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November 20, 2008

Retirement incentives


Retirement incentives
Dodge v Schodack Central School District, 237 A.D.2d 806

Chapters 12, 14 and 189 of the Laws of 1995 provided for a number of "retirement incentives." The major objective of these measures was to reduce personnel costs.

Constance Dodge, together with other teachers employed by the Schodack Central School District, decided to retire at the end of the 1994-95 school year. They all submitted their respective resignations to that effect on or before April 13, 1995. Under the terms of the collective bargaining agreement then in place, the teachers thereby became eligible to receive a $5,000 "retirement bonus."

On May 4, 1995 the District elected to participate in a "State-wide retirement incentive plan."  This plan provided specific financial benefits to eligible individuals who decided to retire. Dodge and the other teachers attempted to obtain these "incentives." The District decided that they were ineligible for these benefits because they had already irrevocably resigned from the District. The teachers sued, seeking a court order directing the District to certify them as eligible for the additional incentives.

The Appellate Division sustained the District's determination. The Court noted that the intended effect of the legislation was to "induce the retirement of employees who would not otherwise have left the payroll ... and in so doing reduce the financial burden on those ... entities." The decision notes that "the law allows the benefits to be granted only when a position will be eliminated or significant savings will accrue."

The Court concluded that "no discernible public purpose is served by affording that benefit (which would cost the District approximately $72,000) to [these teachers] who had formerly indicated their intent to retire irrespective of this new inducement". Although the statues provided that individuals receiving these incentives would forfeit any "contractual retirement incentives," this did not demonstrate any legislative intent to make the program's benefits available to those who have already irrevocably resigned when no cost savings results.


Retirement incentives


Retirement incentives
Dodge v Schodack Central School District, 237 A.D.2d 806

Chapters 12, 14 and 189 of the Laws of 1995 provided for a number of "retirement incentives." The major objective of these measures was to reduce personnel costs.

Constance Dodge, together with other teachers employed by the Schodack Central School District, decided to retire at the end of the 1994-95 school year. They all submitted their respective resignations to that effect on or before April 13, 1995. Under the terms of the collective bargaining agreement then in place, the teachers thereby became eligible to receive a $5,000 "retirement bonus."

On May 4, 1995 the District elected to participate in a "State-wide retirement incentive plan."  This plan provided specific financial benefits to eligible individuals who decided to retire. Dodge and the other teachers attempted to obtain these "incentives." The District decided that they were ineligible for these benefits because they had already irrevocably resigned from the District. The teachers sued, seeking a court order directing the District to certify them as eligible for the additional incentives.

The Appellate Division sustained the District's determination. The Court noted that the intended effect of the legislation was to "induce the retirement of employees who would not otherwise have left the payroll ... and in so doing reduce the financial burden on those ... entities." The decision notes that "the law allows the benefits to be granted only when a position will be eliminated or significant savings will accrue."

The Court concluded that "no discernible public purpose is served by affording that benefit (which would cost the District approximately $72,000) to [these teachers] who had formerly indicated their intent to retire irrespective of this new inducement". Although the statues provided that individuals receiving these incentives would forfeit any "contractual retirement incentives," this did not demonstrate any legislative intent to make the program's benefits available to those who have already irrevocably resigned when no cost savings results.


Firefighters Rule


Firefighters Rule
Warta v City of New York, NYS Supreme Court, April 1997, Not selected for publication in the Official Reports

What is the current status of the so-called firefighters rule, which generally prevented firefighters and police officers from suing a party for injuries suffered due to the negligence of a party? Except with respect to suing municipal employers and co-workers, it has essentially been repealed by amendments to the General Municipal and General Obligations Laws.

Although the firefighters rule has been dramatically narrowed in scope, some defendants accused of negligence continue to invoke it in an attempt to avoid liability. This was the case in the Warta lawsuit. The defendants also claimed that a police officer's or firefighter's statutory cause of action is barred by the case law interpretation of General Municipal Law 205-a, which limits recovery to injuries sustained as a result of a violation of a statute or regulation regarding the maintenance and safety of premises.

Supreme Court Justice Polizzi took the opportunity to summarize the current law regarding law suits by police officers and firefighters as follows:

1. Recently enacted §11-106 of the General Obligations Law eliminates the firefighter's rule as a defense to an injured firefighter's common-law negligence claim. (Chapter 703, Laws of 1996)

2. A contemporaneous amendment to General Municipal Law 205-a effectively overrules case law holdings and permits the maintenance of a cause of action hereunder without the limitation to violations pertaining to the safe maintenance and control of premises or to instances where the alleged tortfeasors (wrongdoer) owns or controls the premises where the violation occurred.

3. The new General Obligations Law 11-106 and the amendment to General Municipal Law 205-a took effect immediately upon enactment and applies to all actions commenced or pending on and after the effective date of the statute.


Firefighters Rule


Firefighters Rule
Warta v City of New York, NYS Supreme Court, April 1997, Not selected for publication in the Official Reports

What is the current status of the so-called firefighters rule, which generally prevented firefighters and police officers from suing a party for injuries suffered due to the negligence of a party? Except with respect to suing municipal employers and co-workers, it has essentially been repealed by amendments to the General Municipal and General Obligations Laws.

Although the firefighters rule has been dramatically narrowed in scope, some defendants accused of negligence continue to invoke it in an attempt to avoid liability. This was the case in the Warta lawsuit. The defendants also claimed that a police officer's or firefighter's statutory cause of action is barred by the case law interpretation of General Municipal Law 205-a, which limits recovery to injuries sustained as a result of a violation of a statute or regulation regarding the maintenance and safety of premises.

Supreme Court Justice Polizzi took the opportunity to summarize the current law regarding law suits by police officers and firefighters as follows:

1. Recently enacted §11-106 of the General Obligations Law eliminates the firefighter's rule as a defense to an injured firefighter's common-law negligence claim. (Chapter 703, Laws of 1996)

2. A contemporaneous amendment to General Municipal Law 205-a effectively overrules case law holdings and permits the maintenance of a cause of action hereunder without the limitation to violations pertaining to the safe maintenance and control of premises or to instances where the alleged tortfeasors (wrongdoer) owns or controls the premises where the violation occurred.

3. The new General Obligations Law 11-106 and the amendment to General Municipal Law 205-a took effect immediately upon enactment and applies to all actions commenced or pending on and after the effective date of the statute.


Selected Fact Finders salary recommendations for impasse resolution during 1997


Selected Fact Finders salary recommendations for impasse resolution during 1997

In efforts to resolve negotiations impasses in collective bargaining involving compensation, fact finders proposed a variety of formulas, some fairly complex, to be used in determining salary increases. Some of those recommended are summarized below.

Cattaraugus-Allegany-Erie-Wyoming BOCES and BOCES Educational Support Personnel Association. Three-year contract providing for salary increases of 3.75% in the first year; 3.72% in the second year and 3.19% in the third year. The union had asked for a 15% increase for the three year period; BOCES had proposed an increase of 9.4% for the same period. Factfinder: John G. Watson.

Hadley-Luzerne Central School District and Hadley-Luzerne Teachers Association. Four annual increases of 2% each year. The Union had asked for a 5% increase each year. Also suggested were a number of changes involving employer contributions for health insurance for both active employees and school district retirees. Factfinder: Ben Falcigno

Massapequa Union Free School Districtand Massapequa Federation of Teachers. A 2.5% increase in the salary schedule each year based on adoption of a five-year contract but if employee contributions for health insurance are agreed upon by the parties, the salary schedule should be increased by 2.85% each year of the agreement. The teachers had proposed a 4% increase coupled to a four year contract; the District had proposed 1.8% each year over a three-year contract period. Factfinder: Robert Douglas

Pine Valley Central School District and Pine Valley Teachers' Association. A three-year agreement providing for a 1.81% salary increase, plus increments valued at 2.5% the first year, followed by salary increases of 4.2% and 4.01% in the second and third years of the agreement. The Association has sought a 6% increase. The District had offered a number of "off-schedule increases" plus increments, with a 4% cost of living cap, including increments, in the final year of the agreement. Also recommended: the deletion of a "sunset provision" that had halted automatic increment payments from the new agreement. Factfinder: John Watson

Port Jefferson Union Free School Districtand Port Jefferson Teachers Association. A four-year agreement, with no increase in the salary schedule in the first 18 months. Annual increment, with no increase in the salary schedule the first year. Effective February 1997, a 2.5% increase in the salary schedule plus increments to be followed by 2.75% increases and increments in the next two years of the agreement. The District had offered an average increase of 3.98% over a four-year contract period; the teachers had asked for a 4.25% average increase in salary over a three year period. Factfinder: Theodore Lang.

Corning-Painted Post Area School District and Corning Teachers Association. A four-year agreement providing increments only and $1,000 on the top step of the salary schedule in the first year, followed by 4%, 5% and 3.75% increases, including increments, in the three succeeding years. The teachers had sought a three year agreement providing an average salary increase of 4.25% while the District looked towards a four-year contract providing for a 3.98% average increase over the four years. Factfinder: Mona Miller.


Selected Fact Finders salary recommendations for impasse resolution during 1997


Selected Fact Finders salary recommendations for impasse resolution during 1997

In efforts to resolve negotiations impasses in collective bargaining involving compensation, fact finders proposed a variety of formulas, some fairly complex, to be used in determining salary increases. Some of those recommended are summarized below.

Cattaraugus-Allegany-Erie-Wyoming BOCES and BOCES Educational Support Personnel Association. Three-year contract providing for salary increases of 3.75% in the first year; 3.72% in the second year and 3.19% in the third year. The union had asked for a 15% increase for the three year period; BOCES had proposed an increase of 9.4% for the same period. Factfinder: John G. Watson.

Hadley-Luzerne Central School District and Hadley-Luzerne Teachers Association. Four annual increases of 2% each year. The Union had asked for a 5% increase each year. Also suggested were a number of changes involving employer contributions for health insurance for both active employees and school district retirees. Factfinder: Ben Falcigno

Massapequa Union Free School Districtand Massapequa Federation of Teachers. A 2.5% increase in the salary schedule each year based on adoption of a five-year contract but if employee contributions for health insurance are agreed upon by the parties, the salary schedule should be increased by 2.85% each year of the agreement. The teachers had proposed a 4% increase coupled to a four year contract; the District had proposed 1.8% each year over a three-year contract period. Factfinder: Robert Douglas

Pine Valley Central School District and Pine Valley Teachers' Association. A three-year agreement providing for a 1.81% salary increase, plus increments valued at 2.5% the first year, followed by salary increases of 4.2% and 4.01% in the second and third years of the agreement. The Association has sought a 6% increase. The District had offered a number of "off-schedule increases" plus increments, with a 4% cost of living cap, including increments, in the final year of the agreement. Also recommended: the deletion of a "sunset provision" that had halted automatic increment payments from the new agreement. Factfinder: John Watson

Port Jefferson Union Free School Districtand Port Jefferson Teachers Association. A four-year agreement, with no increase in the salary schedule in the first 18 months. Annual increment, with no increase in the salary schedule the first year. Effective February 1997, a 2.5% increase in the salary schedule plus increments to be followed by 2.75% increases and increments in the next two years of the agreement. The District had offered an average increase of 3.98% over a four-year contract period; the teachers had asked for a 4.25% average increase in salary over a three year period. Factfinder: Theodore Lang.

Corning-Painted Post Area School District and Corning Teachers Association. A four-year agreement providing increments only and $1,000 on the top step of the salary schedule in the first year, followed by 4%, 5% and 3.75% increases, including increments, in the three succeeding years. The teachers had sought a three year agreement providing an average salary increase of 4.25% while the District looked towards a four-year contract providing for a 3.98% average increase over the four years. Factfinder: Mona Miller.


November 19, 2008

Reopening a PERB proceeding


Reopening a PERB proceeding
Matter of Chenango Forks CSD, 29 PERB 3057

If a party agrees to have a proceeding "administratively closed," it cannot later argue that it was an error to reopen the proceeding. This was one of several issues included in exceptions of a PERB administrative law judge's resolution of charges filed against the Chenango Forks Central School District by the Chenango Forks Transportation Association.

The Association charged the District with violating §§209-a.1(a),(c) and (d) when it unilaterally directed both the Association's president and its secretary from discussing union business on school property.

Although the charge had been "administratively closed," the District consented to its being reopened by PERB's administrative law judge. Ultimately the administrative law judge ruled that the District had violated the Taylor Law when it unilaterally barred employees from discussing employment issues while on school property.

The District's exception to this determination contended that "the administrative law judge erred by allowing the Association to reopen the charge because the Association had not filed a second notice of claim pursuant to Education Law §3813 when the case was reopened.

PERB rejected the District's argument, succinctly commenting that "the District agreed to reopen the case and it cannot now argue that the reopening was error." According to PERB, by agreeing to the reopening, "the District waived any claim the reopening should have been denied."


Positive drug test


Positive drug test
Bruno v Sweeney, Appellate Division

A New York City bus driver, Antonio Bruno, was dismissed from his job when he tested positive for cocaine during his annual physical examination. Bruno's termination followed a hearing before an impartial arbitrator in accordance with the terms of a collective bargaining agreement.

Bruno applied for unemployment insurance benefits but his claim was rejected on the grounds that he was disqualified from receiving benefits because he had lost his employment due to his own misconduct. He challenged the Unemployment Insurance Appeals Board's affirming his disqualification.

The Appellate Division dismissed Bruno's appeal, commenting that an employee's use of cocaine represents a willful disregard of the standards of conduct an employer has the right to expect.


Reopening a PERB proceeding


Reopening a PERB proceeding
Matter of Chenango Forks CSD, 29 PERB 3057

If a party agrees to have a proceeding "administratively closed," it cannot later argue that it was an error to reopen the proceeding. This was one of several issues included in exceptions of a PERB administrative law judge's resolution of charges filed against the Chenango Forks Central School District by the Chenango Forks Transportation Association.

The Association charged the District with violating §§209-a.1(a),(c) and (d) when it unilaterally directed both the Association's president and its secretary from discussing union business on school property.

Although the charge had been "administratively closed," the District consented to its being reopened by PERB's administrative law judge. Ultimately the administrative law judge ruled that the District had violated the Taylor Law when it unilaterally barred employees from discussing employment issues while on school property.

The District's exception to this determination contended that "the administrative law judge erred by allowing the Association to reopen the charge because the Association had not filed a second notice of claim pursuant to Education Law §3813 when the case was reopened.

PERB rejected the District's argument, succinctly commenting that "the District agreed to reopen the case and it cannot now argue that the reopening was error." According to PERB, by agreeing to the reopening, "the District waived any claim the reopening should have been denied."


Positive drug test


Positive drug test
Bruno v Sweeney, Appellate Division

A New York City bus driver, Antonio Bruno, was dismissed from his job when he tested positive for cocaine during his annual physical examination. Bruno's termination followed a hearing before an impartial arbitrator in accordance with the terms of a collective bargaining agreement.

Bruno applied for unemployment insurance benefits but his claim was rejected on the grounds that he was disqualified from receiving benefits because he had lost his employment due to his own misconduct. He challenged the Unemployment Insurance Appeals Board's affirming his disqualification.

The Appellate Division dismissed Bruno's appeal, commenting that an employee's use of cocaine represents a willful disregard of the standards of conduct an employer has the right to expect.


Retroactive membership in the NYSTRS


Retroactive membership in the NYSTRS
Candrea v Yonkers CSD, Appellate Division
Clark v Kingston CSD, Appellate Division
Kaufman v Jericho UFSD, Appellate Division
White v Freyman, NYS Supreme Court

§803 of the Retirement and Social Security Law authorizes retroactive membership in a State public retirement system if an individual otherwise eligible to join the system, when first eligible to join the system:

(i) did not expressly decline membership in a form filed with the employer;

(ii) did not participate in a procedure explaining the option to join the system in which a  form, booklet or other written material is read from, explained or distributed ...; or

(iii) did not participate in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or her to join a public retirement system.

 This provision has generated a number of law suits challenging school district decisions denying teacher applications for retroactive membership in the New York State Teachers Retirement System [TRS]. As a general rule, approval of such applications would typically place the teacher in a different "retirement tier," usually with greater benefits and require the school district to pay the entire employer contribution associated with such retroactive membership.

During the relevant time periods in most §803 cases, where membership in a retirement system was not mandatory, if the employee did not join a system, the employer would not have had to pay either the employer contribution for retirement or the employer contribution towards social security on behalf of the employee.

Summarized below are several recent court rulings involving §803 claims.

        The Candrea Case

The Candrea decision turned on whether a school district had "a standard practice" of advising newly hired teachers of their right to join TRS.

Yonkers decided that Eric Candrea had been advised of his option to become a member of TRS when he was initially hired as a part-time teacher in 1975. It maintained that he was ineligible for retroactive membership in TRS because "when he was hired he had participated in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision ... to join the retirement system." Accordingly, it denied his §803 application for retroactive membership in TRS.

Providing this information, Yonkersexplained, was its standard practice in such situations.

The Appellate Division rejected Yonkers' contention. It noted that "despite the existence of this allegedly standard practice," Yonkershad previously found other teachers hired during the same time period to be eligible for retroactive membership "because they had not been afforded an opportunity to join the Retirement System."

Under the circumstances, said the Court, Yonkers' rejection of Candrea's application was arbitrary and capricious as there was no rational basis for distinguishing between Candrea's eligibility for retroactive membership from that of the other teachers who were found to be eligible.

         The ClarkCase

In this case the significant issue concerned the nature of the burden of proof that a teacher had to meet to satisfy the requirements of §803 for the purposes of retroactive membership in TRS.

Barbara Clark and three other teachers claimed that they were entitled to retroactive membership in TRS based on their part-time service with the Kingston City School District during various periods in 1970.

They completed the forms prepared by TRS which asked:

1. Did your first public employer fail to advise you of your right to join a public retirement system? and

2. Did you render continuous employment ... from the date of you first public employment to your current date of membership?

Although the four teachers answered both questions "yes" and filed the form "precisely according to instructions," Kingstonclaimed that the four, in order to prevail, also had to provide affirmative evidence that:

a. they did not expressly decline membership in a form filed with the employer;

b. they did not participate in a procedure explaining the option to join the system in the course of which written material was supplied; or

c. they did not participate in a procedure that a "reasonable person" would recognize as requiring a formal decision to join a retirement system.

Not so, said the Court. It held that the teachers had satisfied their initial burden of proof by completing and filing a timely form with TRS. This meant that the District was required to come forward with evidence in support of its claim that the teachers did not qualify for retroactive membership in TRS.

Another argument raised by Kingstonwas that "once an individual belongs to a retirement system, she surely must be aware of her right to rejoin the system" after a period of inactivity and withdrawal. This would occur upon reemployment as a part-time or substitute teacher.

Again the Appellate Division disagreed. It said that "neither an individual's prior membership in the Retirement System as a full-time teacher nor her subsequent indication that she is no longer a member of the system evidences her knowledge that she is entitled to rejoin the system by virtue of her employment as a substitute teacher or that she does not desire to join the system."

The Court sustained the Supreme Court ruling that under the circumstances Kingston's determinations "lacked a rational basis" and dismissed its appeal.

        The Kaufman Case

The Appellate Division affirmed a lower court ruling that the Jericho Union Free School District's rejection of Harriet Kaufman's application for retroactive membership in TRS was "arbitrary and capricious and with any rational basis."

The Court rejected the District's efforts to provide "further justification" for its decision in its answer to Kaufman's petition on the grounds that "judicial review of an administrative determination is limited to the grounds invoked by the administrative body" in making its determination. In other words, the District was not permitted to bolster its justification by presenting reasons that it did not cite in its final determination rejecting Kaufman's application.

         The White Case

The White case addressed a technical issue: the necessity of filing a "notice of claim" as a prerequisite to challenging a school board's rejection of an application for retroactive membership in a retirement system.

Frances White was employed as a substitute teacher with the Ossining Union Free School District ("Ossining") in September 1974. She first joined the New York State Teachers' Retirement System [TRS] in September 1976 as a Tier 3 member.

In 1994 White applied for retroactive membership in TRS effective September 1974. Approval of her application would give her Tier 2 members status. Ossining, which would have to make the employer contribution if White were qualified for retroactive membership, determined that she did not meet the §803 requirement and disapproved her application.

White sued, challenging Ossining's determination. Ossining asked the Court to dismiss her complaint on the grounds that White had neglected to file a notice of claim with the District which Ossining contended was required by §3813(1)2 of the Education Law.

Holding that White was attempting to assert a private right rather than a "public interest," the Court ruled that White's efforts to excuse her failure to file the notice of claim did not fall within any of the exceptions that would otherwise excuse this omission. Ruling that the failure to file a §3813(1)2 notice was a "fatal defect," the Court granted Ossining's motion and dismissed her appeal.

The full opinion in White follows:


         WHITE v. FREYMAN

Petitioner's motion to strike two affirmative defenses raised in response to this CPLR Article 78 proceeding commenced to challenge an unfavorable March 15, 1996 Retirement and Social Security Law 803 determination is denied.

Background and Facts

Petitioner Frances White was employed as a substitute teacher with the Ossining Union Free School District("Ossining") in September 1974. While there, she did not join the then effective and voluntary New York State Teachers Retirement system (the "retirement system"), Tier II. Thereafter, she worked for various school districts. In September 1976, White joined the then effective and mandatory Tier III retirement system which provides for, among other things, a less generous benefit package than that offered through Tier II.

In November 1994, White applied to Ossiningfor retroactive membership in Tier II of the New York State Retirement System pursuant to §803 of the Retirement and Social Security Law. Very briefly, §803 allows for retroactive membership in an earlier retirement system where an employee did not, when first eligible to join the retirement system1:

(i) expressly decline membership in a form filed with the employer; (ii) participate in a procedure explaining the option to join the system in which a Forn, booklet or other written material is read from, explained or distributed ...; or (iii) participate in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or her to join a public retirement system.

After having been turned down for retroactive membership by the Ossining Assistant Superintendent and then the Ossining Superintendent, a full evidentiary hearing was held on November 17, 1995. Upon consideration of the hearing testimony and subsequently submitted briefs, the Ossining Board of Education affirmed the previous denials by written determination dated March 15, 1996. This CPLR Article 78 proceeding was commenced on July 12, 1996to upset that determination.

By verified answer and an affirmation dated August 9, 1996, respondent raises two affirmative defenses: (1) petitioner failed to file an Education Law 3813(1)2 notice of claim with the school district within three months after the accrual of her claim; and, (2) failed to allege that in her petition. This motion to strike the affirmative defenses followed.

Conclusions of Law

With narrow exception (see, infra), service of an Education Law 3813 notice of claim is a condition precedent to obtaining personal jurisdiction over a school district, even in a CPLR Article 78 proceeding (see, Education Law 3813; Matter of Harder v. Board of Education, 188 AD2d 783, 784 [3d Dept, 1992]; Matter of Jackson v. Board of Education, Colton-Pierrepont Central School District, 194 AD2d 901 [3d Dept, 1993], lv den 82 NY2d 657). The notice of claim must be served within three months of the accrual of claim, here, admittedly, March 15, 1996.3 Absent a judicially recognized exception, or permissible leave to file a late notice of claim (see, Education Law 3813[2-a]), failure to comply with the notice of claim requirement is a fatal defect which mandates the dismissal of the proceeding (Parochial Bus Systems v. Board of Education, 60 NY2d 539, 548).

Petitioner moves to strike the affirmative defenses on the ground that the public interest exception, one of two judicially recognized exceptions to the 3813 notice of claim requirement (see, Matter of Board of Education of the Union-Endicott Central School District v. NYS Public Employment Relations Board, 197 AD2d 276 [3d Dept, 1994], lv den 84 NY2d 803), applies to her case. The scope of the public interest exception to the notice of claim requirement extends to "actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group" (Mills v. County of Monroe, 59 NY2d 307, 311, cert den 464 US 1018).

In Union Free School District No. 6 v. NYS Human Rights Appeal Board (35 NY2d 371, mot rearg den 36 NY2d 807), the Court deemed exempt under the public interest exception a case dealing with personnel policies and practices which discriminated on the basis of sex. The court found that the relief granted would "redound to the benefit of that teacher as well as to the benefit of other teachers similarly situated" (id. at p. 380). Also emphasized was the "public's interest in the elimination of discrimination based on sex -- a public interest duly declared by legislative enactment" (id.). Nonetheless, where a favorable disposition would not directly affect or vindicate the rights of others, an action based on unlawful discriminatory practices constitutes the vindication of a private right (see, Mills v. County of Monroe, 59 NY2d 307, 311 [action to redress employment discrimination on the basis of race]).

"The 'tenure rights' of teachers are also considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights [citations omitted]"  (Sephton v. Board of Education of the City School District of the City of New York, 99 AD2d 509, 510 [2d Dept, 1984], lv den 62 NY2d 605; Matter of Piaggone v. Board of Education, Floral Park-Belrose Union Free School District, 92 AD2d 106 [2d Dept, 1983]; Feinberg v. Board of Education of the East Ramapo Central School District, 78 AD2d 889 [2d Dept, 1980]).

In Sephton (99 AD2d 509), the Court held that an action for the recovery of back pay based upon an alleged improper salary restructuring was not exempt from the §3813 notice requirement because the "vindication of private rights and duties" was being sought (id. at 510). Here, too, petitioner is "not attempting to pursue the kind of public interest that would remove the necessity of filing a notice of claim" (Matter of Jackson v. Board of Educ. Colton-Pierrepont Cent. School Dist., 194 AD2d 901, 903, supra). Fundamentally private relief, retroactive membership in an earlier tier of a retirement system with all of the benefits that it brings, is being sought on the grounds that the Retirement and Social Security Law 803 determination is null and void for reasons included in CPLR 7803(3) and (4). This proceeding lacks public policy implications inasmuch as the disposition of petitioner's claim was not intended to nor could it directly affect or vindicate the rights of others (see, Mills v. County of Monroe, 59 NY2d 307, 311)

Matter of Walton v. Board of Education of the Valley Central School District(Supreme Ct, Orange County, January 17, 1996, Owen, J. [Index No. 5777/95]) is distinguishable. There, relying on Piaggone, supra, the court ruled that a §3813 notice of claim was not required in that CPLR Article 78 proceeding because petitioner asserted that the respondent did not fulfill "a requirement imposed by law," i.e., respondent allegedly failed to provide an RSSL 803(b)(3) affidavit.4 Here, the contention is that an incorrect RSSL 803 determination was reached. Petitioner has no legal right to a determination in her favor.

Matter of Mogg v. Brentwood Union Free School District (Supreme Ct, Suffolk County, March 1, 1996, Cowan, J.) is not controlling, and is unpersuasive. Without discussion or comment, Mogg, supra, relies upon Piaggone, supra, for its holding that a §3813 notice of claim is not required in an Article 78 proceeding for retroactive membership in an earlier retirement system. As previously noted, however, Piaggone is a tenure case and, as such, is significantly distinguishable. This is especially so in light of more recent cases that have applied the §3813 notice requirement to CPLR Article 78 proceedings (see, e.g., Matter of Harder v. Board of Education, 188 AD2d 783, 784 [3d Dept, 1992] supra [Education Law 3813 notice requirement applicable to CPLR Article 78 proceeding commenced to challenge school district's determination, after a Civil Service Law 75 hearing, to terminate an employee for, among other things, incompetency]).

A claim for monetary damages in addition to that which is a "natural concomitant" of the ultimate relief sought may very well disqualify a proceeding or action that is otherwise exempt from §3813 (see, Feinberg v. Board of Education of the East Ramapo Central School District, 78 A.D.2d 889 supra.; see also, Hermele v. Union Free School District No. 23, 167 AD2d 512 [2d Dept, 1990], lv den 77 NY2d 804 [action to recover for wrongful discharge and for reinstatement of employment constitutes a private dispute]). However, the mere absence of a claim for monetary damages in an otherwise nonexempt case does not qualify it for exemption.

The Court must reject petitioner's argument that her November 1994 RSSL 803(3) affidavit satisfies the 3813 notice of claim requirement. It is not knowledge of the wrong or underlying facts that counts, it is knowledge of the actual claim (Parochial Bus System v. Board of Education 60 N.Y.2d 539, 548 [1983]; Chesney v. Board of Education, 5 N.Y.2d 1007 [1959]; Munroe v. Booth, 305 N.Y. 426 [1953]; Thomann v City of Rochester, 256 NY 165, 172 [1931]). The affidavit precedes the earliest date on which the claim could have accrued, March 15, 1996.

The alternative relief sought, an application for leave to file a late notice of claim, must be denied. An extension of time during which to serve a notice of claim "shall not exceed the time limited for the commencement of an action by the claimant against any district or any such school" (Education Law 3813[2-a]; Matter of Board of Education of Schenevus Central School District v. Merritt Meridan Construction Corporation, 210 AD2d 854 [3d Dept, 1994]). Petitioner's September 25, 1996 application for leave to file a late notice of claim was made well over four months (see, CPLR 217) after the date the cause of action accrued, March 15, 1996.

While a pleading may constitute substantial compliance with a notice of claim requirement, that is only where, unlike here, it has been served within the requisite period of limitations (Matter of Deposit Central School District v. Public Employment Relations Board, 214 AD2d 288 [3d Dept, 1995] lv den 88 NY2d 866; Feinberg v. Board of Education of the East Ramapo Central School District, 78 AD2d 889 supra).

One may question the wisdom of requiring the filing of a notice of claim within three months after the accrual of a claim cognizable under CPLR Article 78, and where there exists a mere four month statute of limitations (see, Education Law 3813; CPLR 217). However, that is a matter more properly placed before the Legislature. As the Court stated in Parochial Bus Systems v. Board of Education, supra, (60 NY2d 539 at 548):
said that a particular form of notice, conveyed with particular details to particular public officers, shall be a prerequisite to the right to sue [,] [t]he courts are without power to substitute something else." (Thomann v. City of Rochester, 256 NY 165, 172 ...) Moreover, "[w]hat satisfies [a statute such as §3813 of the Education Law] is not knowledge of the wrong. What the statute exacts is knowledge of the 'claim.' " (Id.).

Nor may a claimant be relieved of "a positive statutory mandate" simply because no prejudice has resulted, "even to avoid a harsh result." (P.J. Panzeca, Inc. v. Board of Educ., 29 NY2d 508, 510 ...)

Petitioner's failure to present a notice of claim to the school district as is required by Education Law 3813 constitutes a fatal defect resulting in the dismissal of this proceeding.

Accordingly, the petition is dismissed.

The foregoing constitutes the Opinion, Decision and Order of the Court.

 Notes

(1) §803 was effective for three years, and has since expired.

(2) Education Law 3813 provides: "No action or special proceeding, for any cause whatever, except as hereinafter provided, relating to district property or property of schools or claim against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district unless it shall appear by and as an allegation in the complaint that a written verified claim upon which such action or special proceeding is founded was presented within three months after the accrual of such claim *."

(3) See, p. 11 of petitioner's motion to strike, p. 12 of respondents' memorandum of law accompanying verified answer.

(4) The court expressly declined to rule on whether a notice of claim was necessary for the judicial review of an administrative determination on the grounds of arbitrariness and capriciousness.

* The courts have identified an exception that could excuse literal adherence to the §3813 filing requirement: "substantial compliance" with the mandates of §3813. In Deposit CSD v PERB, the Appellate Division held that  although compliance with §3813 "is a condition precedent to PERB's exercise of jurisdiction over an improper practice charge," the fact that the District had received a copy of the charges filed with PERB by the employee organization "within 90 days after the claim arose, and had filed its answer" to the allegations meant that  there was substantial compliance with the notice of claim requirements set out in §3813. According to the ruling in Deposit, "substantial compliance with Education Law §3813 is all that is required in situations where the school district has been sufficiently informed of the claim." In White's situation it could be argued that the District had substantial notice of her claim as it had made the final administrative determination denying her application for retroactive membership in TRS.

November 9, 2008

Focus of some of the other court and administrative decisions summarized include, but are not limited to, such area of public personnel law



Focus of some of the other court and administrative decisions summarized include, but are not limited to, such area of public personnel law as:



Abolishing a position for economic reasons

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce

Actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

Administrative due process in disciplinary actions

Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding

Administrative tribunal may not rely on evidence not in the record in arriving at its decision

Admitting evidence of prior disciplinary action taken against the charged party

Alcoholism as a defense in a disciplinary action

Amending disciplinary charges "to conform with the testimony" given by a witness in the course of the disciplinary hearing

Anatomy of an administrative disciplinary decision

Appeals involving efforts to remove a member of a school board from office

Appeals to the Commissioner of Education seeking to remove members of a Board of Education for alleged misconduct or alleged neglect of duty

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate

Application for retirement benefits must be timely delivered to and received by the retirement system to be operative

Application seeking the removal of an employee of a School District

Applying the Pell Doctrine in a disciplinary action

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

Appointing authority’s neglecting to make a timely designation of an individual to serve in lieu of the appointing authority in a §75 disciplinary action is a fatal omission

Arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division

Assessing the appropriate penalty to be imposed for unprofessional and disrespectful language in the workplace

Assigning law enforcement personnel to perform light duty while receiving benefits pursuant to §207-c of the General Municipal Law

Attempting to avoid disciplinary action

Authority of the arbitrator

Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates

Burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

Challenging a decision to terminate a probationary teacher's employment

Challenging an employee's termination during his or her disciplinary probation period

Challenging the termination of a probationary teacher

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Claiming the affirmative defense of "privilege"

Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions

Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction.

Common procedural errors or omissions that will bar the Commissioner of Education's considering the merits of an appeal

Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence

Conducting disciplinary hearings in absentia

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Considering the employee's personnel history is setting a disciplinary penalty

Constructive discharge from the position as the result of unlawful acts of discrimination

Counseling memorandum issued to an employee

Court's review of an administrative decision made after an adversarial hearing is limited to considering if the decision is supported by substantial evidence

Credit the opinion of one medical expert over that of another medical expert when reviewing an application for disability retirement

Deficiencies in the performance review process of a probationary teacher that were not merely technical undermined the integrity and fairness of the process

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Demanding an employee submit his or her resignation from his or her position

Determining “continuous residency” for the purpose of qualifying for public office or employment

Determining an appropriate disciplinary penalty under the circumstances

Determining an educator's seniority for the purposes of layoff

Determining if an administrative agency's decision is arbitrary and capricious

Determining if an employee is eligible for accidental disability retirement benefits

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits

Determining seniority and tenure area of teachers in the event of the abolishment of positions

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement

Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of a work related injury or disease

Determining the appropriate procedure to be followed when filing disciplinary charges against a police officer of a town

Determining the disability benefits due a firefighter as the result of a work-related injury can be complex

Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits

Determining the status and rights of an employee in the public service terminated from his or her employment

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”

Disability not a defense to charges of excessive absence from work

Disciplinary action follows employee's disrespectful and intimidating behavior towards
superiors

Disciplinary actions pursuant to Education Law §3020-a processed consistent with compulsory arbitration standards

Disciplinary charges must be served on the target of the disciplinary action on or before the expiration of the period set by the controlling statute of limitations

Disciplinary hearing officer may not consider disciplinary charges and specifications not preferred against an employee

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Disciplinary hearing postponed “without prejudice” pending successful completion of a probationary period with another agency

Disciplinary hearings held in absentia

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Disciplinary probation

Discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer

Dismissing an employee before he or she has completed his or her probationary period

Distinguishing between an individual's "domicile" and his or her "residence"

Doctrine of Abatement: applied in a criminal action

Doctrine of Collateral Estoppel bars relitigating an issue raised and decided by a judicial tribunal in a prior action or proceeding involving the same parties but does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

Doctrine of primary jurisdiction

Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award

Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?

Due process consideration in the event an employee is terminated from his or her probationary period

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Educator seeking to overturn an unsatisfactory annual performance rating must meet is very high standard of proof

Educator terminated for a continuing pattern of inappropriate behavior involving students

Educator terminated for doing exactly what he was permitted and encouraged to do by his employer

Educator's unsatisfactory performance rating for the academic year supported by the "detailed descriptions" of educator's difficulties in the classroom in the record

Eligibility for workers’ compensation benefits based on work-related stress

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Employee has the burden of proving alleged misconduct by the arbitrator prejudiced his or her rights or the integrity of the process

Employee may be subjected to disciplinary action for misusing his or her sick leave accruals

Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident

Employee served with disciplinary charges alleging he was "singing on the job"

Employee suspended for one year without pay after failing to comply with school directives

Employee terminated following the loss of the license required to perform the duties of the position

Employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Employee’s misuse of employer’s email results in dismissal

Employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing officer to resolve

Employee’s use of the employer's electronic equipment - disciplinary action being taken against an employee

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Employer's payment of employer contributions towards an employee's health insurance premiums discontinued during the employee's disciplinary suspension without pay

Employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

Employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed

Essentials of challenging an employee disciplinary action where compulsory arbitration is involved

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority

Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law

Exceptions to the Doctrine of Exhaustion of Administrative Remedies

Exceptions to the general rule that only the union or the employer may demand that an issue be submitted to arbitration

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority

Failure of the individual to timely execute his or her oath of office upon election to a public office results in the position becoming vacant by operation of law

Failure to comply with emergency leave regulations

Failure to honor a known policy of the employer can constitute disqualifying misconduct for the purpose eligibility for unemployment insurance benefits

Federal and State laws, rules and regulations control affecting public sector officers and employees engage in partisan political activities

Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry

Filing disciplinary charges against an employee where the absence is due to an injury or disease

Findings of fact in support of the appointing authority’s decision to terminate an employee required to survive the employee’s judicial challenge seeking reinstatement to his or her former position.

Findings of fact made by a §75 hearing officer are given collateral estoppel effect in considering a terminated individual's application for unemployment insurance benefits

Fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits

Firefighter Rule bars police officer from suing his or her employer or a coworker for injuries suffered while on duty

Forfeiture of employee retirement contributions made to a New York State public retirement system

Freedom of speech

General Municipal Law §207-a(2) salary supplement becomes payable by the employer upon a firefighters retirement with accidental or line of duty disability benefits

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration

Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty

Hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

Hearsay testimony may be admitted in evidence in an administrative hearing

History of misconduct and other factors considered by the hearing officer in recommending termination of employment

If an employee engaged in repeated acts constituting disloyalty to the employer, forfeiture of compensation and benefits is warranted under the Faithless Servant Doctrine

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Inability to satisfactorily perform the duties of the position due to an alleged disability

Individual cannot be found guilt of misconduct not charged in the notice of discipline

Individual has no property interest in his or her former employment once he or she is discharged

Individual is disqualified from receiving unemployment insurance benefits if he or she lost his or her employment as a result of acts constituting a felony

Individual is not deemed permanently disabled if undergoing a reasonably safe surgical procedure would permit the individual to perform the duties of his or her position

Individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

Individual's General Municipal Law §207-c benefits may be discontinued where the decision to do so is supported by substantial evidence

Individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

Individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing

Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Installing Global Positioning System equipment in devices use by employees during work

Insubordinate and discourteous conduct

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of determinations made after a hearing denying a police officer's application for General Municipal Law §207-c disability benefits

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Layoff of seasonal employees constituted a termination of employment for the purposes of Public Authorities Law §2629(2)(a)

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Maintaining a proper chain of custody of evidence to be used in a disciplinary action

Making false statements concerning the employee's performance of his or her duties

Making false statements to investigators concerning alleged misconduct

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New
York State public employer

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit

Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Motions to have an administrative law judge recuse himself or herself from presiding at a disciplinary hearing

Name clearing hearings

Negotiating disciplinary procedures for City ofSchenectady police officers held a prohibited subject of collective bargaining

New York City employee found guilty of used his employer's telephone and computer equipment for his political campaign while at work

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence

OATH disciplinary hearing held in absentia

Obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education

Optional Retirement Plan

Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes

Party seeking to modify an arbitration award must comply with the relevant provisions of Article 75 of the Civil Practice Law and Rules

Penalty of dismissal imposed on educator ruled shocking to its sense of fairness

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty

Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

Plausibility Standard

Police confrontations with mentally impaired citizens and inmates

Police detective who did not properly discharge his duties not entitled to a defense or indemnification by the employer in a lawsuit in which he or she is a defendant

Police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e

Police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

Police officer terminated following being found guilty of downloading and possessing child pornography

Police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Police offices and firefighters applying for accidental disability retirement benefits must demonstrate that his or her incapacity was the "natural and proximate result of an accident" within the meaning of §363[a][1] of the Retirement and Social Security Law

Presumption that an accident that occurred in the course of employment arose out of that employment

Probationary employee has the burden of showing his or her termination was unlawful

Probationary employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position

Processing an application for accidental disability retirement

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority

Public officer threatening to do something that he or she may lawfully due does not constitute coercion

Public policy prohibits an employer from bargaining away its right to remove employees meeting the plain and clear statutory requisites for termination

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination

Redacting the name of a party in an administrative disciplinary action from the decision

Refusing to accept the resignation submitted by an employee

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Removing a judge from his or her office

Removing a school official for an alleged unauthorized disclosure of confidential information

Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office

Removing a volunteer firefighter from his or her position

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery

Requiring an educator submit to a medical examination to determine his or her ability to perform the duties of his or her position

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71

Retirement

Right to a disciplinary hearing survives the individual’s resignation or retirement from the position

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Rule of three

Running for public office

Salary reduction upon reassignment to another position in the course of an agency reorganization is not a disciplinary action requiring notice and hearing

School Board asks the Commissioner of Education to remove the president of the school board from the position

School board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

School board seeks to remove a sitting member from the board for alleged "official misconduct"

School district’s decision to abolish a position and have a BOCES assume performing the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2)

School employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education pursuant to Education Law §310

Seniority for the purposes of layoff and reinstatement from a preferred list set out in "settlement agreement"

Sick leave

Sleeping on duty

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Spoliation of evidence

Statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease

Stipulation of settlement cannot withdrawn from the stipulation on the basis that it had "improvidently" agreed to it

Stipulation waiving rights to a disciplinary hearing and agreement to resign from the position may not disqualify the individual for Unemployment Insurance benefits

Summarily removing public officers and employees from their positions

Summarily terminating a federal officer holding a term appointment from his or her position

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Teacher fined $10,000 after subjecting student to corporal punishment

Tenure area determinations upon the abolishment of a position or positions

Tenure by estoppel

Tenured employee who resigns from his or her position and is subsequently reemployed by his or her former employer in the same title is not automatically entitled to tenure in the position

Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim

Terminated educator alleges that her employer breached the employment agreement and negligently terminated her

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Terminating a "long-time" provisional employee

Terminating a teacher during his or her probationary period

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Termination of a public officer from his or her position by operation of law

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

Termination of employment following extended absence without approval

Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”

Test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position

Unemployment Insurance Appeal Board may reject an application for unemployment insurance benefits based on its finding the Claimant's employment was terminated due to disqualifying misconduct

Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

Unless it is shown that a performance evaluation was arbitrary and capricious, or made in bad faith, the court will not substitute its judgment for that of the appointing authority

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Use of excessive and inappropriate force on juvenile residents at a facility

Use of video surveillance recording in disciplinary actions

Withdrawing a letter of resignation

Withdrawing a resignation delivered to an appointing authority


Public Personnel Law E-books

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

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

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


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Please Note:

Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.

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Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher, editor, contributors or members of the staff are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.