis for the denial of employment except by a law enforcement agency) together with the fact that St. George had obtained a "relief from civil disabilities", the Court said that the Arbitrator's findings and award did not contravene public policy and upheld the decision.

February 20, 2008

COURT REVIEW OF COMPLAINTS DISMISSED FOR ADMINISTRATIVE CONVENIENCE


As a general rule, Section 297.9 of the Executive Law prohibits the commencement of an action in State court based on the same allegedly discriminatory acts that have been the subject of a complaint filed with the State Division of Human Rights. 

There is an exception to this rule, however. It is possible to file an action in State court even if the same allegations were the subject of a complaint filed with the Division if the Division has dismissed the complaint filed with it for "administrative convenience."

The application of this exception was important in Miller v International Telephone and Telegraph Corp., 545 NYS2d 733. Miller had charged ITT with unlawful discrimination on the basis of age. He first filed a complaint with the Division under the State's Human Rights Law. About a year later he filed an action in Federal court under the Federal Age Discrimination in Employment Act [29 USC 621].

Although the State's Human Rights Law prohibits a person from simultaneously prosecuting a complaint base on the same allegations with the Division and in a State Court, Section 297.9 does not serve as a bar to the simultaneous prosecution of a complaint with the Division and with a Federal Court.

Ultimately Miller's Federal action was dismissed on the grounds that it was untimely filed. Following this, the Division dismissed Miller's complaint, which was still pending before it, "on the grounds of administrative convenience" so as to permit him "to pursue a remedy in State courts" under Section 296 of the Executive Law. When ITT attempted to have the case dismissed, the Supreme Court justice assigned the case denied its motion. The Appellate Division affirmed the lower court's ruling. It said that it has been ruled that "Section 297.9 provides a stay by prohibiting the commencement of suit when a complaint has been filed with the Division." Accordingly, the Statute of Limitations with respect to filing a lawsuit is tolled until the administrative proceeding is terminated.

Thus, it seems permissible for a person to file a lawsuit in State Court based on the same allegations as he or she set out in a complaint filed with the Division if his or her complaint has been dismissed by the Division on the basis of administrative convenience. Further, it appears that if such a suit is filed within the one year period allowed for bringing such an action, adjusted for the time during which the complaint was pending before the Division, the Courts will view it as having been timely filed. However, if the Division has made a determination regarding the complaint on the merits, the individual may not commence a lawsuit based on the same complaint in a State court. In such cases the Division's determination is subject to review by the Appellate Division if a party elects to appeal the decision.

COURT REVIEW OF COMPLAINTS DISMISSED FOR ADMINISTRATIVE CONVENIENCE


As a general rule, Section 297.9 of the Executive Law prohibits the commencement of an action in State court based on the same allegedly discriminatory acts that have been the subject of a complaint filed with the State Division of Human Rights. 

There is an exception to this rule, however. It is possible to file an action in State court even if the same allegations were the subject of a complaint filed with the Division if the Division has dismissed the complaint filed with it for "administrative convenience."

The application of this exception was important in Miller v International Telephone and Telegraph Corp., 545 NYS2d 733. Miller had charged ITT with unlawful discrimination on the basis of age. He first filed a complaint with the Division under the State's Human Rights Law. About a year later he filed an action in Federal court under the Federal Age Discrimination in Employment Act [29 USC 621].

Although the State's Human Rights Law prohibits a person from simultaneously prosecuting a complaint base on the same allegations with the Division and in a State Court, Section 297.9 does not serve as a bar to the simultaneous prosecution of a complaint with the Division and with a Federal Court.

Ultimately Miller's Federal action was dismissed on the grounds that it was untimely filed. Following this, the Division dismissed Miller's complaint, which was still pending before it, "on the grounds of administrative convenience" so as to permit him "to pursue a remedy in State courts" under Section 296 of the Executive Law. When ITT attempted to have the case dismissed, the Supreme Court justice assigned the case denied its motion. The Appellate Division affirmed the lower court's ruling. It said that it has been ruled that "Section 297.9 provides a stay by prohibiting the commencement of suit when a complaint has been filed with the Division." Accordingly, the Statute of Limitations with respect to filing a lawsuit is tolled until the administrative proceeding is terminated.

Thus, it seems permissible for a person to file a lawsuit in State Court based on the same allegations as he or she set out in a complaint filed with the Division if his or her complaint has been dismissed by the Division on the basis of administrative convenience. Further, it appears that if such a suit is filed within the one year period allowed for bringing such an action, adjusted for the time during which the complaint was pending before the Division, the Courts will view it as having been timely filed. However, if the Division has made a determination regarding the complaint on the merits, the individual may not commence a lawsuit based on the same complaint in a State court. In such cases the Division's determination is subject to review by the Appellate Division if a party elects to appeal the decision.

BACK SALARY AWARDED FOR UNLAWFUL DISCRIMINATION


The Commissioner of the State Division of Human Rights determined that the New York City Board of Education had unlawfully discriminated against an employee when it removed him from his position as "interim acting" assistant principal on October 16, 1974. He ordered the Board to pay the employee the difference between what he would have earned as an assistant principal had he not been terminated since October 16, 1974 and what the employee actually earned since that date as "back pay."

The Board objected to the imposition of this penalty and appealed  the Commissioner's determination to the Appellate Division [see Section 298, Executive Law] in an effort to have 
the award vacated [NYC Board of Education v NYS Division of Human Rights (Ordonez), 546 NYS2d 883]. The Appellate Division affirmed the Commissioner's action.

The Court said that the Commissioner had not abuse his discretion in ordering that the award of back pay be calculated at the salary rate of an assistant principal for the period in question. It referred to an earlier ruling in which it had concluded that Ordonez was entitled to the award [NYC Board of Education v NYS Division of Human Rights, 478 NYS2d 942]. The decision also notes that the Commissioner has broad powers to form a remedy for discrimination, including the power, as a matter of discretion,  to order compensatory damages. The Appellate Division concluded that there was substantial evidence to support the Commissioner's determination and approved the computation of the award on based on what Ordonez would have earned as an assistant principal since 1974 had he not been "wrongfully removed" from the position.

 Another aspect of this case is the nature of the award. It appears that the Appellate Division viewed the award as "back salary." However it also noted that the Commissioner has, as a 
matter of discretion, the authority to award "compensatory damages" in such cases. This raises the question of whether there will be any tax liability resulting from the payment of this award to Ordonez. If the award is being made as "back salary," it would probably be processed subject to payroll withholdings for Federal and State income tax, employee contributions for social security and employee contributions for retirement, if any, etc. 

If, on the other hand, the award was made as "compensatory damages,"  the award is probably is not subject to such withholdings. 

That there is a difference between an award of back salary and an award for compensatory damages is illustrated in another age discrimination case, Grumman Aerospace Corporation v NYS Division of Human Rights (Berg), 542 NYS2d 681. In the Grumman case awards for both back salary and for compensatory damages were ordered. 

The Appellate Division upheld both awards by the Commissioner. However, the Court ruled that the award for back salary had been incorrectly computed. According to the decision, the back pay award should have been reduced by any unemployment insurance benefits and severance pay received by Berg subsequent to his termination. In addition, the Appellate Division said that the Commissioner's "award of $50,000 for mental anguish was excessive and [recommended] that on remittitur [to the Commissioner for further consideration], a new award not to exceed $5,000 be made."


BACK SALARY AWARDED FOR UNLAWFUL DISCRIMINATION


The Commissioner of the State Division of Human Rights determined that the New York City Board of Education had unlawfully discriminated against an employee when it removed him from his position as "interim acting" assistant principal on October 16, 1974. He ordered the Board to pay the employee the difference between what he would have earned as an assistant principal had he not been terminated since October 16, 1974 and what the employee actually earned since that date as "back pay."

The Board objected to the imposition of this penalty and appealed  the Commissioner's determination to the Appellate Division [see Section 298, Executive Law] in an effort to have 
the award vacated [NYC Board of Education v NYS Division of Human Rights (Ordonez), 546 NYS2d 883]. The Appellate Division affirmed the Commissioner's action.

The Court said that the Commissioner had not abuse his discretion in ordering that the award of back pay be calculated at the salary rate of an assistant principal for the period in question. It referred to an earlier ruling in which it had concluded that Ordonez was entitled to the award [NYC Board of Education v NYS Division of Human Rights, 478 NYS2d 942]. The decision also notes that the Commissioner has broad powers to form a remedy for discrimination, including the power, as a matter of discretion,  to order compensatory damages. The Appellate Division concluded that there was substantial evidence to support the Commissioner's determination and approved the computation of the award on based on what Ordonez would have earned as an assistant principal since 1974 had he not been "wrongfully removed" from the position.

 Another aspect of this case is the nature of the award. It appears that the Appellate Division viewed the award as "back salary." However it also noted that the Commissioner has, as a 
matter of discretion, the authority to award "compensatory damages" in such cases. This raises the question of whether there will be any tax liability resulting from the payment of this award to Ordonez. If the award is being made as "back salary," it would probably be processed subject to payroll withholdings for Federal and State income tax, employee contributions for social security and employee contributions for retirement, if any, etc. 

If, on the other hand, the award was made as "compensatory damages,"  the award is probably is not subject to such withholdings. 

That there is a difference between an award of back salary and an award for compensatory damages is illustrated in another age discrimination case, Grumman Aerospace Corporation v NYS Division of Human Rights (Berg), 542 NYS2d 681. In the Grumman case awards for both back salary and for compensatory damages were ordered. 

The Appellate Division upheld both awards by the Commissioner. However, the Court ruled that the award for back salary had been incorrectly computed. According to the decision, the back pay award should have been reduced by any unemployment insurance benefits and severance pay received by Berg subsequent to his termination. In addition, the Appellate Division said that the Commissioner's "award of $50,000 for mental anguish was excessive and [recommended] that on remittitur [to the Commissioner for further consideration], a new award not to exceed $5,000 be made."


PARITY PROVISIONS IN TAYLOR LAW AGREEMENTS


Is it lawful for the parties to agree that salary increases to be given to  members of one negotiating union shall be based on salary adjustments negotiated on behalf of members of a different negotiating unit? Such a provision referred to as a "parity clause."  PERB's Counsel was asked for an informal opinion concerning whether such an arrangement was prohibited under the Taylor Law. [Opinion of Counsel, 22 PERB 5008].

According to the inquiry, the employer involved had two negotiating units. A negotiated agreement covering employees in one negotiating unit set a "baseline" salary keyed to a step in the salary schedule contained in Taylor Law agreement covering employees in the other negotiating unit and the salary increase for unit members was determined as a percentage of the baseline.

The opinion stated that PERB had reconsidered its earlier position that a parity clause is prohibited in all circumstances and is now of the view that "[A] parity clause is subject to nullification but is not prohibited per se." 

The opinion indicates that PERB's rationale for concluding that parity agreements are subject to nullification is that such agreements may make it more difficult for the union which has not sought parity to negotiate benefits for the employees that it represents. 

Another reason given to support PERB's position that such a provision was subject to nullification is that these types of agreements impose a duty on the union that has not sought parity to bargain on behalf of the "parity-seeking unit."

PARITY PROVISIONS IN TAYLOR LAW AGREEMENTS


Is it lawful for the parties to agree that salary increases to be given to  members of one negotiating union shall be based on salary adjustments negotiated on behalf of members of a different negotiating unit? Such a provision referred to as a "parity clause."  PERB's Counsel was asked for an informal opinion concerning whether such an arrangement was prohibited under the Taylor Law. [Opinion of Counsel, 22 PERB 5008].

According to the inquiry, the employer involved had two negotiating units. A negotiated agreement covering employees in one negotiating unit set a "baseline" salary keyed to a step in the salary schedule contained in Taylor Law agreement covering employees in the other negotiating unit and the salary increase for unit members was determined as a percentage of the baseline.

The opinion stated that PERB had reconsidered its earlier position that a parity clause is prohibited in all circumstances and is now of the view that "[A] parity clause is subject to nullification but is not prohibited per se." 

The opinion indicates that PERB's rationale for concluding that parity agreements are subject to nullification is that such agreements may make it more difficult for the union which has not sought parity to negotiate benefits for the employees that it represents. 

Another reason given to support PERB's position that such a provision was subject to nullification is that these types of agreements impose a duty on the union that has not sought parity to bargain on behalf of the "parity-seeking unit."

ARBITRATION AND UNLAWFUL DISCRIMINATION


An employee sustained a job-related injury and was out of work for about two months. He was then found fit to return to work and did so. On his second day on the job  following the accident his supervisor asked him to work two hours overtime after the completion of his regular work shift. The employee refused to work overtime, claiming that he still did not feel "one hundred percent" and left work at the end of his scheduled shift.

The next day he was told that he was terminated because of his refusal to comply with his supervisor's request that he work overtime.  The employee challenged his dismissal and an arbitration hearing was held in accordance with the union contract. The arbitrator ruled that the employee had been terminated for "just cause."

The employee then sued the employer, claiming, among other things, that he fired solely because of a physical impairment in violation of the Human Rights Law [Uryevick v Pepcom Industries, Inc., 547 NYS2d 109]. Pepcom asked the Court to dismiss the case on the grounds that it had been decided on the merits by an arbitrator.

The Appellate Division, Second Department, said that the determination of the arbitrator did not preclude Uryevick from commencing a separate, independent action based on a theory of unlawful discrimination in employment. It said that "although generally an arbitrator's award is given preclusive effect in a subsequent judicial proceeding, arbitration is an inappropriate forum for the disposition of an employment discrimination claim."

The Court indicated that here the arbitrator's sole task was to effectuate the intent of the parties in connection with the collective bargaining agreement and not to consider a statutory claim of unlawful discrimination. The Appellate Division then said that "the violation of these contractual and statutory rights by the same factual occurrence does not vitiate their separate nature."

The  decision concludes with the observation that although the State's Human Rights Law prohibits employers from discriminating against an individual who is disabled, a person whose condition prohibits him or her from performing his or her employment duties "in a reasonable manner" is not considered disabled under the statute. Accordingly, the Appellate Division said that it was necessary to hold a hearing to establish the facts as to this issue.

This case also illustrated the "election of forums" that New York's Human Rights Law makes available to individuals claiming to have suffered unlawful discrimination. A person claiming unlawful discrimination may file his or her complaint with an administrative agency such as the State Division of Human Rights. In the alternative, the individual may elect to initiate a lawsuit in State Supreme  Court seeking redress for the alleged acts of unlawful discrimination. However, the individual may not do both.]

ARBITRATION AND UNLAWFUL DISCRIMINATION


An employee sustained a job-related injury and was out of work for about two months. He was then found fit to return to work and did so. On his second day on the job  following the accident his supervisor asked him to work two hours overtime after the completion of his regular work shift. The employee refused to work overtime, claiming that he still did not feel "one hundred percent" and left work at the end of his scheduled shift.

The next day he was told that he was terminated because of his refusal to comply with his supervisor's request that he work overtime.  The employee challenged his dismissal and an arbitration hearing was held in accordance with the union contract. The arbitrator ruled that the employee had been terminated for "just cause."

The employee then sued the employer, claiming, among other things, that he fired solely because of a physical impairment in violation of the Human Rights Law [Uryevick v Pepcom Industries, Inc., 547 NYS2d 109]. Pepcom asked the Court to dismiss the case on the grounds that it had been decided on the merits by an arbitrator.

The Appellate Division, Second Department, said that the determination of the arbitrator did not preclude Uryevick from commencing a separate, independent action based on a theory of unlawful discrimination in employment. It said that "although generally an arbitrator's award is given preclusive effect in a subsequent judicial proceeding, arbitration is an inappropriate forum for the disposition of an employment discrimination claim."

The Court indicated that here the arbitrator's sole task was to effectuate the intent of the parties in connection with the collective bargaining agreement and not to consider a statutory claim of unlawful discrimination. The Appellate Division then said that "the violation of these contractual and statutory rights by the same factual occurrence does not vitiate their separate nature."

The  decision concludes with the observation that although the State's Human Rights Law prohibits employers from discriminating against an individual who is disabled, a person whose condition prohibits him or her from performing his or her employment duties "in a reasonable manner" is not considered disabled under the statute. Accordingly, the Appellate Division said that it was necessary to hold a hearing to establish the facts as to this issue.

This case also illustrated the "election of forums" that New York's Human Rights Law makes available to individuals claiming to have suffered unlawful discrimination. A person claiming unlawful discrimination may file his or her complaint with an administrative agency such as the State Division of Human Rights. In the alternative, the individual may elect to initiate a lawsuit in State Supreme  Court seeking redress for the alleged acts of unlawful discrimination. However, the individual may not do both.]

FREEDOM OF INFORMATION IN DISCIPLINARY ACTIONS


The release of information related to a disciplinary proceeding is a concern to both employers and employees. While an employee who has been served with disciplinary charges may decide to make such action public, the employer, especially if the employer is a law enforcement agency, is generally reluctant to disclose the fact that it has served disciplinary charges against a staff member and the reasons for such action.

When a newspaper learned that a City of Utica firefighter had been suspended, it asked the City for information concerning any disciplinary action being taken against the individual. The City refused to provide any information concerning any pending disciplinary action and, in addition, it refused to give the newspaper access to any City records concerning the matter. The City told the newspaper that the records it wished to obtain "constitute personnel records used to evaluate performance" and cited Section 50-a of the Civil Rights Law and Section 87(2-a) of the Public Officer Law as authority for rejecting the newspaper's request.

The newspaper then sued the City claiming it had violated the Freedom of Information Law. The newspaper asked for a court order compelling the City to release the requested information to it [Rome Sentinel Company v City of Rome, 546 NYS2d 304]. The City objected to releasing the material, arguing (1) the Sentinel was not entitled to documents concerning the suspension of a municipal employee; (2) the employee had a right to privacy that the City had an obligation to protect; and (3) the Sentinel failed to show that the records it sought "are clearly of significant interest to the general public."

Justice Shaheen said that the Freedom of Information Law establishes  "specific, narrowly construed instances where disclosure will not be ordered." For example, an agency may deny access  to records which are inter-agency or  intra-agency materials and which are not final agency determinations. The Court said that "under this exemption, the Sentinel would not be entitled to accusations or complaints of misconduct against the fireman; however it would be entitled to the final agency determination  concerning his suspension, unless that determination is further protected by Section 50-a of the Civil Rights Law as a fireman's personnel records which are used to evaluate his performance."

The Court said that in balancing the privacy rights of the employee against the public's right to know and considering the decisions in Capital Newspapers v Burns, 67 NY2d 562 and Gannett Co., Inc. v James, 86 AD2d 567, it found that the newspaper was "entitled to disclosure of the final determination in this fireman's  suspension hearing, without disclosing all the supporting allegations, complaints or witness names."

FREEDOM OF INFORMATION IN DISCIPLINARY ACTIONS


The release of information related to a disciplinary proceeding is a concern to both employers and employees. While an employee who has been served with disciplinary charges may decide to make such action public, the employer, especially if the employer is a law enforcement agency, is generally reluctant to disclose the fact that it has served disciplinary charges against a staff member and the reasons for such action.

When a newspaper learned that a City of Utica firefighter had been suspended, it asked the City for information concerning any disciplinary action being taken against the individual. The City refused to provide any information concerning any pending disciplinary action and, in addition, it refused to give the newspaper access to any City records concerning the matter. The City told the newspaper that the records it wished to obtain "constitute personnel records used to evaluate performance" and cited Section 50-a of the Civil Rights Law and Section 87(2-a) of the Public Officer Law as authority for rejecting the newspaper's request.

The newspaper then sued the City claiming it had violated the Freedom of Information Law. The newspaper asked for a court order compelling the City to release the requested information to it [Rome Sentinel Company v City of Rome, 546 NYS2d 304]. The City objected to releasing the material, arguing (1) the Sentinel was not entitled to documents concerning the suspension of a municipal employee; (2) the employee had a right to privacy that the City had an obligation to protect; and (3) the Sentinel failed to show that the records it sought "are clearly of significant interest to the general public."

Justice Shaheen said that the Freedom of Information Law establishes  "specific, narrowly construed instances where disclosure will not be ordered." For example, an agency may deny access  to records which are inter-agency or  intra-agency materials and which are not final agency determinations. The Court said that "under this exemption, the Sentinel would not be entitled to accusations or complaints of misconduct against the fireman; however it would be entitled to the final agency determination  concerning his suspension, unless that determination is further protected by Section 50-a of the Civil Rights Law as a fireman's personnel records which are used to evaluate his performance."

The Court said that in balancing the privacy rights of the employee against the public's right to know and considering the decisions in Capital Newspapers v Burns, 67 NY2d 562 and Gannett Co., Inc. v James, 86 AD2d 567, it found that the newspaper was "entitled to disclosure of the final determination in this fireman's  suspension hearing, without disclosing all the supporting allegations, complaints or witness names."

February 11, 2008

INCREASING THE LENGTH OF THE MAXIMUM PROBATIONARY PERIOD FOR POSITIONS IN A CERTAIN TITLE IN THE CLASSIFIED SERVICE


The New York City Police Department decided to change the initial probationary period for police officers from eighteen months to two years. The Union challenged the decision and asked the Courts to annul the determination [Caruso v Ward, 546 NYS2d 853]. The Appellate Division upheld the Department's changing the term of the probationary period for newly appointed police 
officers, citing a number of reasons for its ruling.

The Court said that the Union: (1) had failed to show that it had a clear legal right to the relief it sought [reversion to the 18 month probationary period] and (2) it did not present any evidence of bad faith, illegality or arbitrary action by the Department. The Appellate Division then said that "the decision to enlarge the probationary period was rationally related to the goal of more thorough evaluation of [a] new officers' fitness for duty" and denied the appeal.


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