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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, 2008

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.


July 29, 2008

Unlawful extensions of temporary appointments


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

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

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

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

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

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

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

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

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

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

Unlawful extensions of temporary appointments


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

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

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

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

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

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

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

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

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

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

Calculating the salary due the educator when the educator goes on leave without pay


Calculating the salary due the educator when the educator goes on leave without pay
Carr v Wilson CSD, Decisions of the Commissioner of Education, Decision 13716

If a teacher works less than a full month, can the school district pay him or her a "prorata amount" in consideration of the days he or she actually worked? As the Carr decision demonstrates, it depends whether or not the teacher performed "all services required" during the period in question.

Maryalice Carr asked for, and received, approval for an unpaid 18-month leave of absence for "child care reasons" commencing February 26, 1996. However, Carr wrote the Superintendent on February 26, 1996 requesting to return to work on March 25, 1996.

The Superintendent received Carr's letter on March 1, 1996. On March 7, 1996 Carr was told that since her request was not timely received, she could return to work on April 15, 1996, provided the required "physician's release" was received on or before March 15, 1996.

NOTE: The decision indicates that under the terms of the collective bargaining agreement Carr was entitled to resume work on April 8, 1996 as her letter asking for reinstatement was received by the Superintendent on March 1, 1996 and the required physician's statement was received by the District on March 8, 1996. The agreement essentially provided that a teacher may return to work following the termination of the pregnancy, provide that the teacher gives the superintendent at least 30 days notice and a statement from her physician authorizing the reinstatement.

Carr reported for work on April 15 and "rendered services on each of the twelve working days that teachers were required to work during the month of April" -- April 15-19; April 22-26 and April 29-30. The District, however, paid Carr a "prorated salary" for the month of April, deducting 10 days pay from her regular salary. When the District refused to pay her a full-month's salary for April, she appealed to the Commissioner of Education.

The Commissioner determined that Carr had been underpaid because she had "rendered services for all days in which the teacher was required to work." The provisions of §3101(3) of the Education Law dealing the "prorating the salary of a teacher" are triggered in cases where a teacher does not render all of the services required of teachers during such period.

The Commissioner commented that Wilson would not have received any more service from Carr had she been reinstated on April 1, 1996, as teachers in the District were required to work only 12 days during April and all their work was provided between April 15 and April 30.

Viewed from another prospective, had Carr been restored to the payroll on March 26, 1996 as she originally requested, she would have received the appropriate prorata salary for her services during March. She then would have been entitled to her full salary for April but would not have provided the District with any more service in April than she actually provided upon her reporting for work on April 15.

Concluding that regardless of whether Carr's actual date of reinstatement was April 8 or April 15 she was entitled to full payment for the month of April as a matter of law, the Commissioner directed the District to pay her the amount it deducted from her April paycheck.

Automatic termination of employment

Automatic termination of employment
Aviles v Bratton, NYS Supreme Court, Not selected for publication in the Official Reports

In the Aviles case, the New York City Police Department prevailed in firing a tax-dodging officer even though the City cited the wrong law in making its case.

Aviles was removed from his position as a New York City Police Officer after he pleaded guilty to the charge of Willful Failure to File a Return or Report - Sales and Compensating Use Taxes, in violation of §1817(a) of the New York Tax Law, a misdemeanor.

Aviles claimed that he was advised by his PBA representative that it would be in his best interest to plead guilty to the tax charge and that he would be given an administrative hearing for the purposes of discipline. He contended that his dismissal was improper because he was not, in fact, given a hearing pursuant to §14-115(a) of New York City's  Administrative Code. The Department, on the other hand, contended that §14-115 does not require that a hearing be held once a police officer has been convicted of a criminal offense.

The Court agreed with the Police Department that  §14-115(a) gives the Police Commissioner the discretion to discipline and/or discharge an officer convicted of "any criminal offense, or ... immoral conduct ...." But the Court said that the Department was incorrect when it claimed no hearing was required. The Court that §14-115(a) requires that the employee be provided with both written charges and an opportunity to be heard before he or she may be disciplined.

This did not end the matter, however. "No mention was made of Public Officers Law §30(1)(e)" in this action, the Court noted. §30(1)(e) provides for the automatic forfeiture of public office upon a public officer's conviction of either a felony or a crime involving a violation of the officer's oath of office.

NOTE: A police officer is a public officer for the purposes of §30. See Hodgson v McGuire, 75 AD2d 763.

The Court then confronted two questions:  (1) May the Court rely on §30(1)(e) even though none of the parties mentioned the law? and (2) Did Aviles violate 30(1)(e) and thereby make himself subject to automatic dismissal?

With regard to the first question, the Appellate Division decided that Police Department's failure invoke §30 did not prevent courts from applying its provisions in an appropriate situation.

With regard to the second question, Aviles violated the law if he either committed a felony or violated his oath of office. Because Aviles pleaded guilty to a misdemeanor, the question became whether he violated his oath of office. Also significant was the fact that the misdemeanor did not involve Aviles' conduct as a police officer but an outside interest.

The Court said that with respect to misdemeanor convictions arising outside the line of duty, Public Officers Law §30(1)(e) applies to crimes. Which crimes? Crimes  which, as defined by statute, arise from knowing or intentional conduct which evinces a lack of moral integrity [Duffy v. Ward, 81 NY2d 127.] The Court decided that willful failure to file a tax return or receipt is a crime which evinces a lack of moral integrity. Therefore, the Court concluded that Aviles was automatically removed from public office as mandated by §30(1)(e). Further, the Court noted, strong public policy in favor of vacating the office of a public officer convicted of a violation of his oath of office.

Holding that Aviles forfeiting his position even though the Department did not invoke the provision when it discharge him, the Court said that Aviles' office was automatically vacated when he entered his plea and no hearing was required.

The full opinion follows:

        MATTER OF AVILES v. BRATTON 

Petitioner, a former police officer with the New York City Police Department, brings this proceeding pursuant to Article 78 of the CPLR challenging his dismissal from the Police Department. Respondents the New York City Police Department (the "Police Department"), et al, cross-move to dismiss the petition for failure to state a cause of action.

On or about March 22, 1995, petitioner was arrested and charged with Forgery in the Second Degree, Offering a False Instrument in the First Degree; Criminal Possession of a Forged Instrument in the Second Degree; Making an Apparently Sworn False Statement in the First Degree, and Making a Punishable False Written Statement, all in violation of the New York Penal Law. On August 15, 1995, petitioner pled guilty to the crime of Willful Failure to File a Return or Report -Sales and Compensating Use Taxes, in violation of §1817(a)of the New York Tax Law1. Petitioner alleges that he was advised by his PBA representative that it would be in his best interests to plead guilty to the Tax Law charge and that he would be given an administrative hearing. Petitioner was discharged without a hearing by the Police Department Commissioner on October 13, 1995, pursuant Co §14-115(a) of New York Administrative Code. No mention was made of Public Officers Law §30(1)(e),which provides for the automatic forfeiture of office upon a public officer's conviction of either a felony or a crime involving a violation of the officer's oath of office.

Petitioner asserts, inter alia, that his dismissal was improper because he was not given a hearing and because the punishment is excessive. The Police Department asserts that Administrative Code §14-115 does not require that a hearing be held once a police officer has been convicted of a criminal offense.

§14-115(a) gives the Police Commissioner the discretion to discipline and/or discharge an officer convicted of "any criminal offense, or ... immoral conduct ...." Contrary to the Police Department's argument, however, this §requires that such dismissal or other disciplinary action be taken upon both written charges and an opportunity to be heard. Blindbury v. Bratton, Index No. 116937/95 (Sup. Ct. N.Y. Co., January 3, 1996, Sklar, J.).By contrast, Public Officers Law §30(1)(e) provides for the automatic termination of a public officer's position without the right to a hearing upon the officer's conviction of either a felony or a "crime involving a violation of his oath of office." A police officer is a "public officer" for purposes of Public Officer's Law §30(1)(e). Hodgson v. McGuire, 75A.D.2d 763 (1st Dept. 1980). For misdemeanor convictions arising outside the line of duty,Public Officers Law §30(1)(e) applies to crimes which, as defined, by statute arise from knowing or intentional conduct which evinces a lack of moral integrity. Duffy v. Ward, 81N.Y.2d 127 (1993). A crime which demonstrates a lack of moral integrity is one which involves "willful deceit or a calculated disregard for honest dealings." Id. at 135.

 The willful failure to file a tax return or receipt is a crime which, under the above definition, evinces a lack of moral integrity, and thus Public Officers Law §30(1)(e) is implicated. Moreover, "[b]ecause of the strong public policy in favor of vacating the office of a public officer convicted of a violation of his oath of office ... forfeiture was not waived by respondent's failure to invoke the statute at the time of petitioner's dismissal or to assert it in the... Article 78 proceeding ...." Hodgson v. McGuire, supra at 821. Since the petitioner's office was automatically vacated, no hearing was required.

 Accordingly, the application is denied and the cross motion to dismiss the petition is granted, without costs. 

This constitutes the decision and judgment of the court.

Notes (1) §1817(a) provides that "[a]ny person required under article twenty-eight of this chapter to make a return or report ... who willfully fails to make such return or report ... shall be guilty of a misdemeanor.

Abolishing a government entity


Abolishing a government entity
PERB Advisory Opinion

Does the Taylor Law require a town to "decision bargain" with the union concerning the dissolution of a town-wide water district and the sale or lease of the facility to a public authority?

PERB's general counsel said in an advisory opinion that  "decision bargaining" was not required by the Taylor Law, citing a ruling by PERB [4 PERB 3060] holding that a  decision of a public employer with respect to the carrying out of its mission, such as a decision to eliminate or curtail a service, are matters that a public employer should not be compelled to negotiate with its employees.

However, PERB will look to the level of control exercised by the public employer in determining whether the service in question has been eliminated or the performance of the activity merely transferred to an agent of the public employer.

Where the public employer does not retain any authority, discretion or control over the operation eliminated and the operator, if any, there is no duty to bargain its decision to eliminate the service.

Vacating an arbitration award

Vacating an arbitration award
Obot v NYS Dept. of Corr. Services, 89 N.Y.2d 883

Otu A. Obot, a correction officer with a 14-year record of service, was terminated from his position after being found guilty in a disciplinary arbitration.

The charge: Obot had falsely accused another employee of having sexual relations with an inmate.

Obot sued in an attempt to vacate the arbitration award, contending, for the first time, that the disciplinary charges against him had been initiated to retaliate for his having testified in a federal court action regarding pervasive racial bias at a Corrections Department facility. According to Obot, he had not raised this argument in the arbitration proceeding because his union attorney had "listened to none of this, had no time for it and wanted [him] to plead guilty."

A State Supreme Court vacated the arbitration award only to have it reinstated by the Appellate Division on appeal. The Court of Appeals affirmed the Appellate Division's ruling, agreeing that Obot's "submissions does not demonstrate a cognizable legal basis for vacating the outcome of the arbitration proceeding."

Obot raised two arguments in his petition: a. The arbitration award is violative of public policy because of its retaliatory motive; and b. The award should be vacated because of corruption, fraud or misconduct in procuring the award.

The Court of Appeals rejected both claims, noting that the first was an issue for the arbitrators to resolve and thus should have been brought up during the arbitration proceeding.

The Court held the second, in which Obot claimed that he was denied "fair representation" by the union, was raised in the wrong forum and should have been presented, initially at least, to PERB.

Justice Ciparick dissented, holding that the arbitration award should be vacated "[B]ecause of the strong public policy decrying retaliatory discharges, expressed in Civil Service Law §75-b(2), together with the public policy, as articulated by the Supreme Court, recognizing an exception to the finality of arbitral awards procured at the expense of the employee's right to fair representation.

Undercover police personnel testifying in court


Undercover police personnel testifying in court
Steven Ayala v Hubert Speckard, 102 F.3d 649, affirmed upon rehearing in banc, 131 F.3d 62

In this rehearing regarding a July 15, 1996 decision [see 89 F3d 91] by the U.S. Circuit Court of Appeals, the Court ruled that undercover police personnel do not have an absolute right to demand a "closed court room" when testifying.

The Court said that "efficient law enforcement and the right to a public trial may at times be incompatible."

However, a trial court must consider, and if feasible, adopt "less drastic alternatives" to closing the court room.

The case concerned Steven Ayala, who was convicted on drug charges. An undercover police officer testified against him after the trial court approved closing the court room to the public in order to protect the identity of the uncover officer to whom Ayala sold crack cocaine.

While the Circuit Court said that it was aware of the "scourge of illegal drugs in our society, and the importance of governmental efforts to fight their proliferation," those efforts do not independently justify improper courtroom closure.

Here, said the Court, by closing the courtroom to the public "Ayala was deprived of his Sixth Amendment right to a ... public trial (made applicable to the states by the Fourteenth Amendment," citing the Oliver case [333 U.S. 257, 273].

The Circuit Court explained that in its view there are four things that must occur before a courtroom can be closed without violating the Sixth Amendment:

(1) The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced if the courtroom is not closed. (2) The closure must be no broader than necessary to protect that interest. (3) The trial court must consider reasonable alternatives to closing the proceeding. and (4) The Court must make findings adequate to support the closure.

Here the Court decided that the state failed to show a "substantial probability" that the undercover police officer's safety would be prejudiced were he to testify in open court. The Court tempered this statement by noting:

 It in no way it directing that undercover agents identify themselves in each and every trial but merely that "the trial court find after sufficient argument or hearing that there was a substantial probability that by testifying in open court the undercover agent's safety would be endangered, or that such a substantial probability reasonably can be inferred from facts put forward by the state.


Among the alternatives suggested in the opinion: (a) a strategically placed chalkboard may have allowed the public into the courtroom without seeing the identity of the undercover officer; (b) to ask the accused whom he or she wanted in the courtroom, then ask the State to show why any such person should not be present; and (3) to have the police officer conceal his or her identity in some manner, such as disguise. 

Standing to sue

Standing to sue
Volpicello v Nassau County, NYS Supreme Court, Not selected for publication in the Official Reports

If a member of a collective bargaining unit is unhappy with the way a provision set out in a Taylor Law agreement is being applied, may he or she sue the employer? This was the major issue in the Volpicello case.

Volpicello, together with two other employees, Galvin and Dane, sued the Nassau County Sheriff's Department, contending that it had violated the terms of §25-5 of the 1990-92 collective bargaining agreement between Nassau and CSEA. The complaint alleged that the Department placed employees who had been promoted on the wrong step of the salary plan.

§25-5 of the agreement provided that "when an employee is either promoted or changed to a position in higher salary grade, the employee shall receive the salary closest to but not less than the salary he/she would have received in his/her present grade on the January 1 following such change in position according to Graded Service Salary Plus A, B and C, in effect at the time of such change."

The Department's response, in addition to arguing that the three did not have standing to bring "a class action" concerning their claims, maintained that:

(1) It used the procedure for determining the appropriate step for persons promoted or upgraded set out in the agreement;

(2) The procedures set out in §25-5 used to make such determinations had remained unchanged since 1979;

(3) CSEA  had not successfully bargained for modification of the language of §25-5;

(4) An arbitrator had ruled that the Department's method of applying §25-5 did not violate the collective bargaining agreement.

The Court ruled that class certification is inappropriate here because "only the parties to the underlying Agreement, i.e. the County and the plaintiff CSEA have a legal right to sue for enforcement of rights under the Agreement," citing Clark v County of Cayuga, (212 AD2d 963.

The decision pointed out that members of a collective bargaining unit cannot sue for alleged violations of the agreement unless (a) the agreement permits it or (b) if the union fails to represent an employee fairly.

Noting that the complaint did not allege      that the union failed to represent the individual plaintiffs fairly, the court said that three "lack the legal capacity to sue and therefore have no standing to maintain this action in their own right."

The Court dismissed the action, holding that "the County of Nassau has not breached the 1990-1992 agreement with the CSEA."

Ratification of a collective bargaining agreement


Ratification of a collective bargaining agreement
Bd. of Ed. v Buffalo Teachers Fed., 89 N.Y.2d 370

The Court of Appeals has unanimously held that §201.12 of the Civil Service Law, which states that "any provisions ... which require approval by a legislative body ... shall become binding when the appropriate legislative body gives its approval, does not provide an employer with an 'escape hatch' from negotiated, agreed-upon contract terms, especially after the members of a collective bargaining unit have ratified the agreement."

The ruling concludes that for the purposes of negotiating agreements pursuant to the Taylor Law the employer may not wear two hats by serving as the "negotiating party" and later as the "legislative body" having the authority to ratify the agreement earlier arrived at by the parties.

The case arose out of a dispute in Buffalo. In 1990 negotiating teams for the Buffalo Federation of Teachers [BFT] and Buffalo School District [District] reached a four-year agreement. The union membership ratified this agreement on September 3, 1990. When the Buffalo School Board refused to approve the agreement, the Union filed an improper practice charge with the Public Employment Relations Board (PERB) in October 1990, charging that the District had not bargained in good faith.

PERB sustained the charge and directed the District to sign the agreement as negotiated and ratified by the Federation. After attempts to overturn PERB's decision failed, the Buffalo City School Board adopted a resolution providing that "the Superintendent of Schools shall execute on behalf of this District, upon BTF's demand, a document embodying the agreements reached." 

However, the Board also resolved that "pursuant to Civil Service Law §204-a.1 the Buffalo Teachers Federation be notified that by the adoption of this Resolution, this Board of Education does not legislatively approve the said agreements and will not implement the said agreements by providing the additional funds therefor."
    
The Court of Appeals decided that here the Board did not have an additional legislative approval role within the meaning of Civil Service Law 201(12) and 204-a(1). According to the ruling, the Board, having directed the execution of the 1990 agreement, possessed no residual statutory power to frustrate the fulfillment of the otherwise validly adopted agreement.

The Court rejected the Board's contention that the allocation of salary levels and salaries of its teachers was inherently a legislative activity. It also rejected BFT's claim that in allocating funds for teacher salaries Board exercised an executive rather than legislative power.

Instead, the Court of Appeals said it was deciding the case as a matter of law, commenting that "the Board has not identified any further legislative action that it must perform under the pertinent statutes with respect to the salary provisions of the agreement" concluding that "... further approval by it is not needed for implementation of this agreement."

In effect, the Court ruled that once the Board directed the Superintendent to sign the agreement, no further action on its part was required to implement the terms of the contract.

Also noted was the fact that the teachers, following their ratification of the contract, were bound to all the contracted terms, including "give backs" and good faith disclosure of their entire negotiating position on all terms and conditions of their employment.

According to the ruling, the Board's reading of the Taylor Law would create a "sandbag" disincentive against employee organizations agreeing "to be bound for several years by compensation provisions of a collective bargaining agreement that did not also bind the employer." 

Such an interpretation, said the Court, would leave employees at the mercy of a profoundly flawed and unfair collective bargaining procedure. "The Legislature could not have intended this, and we conclude it did not." This would create "... a tilted field of management-labor relations"  that would plainly conflict with the pervasive policy and other explicit terms of the Taylor Law designed to secure amicable, negotiated, long-term agreements."

How might this ruling impact on other public employers such as the State of New York where the executive, legislative and judicial branches of government are clearly separated?

Presumably the Court of Appeals would  differentiate between a school board simultaneously acting as the legislative body/employer, and the State legislature on the basis that the latter is an independent entity clearly distinguishable from the State's executive branch, which negotiates Taylor Law agreements.

The full opinion of the Court follows:
     

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



4         No.   232
Board of Education for the City
School District of the City of
Buffalo,
                   Respondent,
          v.

Buffalo Teachers Federation,
Inc.,
                   Appellant.




Robert H. Chanin, for appellant.
Karl W. Kristoff, for respondent.
Civil Service Employees Association, Inc.;
Buffalo Council of Supervisors and Administrators;
New York State United Teachers;
New York State School Board Association, Inc., amici curiae.



BELLACOSA, J.:

          Defendant Buffalo Teachers Federation, Inc., (Union)
appeals from an order of the Appellate Division.  It affirmed a
judgment of Supreme Court declaring that plaintiff, Board of
Education for the City of Buffalo (Board), is not obligated to
approve or fund the collective bargaining agreement reached by
the parties in September 1990.  At the center of this
longstanding dispute are provisions in the Taylor Law (Civil
Service Law 201[12], 204-a[1]), as applied to the negotiated
salary provisions contained in the controverted agreement. 

          On or about September 1, 1990, negotiating teams for
the Union and Buffalo School District reached a four-year
agreement, which the union membership ratified on September 3,
1990.  Prior to the Superintendent's execution of the proposed
agreement, it was considered by the Board, which by a 5-4 vote
then refused to give its approval on September 26, 1990.  The
Union filed an improper practice charge with the Public
Employment Relations Board (PERB) in October 1990.  The charge of
failure to bargain in good faith stemmed from allegations that
the School District's Chief Negotiator sought from the outset to
undermine the agreement and that this tactic led to the Board's
ultimate narrow rejection of the pact.  On September 23, 1991,
PERB sustained the improper practice charge, and ordered "that
the District execute, upon BTF's demand, a document embodying the
agreements reached by the parties" (24 PERB 3033, at 3068).
PERB declined to order that the Board implement the agreement,
however, on the ground that it lacked jurisdiction to direct that
remedy.

          The Board started a judicial proceeding to nullify the
PERB determination, but the Appellate Division unanimously
confirmed it (Matter of Board of Educ. for the City School Dist.
of the City of Buffalo v Buffalo Teachers Fedn., Inc., 191 AD2d
985 [1993], lv denied 82 NY2d 656).  The court "dismiss[ed] the
action for a declaratory judgment as premature," noting that
"[t]here is no evidence that [the Board] will not implement the
provisions of the agreement upon execution" and declined to order
such relief in light of the fact that "the record is not
developed regarding the issue of legislative approval" (id., at
986).

          Thereafter, on September 22, 1993, the Board passed a
resolution that "the Superintendent of Schools shall execute on
behalf of this District, upon BTF's demand, a document embodying
the agreements reached."  The Board also, nevertheless, resolved
that "pursuant to Civil Service Law §204-a.1 the Buffalo
Teachers Federation be notified that by the adoption of this
Resolution, this Board of Education does not legislatively
approve the said agreements and will not implement the said
agreements by providing the additional funds therefor."

          The Board then returned to court in the action now
before us, seeking a declaration that it was under no obligation
to legislatively approve of, or provide for, the funding
necessary for the increased salaries under the executed 1990
agreement.  The Union counterclaimed for a declaration that the
Board was obligated to implement the agreement, as duly executed
by the parties in accordance with the confirmed PERB directive,
retroactive to July 1, 1990.

          On cross motions for summary judgment, Supreme Court
granted the Board's motion and declared that the Board had no
obligation to "legislatively approve or implement [the agreement]
by funding;" it denied the Union's cross-motion and dismissed the
counterclaim.  The Union appealed and the Appellate Division
affirmed (217 AD2d 366).  The court held that the prior PERB
order requiring the District Superintendent to execute the
agreement did not effect a legal waiver of the Board's
additionally reserved power to approve the agreement (id., at
373).  The court reasoned that although the Board cannot levy
taxes, it does possess the authority to allocate funds and such
power is legislative (id., at 374).

          This Court granted the Union leave to appeal and we now
reverse the order of the Appellate Division.  We conclude that,
in this case, the Buffalo Board has not established a right to an
additional legislative approval role within the meaning of Civil
Service Law 201(12) and 204-a(1).  The Board directed the
execution of the 1990 agreement (after it litigated the PERB
phase of the matter) and has not shown that it is required to
perform any further legislative action.  Thus, it possesses no
residual statutory power to frustrate the fulfillment of the
otherwise validly adopted agreement. 

          Resolution of this purely statutory construction
controversy turns essentially on whether the Taylor Law
prescribes a legal condition subsequent to an adopted contractual
obligation related to salary provisions embodied within this
agreement.  Our analysis focuses on the interpretation of the
1969 amendments (L 1969, ch 24).  Certain provisions of public
sector collective bargaining agreements require legislative
action for their implementation and are effective only when the
appropriate legislative entity discretely votes to approve them.
Notably, an "agreement" is defined as "the result of the exchange
of mutual promises between the chief executive officer of a
public employer and an employee organization which becomes a
binding contract, for the period set forth therein, except as to
any provisions therein which require approval by a legislative
body, and as to those provisions, shall become binding when the
appropriate legislative body gives its approval" (Civil Service
Law 201[12] [emphasis added]).  "[L]egislative body of the
government" is defined as including a board of education (Civil
Service Law 201[11]), and "'chief executive officer' in the case
of school districts" is defined as the superintendent of schools
(Civil Service Law 201[10]).

          Pertinently, the Taylor Law requires that agreements
between public employers and unions contain a clause stating in
part that "any provision of this agreement requiring legislative
action to permit its implementation by amendment of law or by
providing the additional funds therefor, shall not become
effective until the appropriate legislative body has given
approval" (Civil Service Law 204-a[1] [emphasis added]).  The
agreement in this case contains this statutorily mandated clause
and also includes a provision, not independently relied on by the
Board here, that it was "subject to formal adoption by the Board
at a meeting of the Board to be held as soon as possible."

          The enactment history behind the 1969 Taylor Law
amendments indicates that the approval mechanism was added to
"obviate confusion as to the effect of an agreement between an
employer and employee organization by making clear (through a
change in the definition of 'agreement' and by requiring notice
to all employees) that legislative action is needed before the
agreement becomes effective as to those provisions requiring
legislative approval such as, for example, the appropriation of
funds for salaries" (Mem of Senate Rules Committee, 1969
McKinney's Session Laws of NY, at 2365 [emphasis added]).  The
Legislature's aim has been plainly undermined in this case, as
confusion has long lingered over the question whether the Board
has identified a legally supportable basis for its claim that the
salary provisions of this 1990 collective bargaining agreement --
whose four-year term ironically already ended two years ago --
require explicit, additional, post-pact approval to gain
efficacy.

          The Board contends -- to the satisfaction of the courts
below -- that the allocation of salary levels and salaries of its
teachers is inherently and always legislative in nature.   The
Union, on the other hand, contends that in allocating funds for
teacher salaries, this fiscally dependent Board is exercising an
executive rather than legislative power.  We believe this
controversy may be resolved on pure statutory interpretation
grounds without choosing between the contentions of the parties
on the larger classification ground.  The Buffalo Board's
delegated and discrete range of authority with respect to this
matter was exhausted after it explicitly directed due execution
of the agreed-upon collectively-bargained pact.

          The Board, nevertheless, specifically argues that the
compensation features of the 1990 agreement are subject to an
explicit, additional statutory approval step, which it seeks to
characterize as purely legislative, simply because they involve
the expenditure of additional salary amounts.  This doctrinaire
labeling exercise cannot override plainly expressed law
governing the binding effect of the Superintendent's Board-
authorized execution of the agreement.  Such an approach does not
withstand particularized analysis and does not facilitate the
proper resolution of this case. 

          The Board concedes that its authority to expend
education funds flows directly from the Legislature's delegation.
The power the Board enjoys over its budget is that of spending
and allocating money, not one of appropriation.  That unique
power is possessed solely by the Common Council of the City of
Buffalo. 

          The Board's theory for the post-pact "re-approval"
step, taken to its logical limits, would encumber all contracts
bearing any varying budgetary impact terms with specific, formal,
follow-up steps, even when the Board has otherwise generally
accepted by operation of law and specifically directed the
execution of the particular collective bargaining agreement, as
occurred here. 

          In our view, Civil Service Law 201(12) and 204-a(1)
neither require nor contemplate such legal disingenuity or
superfluity.  We are satisfied that the Taylor Law does not by
its terms "vary or extend the instances in which legislative
approval is necessary and does not create a necessity for action
by a legislative body where it does not otherwise exist" (John E.
Creedon Police Benevolent Assn., Inc. of Utica v City of Utica,
44 AD2d 890 [emphasis added]).  Because the Board has not
identified any further legislative action that it must perform
under the pertinent statutes with respect to the salary
provisions of the agreement -- the only argument it attempts to
make here -- further approval by it is not needed for
implementation of this agreement.

          Notably, one of the described inducements for enactment
of the Taylor Law was to ameliorate the potentiality or tendency
of public employers to impose unilateral conditions upon public
employees.  The evident arbitrariness of such uneven bargaining
positions was sufficient to "give rise to employee reactions
which impair the quality of service rendered and otherwise
infringe upon the public interests" (Governor's Committee on
Public Employee Relations, Final Report [Taylor Committee
Report], Mar. 31, 1966 [Reprinted in 1966 Public Papers of
Governor Rockefeller, at 889-890]).

          We are, therefore, unpersuaded by the Board's
interpretation of Civil Service Law 201(12) that would give this
public employer Board a bait-and-switch escape hatch from
negotiated, agreed-upon contract terms.  Teachers, as in this
case, following their ratification of the contract, were bound to
all the contracted terms, including "give backs" and good faith
disclosure of their entire negotiating position on all terms and
conditions of their employment.  The Board's statutory
construction would create a "sandbag" disincentive against
employee organizations agreeing "to be bound for several years by
compensation provisions of a collective bargaining agreement that
did not also bind the employer" (Association of Surrogates and
Supreme Court Reporters within the City of New York v State of
New York (78 NY2d 143, 155).  To allow this Board a unilateral
and inherently contradictory avoidance of its "closed, initialed
and executed deal" would leave these teachers at the mercy of a
profoundly flawed and unfair collective bargaining procedure.
The Legislature could not have intended this, and we conclude it
did not.  Such a tilted field of management-labor relations would
plainly conflict with the pervasive policy and other explicit
terms of the Taylor Law that are designed to secure amicable,
negotiated, long-term agreements.

          Further support for our ultimate resolution of this
case may be garnered from an examination of the past practices of
these parties.  Courts may inform their judgments by reference to
a course of dealing which places employees on notice of the need
for further legislative action (see, Association of Surrogates
and Supreme Court Reporters within the City of New York v State
of New York, supra, at 155).  In this case, the Board does not
dispute or challenge that its customary practice has been to
formally adopt labor contracts in a unitary action.  Indeed,
despite some generalized assertions, the Board acknowledges with
pertinent specificity that it has never before taken or claimed a
post-pact "legislative approval" power as to discrete contractual
provisions containing additional funding components.  Thus, the
Board's past practices -- providing such notice and
predictability as may be properly and usefully derived
therefrom -- indicate that it did not assert or exercise an
additional role as to contractual salary provisions of the type
at issue here as subject to Civil Service Law 204-a(1) -- before
this procedurally intractable controversy.  To be sure,
Association of Surrogates and Supreme Court Reporters within the
City of New York v State of New York (supra), is distinguishable
in certain other respects, but its rationale is apt and
compelling with respect to the additional-step requirement urged
by the Board under the statute at issue.

          In sum, PERB held that it did not have the authority to
make the Board either adopt or legislatively approve the
agreement.  PERB did, however, direct within its clear authority
pursuant to the terms of Civil Service Law 201(12) and
205(5)(d) the execution of the agreement which had already been
reached by the parties (Matter of Board of Educ. for the City
School Dist. of the City of Buffalo v Buffalo Teachers Fedn.,
Inc., 191 AD2d 985, supra, lv denied 82 NY2d 656).  Thus, under
these circumstances, the Board's direction to the Superintendent
to execute the agreement must have legal meaning and be given
cognizable and appropriate effect. 

          We have considered all the other arguments of the
parties and conclude that they either need not be addressed for
the disposition of this case or lack merit. 

          Accordingly, the order of the Appellate Division should
be reversed, with costs, plaintiff's motion for summary judgment
denied, defendant's cross motion for summary judgment granted and
judgment granted declaring that the Board of Education for the
City School District of Buffalo is required to implement the
September 1, 1990, agreement retroactive to July 1, 1990.

                                *

Order reversed, with costs, plaintiff's motion for summary
judgment denied, defendant's cross motion for summary judgment
granted and judgment granted declaring that the Board of
Education is required to implement the September 1, 1990
agreement retroactive to July 1, 1990.  Opinion by Judge
Bellacosa.  Chief Judge Kaye and Judges Simons, Titone, Smith,
Levine and Ciparick concur.

Decided December 19, 1996



 

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