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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.
N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.
December 22, 2009
Some public agencies and organizations have unclaimed funds in the State Comptroller's "Abandoned Property Fund"
Source: The State Comptroller's web site
In these times of financial difficulties, every penny counts -- so below is a sample listing of BOCES and school districts* currently listed as having monies being held by the State Comptroller in the Abandoned Property Fund and which may be claimed by the rightful owner.
Other public employers and employee organizations, including CSEA, AFSCME Local 1509, NYSUT Retiree Council, Department of State Division of Corporations, and Erie County, are listed by the Comptroller as having monies being held in the Abandoned Property Fund as well.
How much money is being held in the Fund? Nine Billion Dollars, give or take a few million.
State Comptroller Thomas P. DiNapoli recently issued a press release indicting that he returned $54,118.75 to the Wildlife Conservation Society at the Bronx Zoo that was held in the State’s “Unclaimed Funds” account. These monies had been deposited with the Comptroller in accordance with the State’s Abandon Property Law.
The State’s Abandoned Property Law requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned. Although Section 1402 of the Abandoned Property Law has a $20 threshold for such listing, the Comptroller uses a "$50 threshold” for the listings on his Internet website.
The list of entities [including individuals] is posted on the Internet at: http://www.osc.state.ny.us/ouf/index.htm
Among the BOCES listed are:
Name: BOCES BROOME TIOGA
Account #: 027743925/021783495
Address: 36038 MAIN STREET, BINGHAMPTON, NY 13905
Type of Property: AMTS DUE FOR UNDELIVERED GOODS/SERVICES
Reported By: NCS PEARSON INC
Year Reported: 2005
Name: BOCES GENESEE V
Account #: 036129457/029826779
Address: 3820 SHERIDAN DRIVE L M FINANCIAL SERV, ICES, AMHERST, NY 14226
Type of Property: REFUNDS/OTHER AMTS DUE UNDER POLICY TERM
Reported By: RIVERSOURCE LIFE INSURANCE CO
Year Reported: 2008
Name: BOCES III
Account #: 019331861/014601878
Address: 507 DEER PARK ROAD, DIX HILLS, NY
Type of Property: AMTS DUE FOR UNDELIVERED GOODS/SERVICES
Reported By: MASSACHUSETTS RECIPROCITY
Year Reported: 2000
Name: BOCES OF NASSAU COUNTY
Account #: 004376170/004823450
Address: 207 NEWTOWN ROAD, PLAINVIEW, NY 11803
Type of Property: CERTIFIED CHECKS
Reported By: CITIBANK NA NATIONAL COMPLIANCE GRP
Year Reported: 1993
Name: BOCES OF S [sic]
Account #: 027719930/021757679
Address: 17 BERKLEY DR, PORT CHESTER, NY 10573
Type of Property: MATURED ENDOWMENTS
Reported By: AXA EQUITABLE
Year Reported: 2005
Name: BOCES SOUTHERN WESTCHESTER
Account #: 024335761/018531004
Address: 65 GRASSLANDS, VALHALLA, NY 10595
Type of Property: NYS UNCASHED CHECKS
Reported By: NYS OFFICE OF THE STATE COMPTROLLER
Year Reported: 2004
A search using the generic "City School District" resulted in the following "hits:"
Name: CITY SCHOOL DISTRICT
Account #: 035762073/029446931
Address: PO BOX 15133, ALBANY, NY 12212
Type of Property: OUTSTANDING CHECKS ISSUED TO VENDORS
Reported By: ST PETERS HOSPITAL
Year Reported: 2008
Name: CITY SCHOOL DISTRICT
Account #: 029181381/023323026
Address: 131 WEST BROAD STREET, ROCHESTER, NY 14614
Type of Property: NYS UNCASHED CHECKS
Reported By: NYS DEPT OF TAX & FINANCE
Year Reported: 2006
Name: CITY SCHOOL DISTRICT OF ALBANY
Account #: 026256232/020398796
Address: PO BOX 1839, ALBANY, NY 12201
Type of Property: AMTS DUE FOR UNDELIVERED GOODS/SERVICES
Reported By: MCDONALDS RESTAURANTS OF NEW YORK INC
Year Reported: 2004
Name: CITY SCHOOL DISTRICTOF THE CI [sic]
Account #: 023364640/017599805
Address: KINGSTON NEW YORK FBO JAMES F MOONEY JR, KINGSTON, NY 12401
Type of Property: WAGES/PAYROLL/SALARIES/COMM/PENSION PMTS
Reported By: NATIONWIDE LIFE INSURANCE CO
while a specific name, Rochester City School, produced the following results:
Name: ROCHESTER CITY SCHOOL
Account #: 025001771/019201880
Address: 131-W BROAD ST, ROCHESTER, NY 14614
Type of Property: NYS UNCASHED CHECKS
Reported By: NYS DEPT OF TAX & FINANCE
Year Reported: 2004
Name: ROCHESTER CITY SCHOOL DIST
Account #: 019302841/014590397
Address: ACCOUNTING DEPT 131 WEST BROAD STREET, ROCHESTER, NY
Type of Property: AMTS DUE FOR UNDELIVERED GOODS/SERVICES
Reported By: STATE OF ILLINOIS
Year Reported: 1999
Name: ROCHESTER CITY SCHOOL DISTRICT
Account #: 022260456/016604359
Address: 3820 SHERIDAN DR, AMHERST, NY 14226
Type of Property: REFUNDS/OTHER AMTS DUE UNDER POLICY TERM
Reported By: METROPOLITAN LIFE INSURANCE CO
Year Reported: 2002
Name: ROCHESTER CITY SCHOOL DISTRICT
Account #: 031806729/025989990
Address: 131 W BROAD ST, ROCHESTER, NY 14614
Type of Property: NYS UNCASHED CHECKS
Reported By: NYS DEPT OF TAX & FINANCE
Year Reported: 2007
Name: ROCHESTER CITY SCHOOL DISTRICT
Account #: 030908290/025044470
Address: 164 ALEXANDER ST, ROCHESTER, NY 14607
Type of Property: NYS UNCASHED CHECKS
Reported By: NYS OFFICE OF THE STATE COMPTROLLER
Year Reported: 2006
* It often takes a bit of imagination to find an entity as the names reported in Comptroller's listing may differ from the agency's or organization's "official name" as is demonstrated above with respect to a number of BOCES and school districts. In any event, readers may wish to do a search using the simple phrase Town of or County of, which results in over one hundred "hits."
December 21, 2009
Bojarczuk v Mills, 98 NY2d 663
Joseph T. Bojarczuk was excessed when the Utica City School District abolished his position when the Oneida-Herkimer-Madison Board of Cooperative Educational Services (BOCES) took over its Alternative Educational Program. As Bojarczuk was “transferred to BOCES” with his position, Utica did not include him on its “preferred list” for reemployment with the District should a suitable vacancy occur while his name was on the list.
According to Utica, Bojarczuk "was afforded seniority rights under section 3014-a," and he had received all the rights to which he was entitled in connection with the layoff. The Commissioner of Education sustained Utica’s actions.
The Court of Appeals, however, disagreed, noting that Education Law Section 3014-a(4) provides that “[t]his section shall in no way be construed to limit the rights of any of such employees set forth in this section granted by any other provision of law.” Accordingly, ruled the court, the fact that Bojarczuk had been provided with Section 3014-a seniority rights did not preclude his having “additional recall rights” in the District under Sections 2510(3) and 3013(3) of the Education Law.
The decision states that a teacher whose position has been abolished during a BOCES takeover of a school district program has the right to be placed on the school district's preferred eligibility list for employment for seven years in accordance with sections 2510(3) and 3013(3), provided the teacher otherwise qualifies for the statutes’ benefits.
As the lower courts had not determined whether or not Bojarczuk qualified for placement on the Utica School District preferred list, the case was remanded back to Supreme Court for such a determination.
The basic principle expressed by this decision:
If a teacher is excessed and his or her name is placed on a preferred list upon the abolishment of his or her teaching position, he or she is entitled, subject to seniority considerations, to be appointed to the next available vacancy in the school district in the tenure area in which he or she is certified the district decides to fill, unless he or she is found unqualified for that position by the District.
The fact that the teacher may obtain employment in another jurisdiction does not truncate his or her rights to reinstatement from the preferred list by the school district.
Some key considerations concerning preferred lists:
1. A preferred list comes into being when an individual having tenure or permanent status in the title is excessed as the result of the abolishment of a position.
2. Unless otherwise disqualified, an individual's name is continued on the preferred list until (a) he or she is reinstated from the list to the same or a similar position or (b) his or her eligibility for reinstatement from the list expires. Depending of the controlling statute providing for the establishment of the preferred list, an individual’s name may on a preferred list from two years, i.e., a “special military list” [Military Law Section 243.7] to seven years under the Education Law.
3. If additional positions are abolished on a later date, the names of the more recently excessed individuals would be placed on the same preferred list on the basis of seniority as among themselves. In other words, an individual who is first on an existing preferred list would be displaced to a lower rank on the list if the names of an individual having greater employment seniority are placed on the same preferred list at a later date.
4. Preferred lists do not "expire" but continue in existence as long as there is at least one eligible individual qualified for appointment from the list.
To illustrate this last point, assume that Bojarczuk is never reinstated from the preferred list. On the day before the last day of the seventh year from date when Bojarczuk's name was placed on the preferred list another layoff takes place and the name of the individual excessed is placed on the preferred list.
For one day both Bojarczuk name and this second individual's name are on the preferred list, in order of relative seniority as among themselves. If neither is reinstated from the preferred list on the following day, the preferred list continues in existence but thereafter would include only the name of the second individual. The preferred list then continues in existence as long as the second individual continues to be eligible for reinstatement from the preferred list.
Reinstatement from a preferred list, however, may raise other concerns. For example, nepotism. Section 3016 of the Education Law deals with the issue of the employment of a relative by blood or marriage of a member of its school board as a teacher by the district. In essence, it requires that any such appointment must be approved by a two-thirds vote of the board.
Does Section 3016 apply in situations involving the reinstatement of a relative of a school board member as teacher from a preferred list?
Barbara Gmelch thought it did and asked the Commissioner of Education to remove a school board member from his position because the board member did not advise the board that his daughter was among a number of teachers to be reinstated from a preferred list that resulted from the lay off of a number of teachers and that a two-thirds vote would be required with respect to her employment.*
The Commissioner dismissed Gmelch's appeal, agreeing with the school board Section 2510 mandates the reinstatement of a teacher from a preferred and thus it was required to reinstate the relative of a board member regardless of his or her relationship to the member.
In this instance the Commissioner ruled that reinstating the board member's daughter "was required by law and not within its discretion to decline" [Commissioner of Education Decision #12794].
* The record indicates that the teacher was employed by the district prior to the election of her father to the board.
For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
A higher standard of fitness and character is required of police officers than is required of “ordinary civil servants”
Matter of Bassett v Fenton, 2009 NY Slip Op 09338, Decided on December 17, 2009, Appellate Division, Third Department
New York State Trooper Timothy J. Bassett was found guilty of three charges of misconduct and one count of conduct tending to bring discredit upon the Division of State Police. The penalty imposed: termination.
In his appeal challenging the penalty imposed, Bassett argued that the events underlying the charges were "a manifestation of his temporary mental illness for which he has received treatment and for which he should not be terminated."
Although the Appellate Division conceded that the record before it “sets forth in detail [Bassett’s] emotional stress,” it said that it was unpersuaded, under the particular circumstances herein, that the penalty of dismissal was "so disproportionate to the offense as to shock our sense of fairness."
Significantly, said the court, "a State Trooper holds a position of great sensitivity and trust" and "[a] higher standard of fitness and character pertains to police officers than to ordinary civil servants." The Appellate Division then noted that the recommendation to terminate Bassett focused mainly on his actions after his mental health treatment and during the disciplinary hearing when, as the Hearing Board found, "he repeatedly contradicted his own prior sworn statements" and failed to "accept personal responsibility" for conduct that he, as a State Trooper, should know was wrong….”
Given the fact that the "determination of an appropriate sanction involves a matter of internal discipline within a law enforcement organization, [and] is entitled to deference" the Appellate Division said that it found “no basis to disturb the penalty imposed….”
Village of Homer v County of Cortland and Joshua Parente, 15 Misc.3d 1123(A)
The Village of Homer appointed Joshua Parente as a police officer. Parente served as a police officer of the Village until May 20, 2005, when he left his position to take a job with the Cortland County Sheriff’s Department.
When Parente was hired by the Village, he was given a copy of an Employment Handbook. The Handbook specifically indicated that he would have to reimburse the Village a percentage of his police training costs if he left position during the three-year period following the completion of his training.
Specifically, the Handbook, which Parente acknowledged having received and read, stated that he would be responsible for paying 100% of the training costs incurred by the Village if he left before one year of service; for paying 60% of such costs if he left during his second year of service and for paying 35% of such costs if he left during his third year of service.*
The Village sued (1) to recapture a portions of its training costs from Parente and (2) to recover the statutorily specified portion of such costs from Cortland County, Parente’s successor employer, pursuant to General Municipal Law Section 72-c. The Village claimed the County owed it $47,803.72; the County said it owed the Village $10,633.80.**
Supreme Court Judge Phillip R. Rumsey ruled that the Village was entitled to partial reimbursement from the County for the salary and benefits provided to Parente during his training period plus “44.796% the direct costs of the training itself (tuition, books, ammunition, supplies, and travel costs)” paid by the Village.
Judge Rumsey then issued a decision indicating that the Village and the County would have 30 days to either (1) submit a consent order, if they can agree to the amount to be paid by the County; (2) submit affidavits and documentary evidence, if they agree that the amount shall be determined by the court on the basis of written submissions; or (3) advise the court if either party desires a hearing on the issue of the amount owed.
* Parente defaulted in answering the Village’s complaint and failed to appear in the action. Accordingly, the court ruled that Village was entitled to a default judgment against Parente for the amount sought in the Village’s complaint against him, $9,004.20.
** The County did not contest the Village’s assertion that the County was liable for reimbursement of training costs pursuant to General Municipal Law Section 72-c, but contended that the Village had incorrectly calculated those costs. The County petitioned for summary judgment limiting its liability to $10,633.80
Village of Tarrytown v Tarrytown Police Asso., 31 PERB 4540
A zipper clause in a Taylor Law collective bargaining contract sets out the fact that the parties “agree that to the extent agreement is possible on negotiable items it has been reached in [the] agreement.”
In the Village of Tarrytown case, the Assistant Director of Public Employment Practices and Representation, Kenneth J. Toomey, was asked to determine if a zipper clause precluded negotiations providing for paid time off for police officer’s called to jury duty after the contract was ratified. The subject had not been discussed during negotiations of the 1995-1997 collective bargaining agreement between the parties.
In response to an amendment to the law eliminating the statutory exemption of police officers from jury duty that took effect on January 1, 1996, the village unilaterally implemented a new jury duty policy for its police officers.
The village agreed to negotiate the change but when unable to resolve the issue to the mutual satisfaction of the parties, “the Village submitted its final jury duty proposal ... and suggested that the issue be addressed in upcoming negotiations for a new contract since mediation and [interest] arbitration on one topic is ill-advised.”
On November 21, 1996 the village rescinded its February 27 jury duty policy and subsequently required officers called to jury duty to use their accrued time accruals or go on leave without pay.
The village defended itself from the union’s improper practice charge by arguing that the union’s proposal was not arbitrable because it had no obligation to negotiate the provision in view of the zipper clause set out in the 1995-97 agreement.
Toomey rejected the argument, pointing out that at the time the agreement was being negotiated “no issue regarding jury duty leave or procedures for police officers existed because police officers were not subject to service on juries.”
Accordingly, it must be assumed that the issue of jury duty was not, and could not reasonably been expected to be, a subject of collective bargaining.
The Village apparently conceded that “jury duty leave” was a mandatory subject of collective bargaining; it simply relied on the zipper clause to avoiding reopening negotiations of the 1995-97 agreement.
Toomey made two significant findings:
1. A “zipper clause” does not preclude the reopening of negotiations concerning a subject which has become negotiable as the result of a statute enacted during the term of the agreement; and
2. Compulsory interest arbitration is available in the event of an impasse in negotiations arising in the course of the reopening of negotiations during the term of a collective bargaining agreement.
Toomey cited the Court of Appeals ruling in City of Newburgh v PERB, 66 NY2d 166, decided in 1997, as authority for his conclusion that the matter was subject to interest arbitration. In Newburgh the Court found that interest arbitration is available to resolve disputes “arising during the term of a collective bargaining agreement.”
Agency’s initial decision sustaining an employee’s out-of-title work grievance overturned by the Governor’s Office Of Employee Relations
Matter of Cushing v Governor's Off. of Empl. Relations, 58 AD3d 1095
The Governor's Office of Employee Relations denied Judy M. Cushing's out-of-title work grievance that alleged that she had been required to perform out-of-title work on 34 occasions between January 2006 and July 2006.
The decision indicates that at various times in 2006 Cushing was directed by her employer, the Office of Mental Hygiene, [OMH] to fill in for her supervisor when he was absent. Cushing's job is classified as a "Nurse 2 (Psychiatric)" (N2), Salary Grade 16, while her supervisor's job is classified as a "Nurse Administrator I" (NA1), Salary Grade 20.
Although OMH initially sustained the grievance, its decision was ultimately overturned by Governor's Office of Employee Relations (GOER) and the grievance was denied.*
Cushing and the president of the union representing her job title filed an Article 78 action in an effort to annul GOER's determination.
The Appellate Division said that GOER’s review of the duties described in the N2 job classification standard noted that in the event a NA1 is not on duty, a N2 is "capable of assigning duties to staff in order to provide adequate coverage; making clinical rounds on wards to assess nursing care needs; evaluating work performance of subordinates; communicating daily nursing needs to appropriate supervisors; accounting for the issuance of controlled drugs and narcotics; and conducting performance evaluations."
After taking the foregoing considerations into account, GOER concluded that Cushing was not required to perform out-of-title work.
As judicial review of GOER's determination in this context is limited to whether it is arbitrary, capricious or without any rational, the court concluded that in “the absence of compelling evidence establishing that [Cushing] performed distinctive aspects of the NA1 job title that differentiated it from the N2 job title,” there was no basis for disturbing GOER's determination.
In an earlier case involving a decision by the Office of Court Administration to “ignored a Step 1 grievance determination" (by one of its administrators), the Court of Claims found that only the employee or the Union could appeal a grievance determination "apparently (because) it was assumed in the Contract that the State would follow any Step 1, 2 or 3 decision since these decisions would be made, respectively, by the State's own supervisors, officers or personnel agency" [Taylor v State of New York, 1982].
The Court of Claims noted there was no reason or basis for the employees to appeal in this instance as they had won their grievance at Step 1 and obtained a totally satisfactory decision from the employees’ prospective.
A different result obtained in Weed v Orange County, 209 A.D.2d 628, decided with 209 A.D.2d 627, motion for leave to appeal denied, 85 N.Y.2d 810. In Weed, the Orange County Commissioner of Personnel's refusal to implement a grievance award made a supervisor in the employee's favor "as a first step determination."
The Appellate Division ruled that under the controlling collective bargaining agreement "the Commissioner of Personnel is given sole discretion in granting paid leave." Accordingly, ruled the court, the County was not required to comply with the determination of Weed's supervisor, who initially sustained Weed’s grievance.
* The decision does not indicate the means by which GOER attained jurisdiction over the grievance.
County Personnel Department refuses to certify the payroll following the appointment of an individual not among the three highest on the eligible list
Matter of Gramando v Putnam County Personnel Dept., 58 AD3d 842
The Carmel Central School District appointed Joseph Gramando to the position of Director of School Facilities, Operations, and Transportation.
When Paul Eldridge, Director of the Putnam County Personnel Department, refused to certify the payroll appointing Gramando to the position, Gramando filed a petition in the nature of mandamus seeking a court order compelling Eldridge to certify the payroll appointing him to the position.
Supreme Court, granted Gramando’s petition and directed Eldridge:
1. To certify the payroll with respect to Gramando’s appointment to the position “until a new civil service examination for the position is administered” and
2. To administer a new civil service examination for that position.
Supreme Court’s order also permanently enjoined instituting civil or criminal proceedings “against the Carmel Central School District Board of Education in connection with the payment of Gramando’s salary.”*
The case arose when the Carmel CSD appointed Gramando to the position despite the fact that he was not was not among the three individuals "standing highest on such eligible list" as mandated by Section 61(1) of the Civil Service Law. The District’s justification for its action: “Gramando was one of only two potential candidates on the eligible list who actually satisfied all of the minimum qualifications for appointment to the position to be filled.”
Although the announcement for the examination that was ultimately certified for appointment to the position required that successful candidates possess a Supervisor Asbestos License at the time of appointment, Eldridge subsequently determined that possession of that license at the time of appointment was unnecessary because a successful candidate could obtain such license within a reasonable time after being selected for the appointment.
Finding that Eldridge acted properly and within his authority when he determined that the possession of the license at the time of appointment was not a requirement for appointment to the position and candidates on the eligible list who would not possess the license at the time of his or her appointment could lawfully certify as eligible for appointment, the Appellate Division decided that the District “acted illegally in appointing Gramando on the basis of his possession of the license, since more than three individuals who were certified for appointment ranked ahead of him on the list.”
Thus, said Appellate Division, the County Personnel Department “had a rational basis for refusing to certify the payroll as to Gramando … and its actions in so doing were not arbitrary or capricious,” vacating the lower court’s determination to the contrary in this regard.
Finally, the Appellate Division ruled that “Under the particular circumstances of this proceeding, the Supreme Court improperly directed the County to administer a new civil service examination.”
* §101 of the Civil Service Law makes it a misdemeanor to pay salary or compensation for which certification has been refused by the State Department of Civil Service or the municipal civil service commission having jurisdiction.
Francis v City of New York, 15 Misc.3d 1123(A)
Michael A. Francis’ application for employment as a New York City Firefighter was rejected by the Department. He sued, claiming that “his examination results were well above average” as his adjusted final average was 101.921. He also submitted proof of his certification as a New York State Emergency Medical Technician or Certified First Responder.
Although the Department did not provide any reason for its rejection of Francis for appointment as a firefighter, Francis speculated that it “was the [Department’s] wrongful consideration of his prior criminal record” that was the reason for his disqualification. According to Francis, his criminal record consisted of a single (unspecified) violation that was ultimately dismissed and there “is no nexus between the alleged criminal conduct and the responsibilities of a New York City Firefighter.”
In rebuttal, the Department argued that Francis did not show that its decision was arbitrary, capricious, an abuse of discretion or made in bad faith and neither Article V, Section 6 of the New York State Constitution nor Civil Service Law Section 61 mandates the selection of the individual with the highest ranking on an eligible list. Further, the Department said that its decision not to appoint Francis was made in accordance with the so-called “rule of three.”*
The Department also contended that “it is only where the appointing agency provides a reason for its decision that the court may consider same in assessing whether it acted arbitrarily” citing Redman v New York City Transit Authority, 14 AD2d 911. In contrast, argued the Department, “where, as here, no reason [for its not selecting a candidate] is provided … the decision of the appointing body may not be disturbed.”
Essentially the Department argued that Francis’ petition “contains no legally sufficient ground for reversal” since it is only Francis’ “conclusory assertion that he was not appointed due to his criminal record” and this representation “is wholly speculative and not entitled to any weight.”
In deciding in favor of the Department Judge Philip Minardo said:
1. It is well established that a person whose name appears on an eligible list does not have a vested right of appointment … ., he or she has no enforceable right to be appointed to an available position;
2. Examination scores are not intended to be the sole determinant of fitness, as “the appointing authority must be cloaked with the power to choose a qualified appointee who possesses all the attributes necessary for the responsible performance of his duties;”
3. Civil Service Law Section 61(1) expressly permits an agency to select any one of the three persons standing highest on the eligible list;
4. Administrative actions taken arbitrarily or in bad faith will not be tolerated; and
5. The petitioner in such circumstances bears a heavy burden of proof … [and] conclusory allegations and speculative assertions will not suffice [to meet this burden].
As the court ruled that Francis’ allegation that he was denied appointment due to the agency’s wrongful consideration of a prior criminal record was without any factual basis on the record before the court, his petition was denied and the proceeding was dismissed.
* In Matter of Professional, Clerical, Technical Employees Association (Buffalo Board. of Education, 90 NY2d 364, the Court of Appeals upheld the validity of a collective bargaining agreement that provided for appointment pursuant to “a rule of one” -- the selection of the highest scoring candidate on a civil service examination for appointment to a vacancy.
Union presses an appeal notwithstanding its concession that a final administrative determination rendered the appeal moot
In re Civil Service Technical Guild, Local 375, AFSCME, v The City of New York, et al, 58 AD3d 581
New York State Supreme Court Justice Carol R. Edmead denied Local 375’s application for “preliminary injunctive relief” to prevent the City from implementing a new timekeeping system pending a final determination by City’s Board of Collective Bargaining ruling on an improper employer practice charges filed by the Local.
Justice Edmead, instead, granted the City's cross motion to dismiss the Local’s petition in its entirety.
Subsequently the Board had made its determination. Local 375, conceding that the Board’s final determination on the improper practice charge it had filed made its appeal moot, but nevertheless wished to pursue its appeal, representing that it had decided to “assumed the cost of an appeal because of the disproportionate precedential value this erroneous opinion will have.”
The City response was “simply to defer” to the Appellate Division’s exercising its discretion to vacate or sustain Supreme Court’s order "in order to prevent [it] . . . from spawning any legal consequences or precedent.”
The Appellate Division decided to vacate Supreme Court's order.
December 18, 2009
Matters encompassed within the NYC Police Commissioner's disciplinary authority are excluded from collective bargaining as a matter of policy
Matter of City of New York v Patrolmen's Benevolent Assn. of the City of New York, Inc., 2009 NY Slip Op 09314, decided on December 17, 2009, Court of Appeals
This litigation followed the New York City Police Department’s (NYPD) informing various police unions, including the Detectives Endowment Association (DEA), and the Sergeants’ Benevolent Association (SBA) that it intended to use a methodology for hair testing known as radioimmunoassay (hereafter, RIAH or hair analysis) for all drug screening of uniformed members. The unions protested, contending that NYPD's decision was subject to collective bargaining.
In a proceeding before the City’s Office of Collective Bargaining [OCB] entitled Matter of Detectives Endowment Assn. [City of N.Y.], 77 OCB 37, OCB said that the issue before it as "whether [the] NYPD's adoption of RIAH (hair) testing as the prescribed mechanism of drug screening under circumstances instead of testing only urine for drugs constitute[d] a unilateral change in a mandatory subject of bargaining." OCB concluded that it did ruling that an expansion of categories subject to testing (i.e., the adoption of additional testing triggers) and a change in testing methodology were subject to collective bargaining.
In this appeal the DEA and the SBA, the two unions remaining in this litigation, asked the Court of Appeals to endorse PERB’s 1994 decision in Matter of Nassau County Police Benevolent Assn. [County of Nassau], 27 PERB ¶ 3054 and “to opine generally that the Police Commissioner's decision to drug test uniformed officers is a managerial prerogative, but the "procedures" to implement his decision are mandatorily negotiable.”
The court said that there were two problems with DEA’s and SBA’s objective. First, the Police Commissioner's authority under New York City Charter §434(a) and Administrative Code §14-115 (a) was not considered in County of Nassau; and second, the only "procedures" that the DEA and SBA challenged were testing methodology and testing triggers.
Thus, said the Court of Appeals, the narrow issue decided by the Board, and therefore the only issue before it was "whether [the] NYPD's adoption of RIAH (hair) testing as the prescribed mechanism of drug screening under circumstances in which, prior to August 1, 2005, [the] NYPD tested only urine, constitute[d] a unilateral change in a mandatory subject of bargaining." The court said that “In light of our decision in PBA v PERB, [the Nassau case] we conclude that it does not.”
Quoting from the earlier Supreme Court ruling in this action that sustained NYPD's decisions and which the Appellate Division reversed [see 56 AD3d 70], the Court of Appeals said “"if the Commissioner is not at liberty to use a particular drug test even after determining that [it] would be more effective at exposing drug use among police offices, then his ability to carry out his disciplinary 'authority' has been significantly limited. Similarly, decisions about when and where to use such a test — especially in the area of random testing — has an obvious bearing [on] how effective efforts to detect drug use will ultimately be."
Addressing the question of whether drug testing methodology and testing triggers are included within the Police Commissioner's disciplinary authority and therefore are excluded from collective bargaining as a matter of policy, the Court of Appeals clearly indicated that although not every step that the Commissioner takes or every decision that he makes to implement drug testing is excluded from bargaining, in the context of the issues raised in this litigation the Appellate Division decision should be reversed.
Annulling four of forty-one specifications of alleged misconduct, court sustains finding the employee guilty of the surviving charges and the penalty
Thomas Lauro, Commissioner of the Westchester County Department of Environmental Facilities, adopted the report and recommendation of a hearing officer finding Miriam Baht Levi guilty of 41 specifications of incompetence and/or misconduct, and suspended her from employment without pay for a period of 60 days.
Levi appealed, and although the Appellate Division annulled specifications 14, 18, 40, and 41 of the disciplinary charges filed against her, confirmed the Commissioner’s determination and the penalty he imposed.
Levi, a receptionist at the Westchester County Department of Environmental Facilities, was charged with arriving late to work on 35 occasions over a period of 15 months, and with having failed to call in ahead of time on four of those 35 occasions.
The Appellate Division ruled that:
1. The hearing officer properly admitted into evidence time sheets indicating the dates and times Levi was late to work.
2. Although Levi alleged that her tardiness was due to arthritic knees and thus she was entitled to a reasonable accommodation, which was not provided, she “did not present any medical evidence to substantiate her claim that she suffers from a "physical impairment" such as arthritis.”
3. There was no evidence that during the period in question Levi informed the Department of her alleged disability or that she requested a reasonable accommodation of her alleged disability.
Finding that the 37 surviving specifications of alleged misconduct were supported by substantial evidence and that the penalty imposed was not so disproportionate as to shock the judicial conscience as a matter of law, the so-called Pell standard, [Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222], the Appellate Division dismissed Levi’s appeal.
Gutierrez v State of New York, 58 AD3d 805
Typically lawsuits in which the issue is whether or not timely notice of a claim has been made involve individuals attempting to sue the State or a political subdivision of the State.
The Gutierrez case concerns such a requirement except that in this instance the State is faulted for failing to give the “indemnifying party” – The Compass Group USA -- timely notice of a claim.
Maria Gutierrez, an employee of the Chartwell Division of Compass Group USA, was injured when she slipped and fell on a wet floor inside a rest room in the main dining hall at the State University of New York at Purchase. On October 8, 2004, Gutierrez served a notice of intention to file a claim on the State Attorney General pursuant to Court of Claims Act §10(3). Gutierrez alleged that she had been injured as a result of the State's negligence and said that she would commence a lawsuit against the State if payment for her injuries were not forthcoming.
Gutierrez did not receive the payment she demanded and on March 24, 2005, she served a summons and complaint on the State seeking to recover damages for personal injuries [the main claim]. Twelve days later the Attorney General's office notified Compass of the Gutierrez claim and requested that Compass hold the State harmless and defend it against the claim as required by the terms of the Purchase contract.
According to the decision, Compass, through its Chartwell Division, had a contract to provide food and cafeteria services at Purchase. The agreement also provided that Compass was to "indemnify, defend, and save harmless" the State of New York against any claim for liability caused by Compass's negligent acts or omissions and that Compass had to receive "[n]otification of an event giving rise to an indemnification claim . . . 30 days following receipt of such claim."
Further, the agreement provided that any such indemnification claim would be "expressly subject to and conditioned upon compliance with the Notice provisions hereunder."
Compass rejected the State's request “to defend and indemnify” it as untimely and, in response, the State filed a petition seeking a judgment declaring that Compass was required to defend and indemnify it in the main claim.The Court of Claims dismissed the State’s petition, holding that Compass was not required to defend the State in the main claim because the State had failed to comply with the contractual provision requiring it to provide notice of an event giving rise to an indemnification claim to Compass within 30 days of its receipt of such a claim.
The Appellate Division sustained the Court of Claims’ decision, holding that the State's obligation to provide the notice of the Gutierrez claim was triggered when it received Gutierrez' notice of her intention to file a claim unless she received compensation for the injuries she had allegedly sustained in the accident. Accordingly, said the court, the notification that the State gave Compass was untimely as the contract required giving Compass notice within 30 days of October 8, 2004, the date on which Gutierrez initially submitted her claim to the Attorney General and demanded compensation.
Appointing authority directed to set a new disciplinary penalty after court vacates a finding of guilt on one of two specifications
Matter of Borrelli v Kelly, 59 AD3d 164
New York City Police Commissioner filed disciplinary charges against New York City police officer Robert Borrelli. Specification No. 1 alleged that Borrelli had “knowing association with a person or organization reasonably believed to be engaged in, likely to engage in or to have engaged in criminal activities.” Specification No. 2 alleged that Borrelli had failed “to properly safeguard his off-duty firearm.”
Although Borrelli admitted he was guilty of failing to “properly safeguard his off-duty firearm,” as charged by Specification 2, he contended that he was innocent with respect to Specification 1. The Commissioner found him guilty of both Specification 1 and Specification 2 and imposed as the penalty the forfeiture of 15 vacation day.
Borrelli appealed the Commissioner’s determination with respect to Specification 1.The Appellate Division sustained Supreme Court’s ruling vacating the Commissioner’s finding Borrelli guilty of Specification No. 1.The Appellate Division said that the evidence at the disciplinary hearing was “inadequate to support the finding of guilt” on Specification No. 1 as it established only that Borrelli had infrequent contact with a lifelong friend after the friend was arrested in January 2003 on charges of driving while intoxicated and assault in the third degree.
In the opinion of the Appellate Division, “Neither that contact, nor [Borrelli’s] appearance at the scene of the friend's subsequent arrest as well as at the precinct at which the friend was being held, in the presence of appropriate police personnel, constituted substantial evidence of [Borrelli’s] guilt of Specification No. 1.”As but a single penalty was imposed covering both specifications, the Appellate Division remanded the matter for the determination of a new penalty with respect to Specification 2 based on Borrelli plea of guilty to that Specification.
Appealing an administrative decision as provided in a CBA does not toll the Statute of Limitations for filing an Article 78 action
Pak v New York City Dept. of Educ., 22 Misc 3d 1117(A)
Kifan Pak, a probationary teacher, was told that he would be terminated from his position effective February 28, 2007. Pak then filed an administrative appeal but his dismissal was ultimately sustained. Pak was advised of this determination by a letter dated September 11, 2007.
Pak commenced an Article 78 proceeding challenging his dismissal. The Board of Education, in response to his petition, filed a motion to dismiss Pak’s petition as untimely.According to the decision, after receiving the letter dated February 21, 2007 advising him that he would terminated effective February 28, 2007, Pak filed an administrative appeal pursuant to the collective bargaining agreement [CBA] between the Board of Education and Pak collective bargaining representative. An administrative hearing was subsequently held and on January 15, 2008 Pak was advised that his appeal was denied.
The next day Pak initiated an Article 78 action to vacate the decision.
Justice Martin Schneier granted the Board’s motion to dismiss Pak petition as untimely.
An Article 78 proceeding challenging an administrative decision, said the court, must be commenced within four months of the determination that is being challenged. "A petitioner is aggrieved once the agency has issued an unambiguously final decision that puts the petitioner on notice that all administrative appeals have been exhausted." In this instance the statute of limitations commenced running when Pak was initially told that he would be terminated effective February 28, 2007.
Justice Schneier ruled that the fact that Pak was able to avail himself of “the internal administrative review of a final determination to terminate a probationary teacher as provided for in the teacher's union contract” did not toll or extend the four months limitation period because this is only a procedural contractual right, not a constitutional or statutory right.
Here, said the court, the decision by the Board of Education to terminate Pak's probationary teacher's services on February 28, 2007, constituted the final decision of the matter.
Accordingly, the four months statute of limitations began to run on February 28, 2007, the date of petitioner's final termination, and Pak was required to commence this proceeding on or before June 28, 2007. Thus his initiating his lawsuit on January 15, 2008, was untimely and the proceeding is time-barred. under CPLR 217.
An emergency vehicle operator may not assert Vehicle and Traffic Law §1104’s “protection from liability” where the operator is the plaintiff
Ayers v O'Brien, 2009 NY Slip Op 09313, Decided on December 17, 2009, Court of Appeals
Marc A. Ayers, a Broome County Deputy Sheriff, was on patrol. In the course of executing a U-turn to pursue a speeding vehicle, his car was struck by another vehicle, owned and operated by James E. O’Brien.
Ayers commenced action alleging serious injury as a result of O’Brien’s “common law negligence.”
The Court of Appeals, noting that “Operators of authorized emergency vehicles are protected from liability for conduct privileged under Vehicle and Traffic Law §1104, unless their conduct rises to the level of reckless disregard.
In this personal injury action, said the court, the issue is whether an emergency vehicle operator may assert that same statute in an action in which he is the plaintiff, thereby preventing the defendant from raising a comparative fault defense.
The Court of Appeals said that he may not.
The Appellate Division held that Ayers, as a plaintiff, is not entitled to the protections afforded under Vehicle and Traffic Law §1104 (e); the Court of Appeals agreed, holding that “the reckless disregard standard of liability does not apply in determining the culpable conduct of the operator of an emergency vehicle when he or she is the individual bringing the action.”
In the words of the court, “Vehicle and Traffic Law §1104(e) cannot be used as a sword to ward off a comparative fault defense. It is to be applied only when the emergency vehicle operator is sued or countersued.”
Employee protected by Title VII if he or she suffers retaliation by the employer after reporting workplace race or gender discrimination
Crawford v Metropolitan Government Of Nashville And Davidson County, Tennessee, US Supreme Court, No. 06–1595
The genesis of this ruling was an internal investigation into rumors of sexual harassment of employees by the Metro School District Employee Relations Director. Vicky S. Crawford told the investigator that the Director had sexually harassed her. The school District did not take any action against the Director but shortly thereafter terminated Crawford for alleged embezzlement, together with two other employees that had told the investigator of incidents of sexual harassment by the Director.
Crawford filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of the employee relations director’s behavior, in violation of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any . . . employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter”(opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause).
Although both federal district court and the Court of Appeals for the Sixth Circuit granted Metro’s motion for summary judgment, the U.S. Supreme Court reversed.
Justice Souter, writing for the majority, [Justice Alito wrote a concurring opinion] said that “Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. forbids retaliation by employers against employees who report workplace race or gender discrimination.”Here the question was whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. The Supreme Court held that it did.
December 17, 2009
Executive Order 7 EO 33*
7 Executive Order 33, signed by Governor Patterson on December 1l7, 2009, prohibits State departments and agencies from discriminating against any individual on the basis of the individual’s gender identity and expression in any matter pertaining to employment.
The Governor’s Office of Employee Relations, in consultation with the Executive Director of the Division of Human Rights, is charged with developing and implementing “clear and consistent guidelines prohibiting gender identity and expression discrimination” by all State departments and agencies.”
As a result of promulgating Executive Order 33, New York State joins 13 other states and more than 90 municipalities and counties – including the City of New York – in prohibiting discrimination on the basis of gender identity and expression.
* Executive Order 7 EO 33 indicates that this is the 33rd Executive Order issued by Governor Paterson. Executive Orders issued by previous governors are designated 1.xx, 2.xx, 3.xx, etc., commencing with Executive Order 1.1 issued by the late Governor Nelson A. Rockefeller.
Matter of Ebling v Town of Eden, 59 AD3d 978
The Appellate Division confirmed the dismissal of Stephen Ebling from his position following a hearing pursuant to Civil Service Law § 75.
The court rejected Ebling’s contention that the evidence presented at the hearing did not support his being found guilty of the charges preferred against him.
It noted that the evidence is sufficient if it consists of "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."
In addition, the Appellate Division ruled that Ebling had not been denied due process and a fair hearing by the admission of hearsay evidence against him.
Article 75 petition seeking to vacate a disciplinary arbitration award terminating a tenured teacher dismissed as untimely
Matter of Awaraka v Board of Educ. of City of New York, 59 AD3d 442
Josephine Awaraka, a tenured teacher employed by the New York City Board of Education, was found guilty of eight specifications of misconduct in a hearing conducted pursuant to Education Law § 3020-a. In a decision dated July 24, 2006, the hearing officer imposed as a penalty, Awaraka’s dismissal from her position with the District.
The Appellate Division’s decision reports that on July 24, 2006, Awaraka and her attorney were each sent a copy of the hearing officer's determination.
On September 11, 2006, Awaraka filed a petition pursuant to CPLR Article 75 in an effort to vacate the hearing officer’s determination.
The District objected, contending that Awaraka’s Article 75 action was untimely.
Supreme Court, Kings County, granted the District’s motion to dismiss Awaraka’s petition, finding that, indeed, Awaraka was time-barred and dismissed her Article 75 petition. The Appellate Division affirmed.
The statute of limitations for challenging a Section 3020-a disciplinary determination is very short. Education Law §3020-a(5) provides that "[n]ot later than ten days after receipt of the hearing officer's decision, the employee . . . may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to [CPLR 7511]."
In this instance Awaraka had designated the attorney assigned by her union to be her agent for service during the pendency of the entire grievance proceeding before the hearing officer. The attorney was served with a copy of the decision of July 24, 2006 but Awaraka did not file her Article 75 petition until September 11, 2006, which was more than ten days after her attorney was served with the disciplinary determination.
As such, said the Appellate Division, “this proceeding is time-barred,” and sustained the lower court’s ruling.
Weeks v State of New York, 198 AD2d 615, discusses the procedural requirements that must be met in order to challenge an arbitration award pursuant to Article 75 and sets out guidelines addressing the filing a timely challenge to an arbitration award.*
The decision distinguishes between situations where the grievant is represented by an attorney and where he or she is represented by a union representative who is not an attorney.
As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney isdeemed the individual's agent [see Bianca v Frank, 43 NY2d 168].
The Appellate Division said that Section 7506(d) of the CPLR specifically provides that where a party in an arbitration is represented by an attorney, papers to be served on a party are to be served on the attorney.
In contrast, the court held that there was no similar statutory requirement when a party elects to be represented by a union representative who is not an attorney.
The court said that "although service of the arbitration award on the union representative is a matter of courtesy ... such service does not trigger the limitations period for seeking to vacate the award...." That period begins to run only upon delivery of the decision to the party.
Although the Weeks decision addressed a situation arising under a disciplinary arbitration procedure, it would probably be viewed as applicable in other types of administrative proceedings such as a disciplinary action under 75 of the Civil Service Law when aperson is represented by a union official who is not an attorney.
In 1978 Civil Service Law Section 75.2 was amended to allow an individual against whom charges were preferred to be represented by a representative of a recognized or certified employee organization. Prior to the effective date of the amendment only an attorney could represent the individual against whom disciplinary charges were filed.
In view of the rationale underlying the Weeks decision, where an individual is represented in an administrative proceeding by a person not an attorney, it would seem prudent to send copies of all papers to both the individual and the individual's representative.
* N.B. The statute of limitations set out in Article 75 is ninety days; in cases involving a motion to vacate an arbitration award issued pursuant to Section 3020-a of the Education Law the time limit is, by statute, ten days.
Daley v County of Erie, 59 AD3d 1087
Patrick L. Daley, an Eric County employee, sued the County alleging that it had violated its Employee Suggestion Program and thus was liable for damages for “breach of contract.”
Under the Program employees who submitted cost-saving suggestions that were implemented by County were given monetary awards.
When Supreme Court denied the County’s motion to dismiss Daley’s complaint, it appealed but it received no relief from the Appellate Division.
Citing Didley v General Motors Corp., 837 F Supp 535, the court said that "It is well established that the processing of a suggestion pursuant to an employee suggestion plan creates a contractual relationship between the employee and the employer under the rules of the plan."
Accordingly, Supreme Court was correct when it ruled that Daley had stated a cause of action for breach of contract.
The Appellate Division then turned to the County’s contention that even if Daley had stated claim for breach of contract, it was untimely because an Article 78 action had to be commenced within the four-month statute of limitations.It rejected the County’s theory noting that "The proper vehicle for seeking damages arising from an alleged breach of contract by a . . . governmental body is an action for breach of contract, not a proceeding pursuant to CPLR article 78."
New York State's statute of limitations for suing for breach of contract is six years.
Matter of Utica City School Dist. v Fehlhaber, 59 AD3d 957
The Utica City School District initiated a Section 75 disciplinary proceeding against Craig S. Fehlhaber’s employment as its Superintendent of Buildings and Grounds. The proposed penalty to be imposed: termination.
Fehlhaber asked Supreme Court to issue a subpoena duces tecum pursuant to CPLR 2307* requiring the District to give him e-mails sent or received by the Superintendent of petitioner, Utica City School District, and a certain member of petitioner's Board of Education (Board of Education) relating to public matters and a list of the e-mail addresses used by members of the Board of Education, including privately maintained e-mail addresses "where public business is believed or known to be conducted."
The Appellate Division sustained Supreme Court’s denying Fehlhaber’s motion, finding that the demand for such material “overly broad … and [Fehlhaber] failed to establish the requisite ‘factual predicate' [that] would make it reasonably likely that documentary information will bear relevant and exculpatory evidence.’" In the words of the Appellate Division, “the motion was nothing more than a fishing expedition and an attempt to circumvent the fact that there is no right to discovery** in a proceeding pursuant to Civil Service Law §75.”
* Typically “a library, department or bureau of a municipal corporation or of the state” may decline to provide documents or records pursuant to an attorney’s subpoena, in which case it is necessary to obtain a judicial subpoena for this purpose. In some instances the hearing officer has statutory authority to issue a subpoena as is the case in disciplinary proceedings conducted pursuant to Section 3020-a of the Education Law. [see Section 3020-a 3. c. (iii) (A).]
** In contrast, Section 3020-a 3. c. (iii), in pertinent part, provides that the hearing officer may “(C) hear and decide all applications for bills of particular or requests for production of materials or information, including, but not limited to, any witness statement (or statements), investigatory statement (or statements) or note (notes), exculpatory evidence or any other evidence, including district or student records, relevant and material to the employee's defense.”
The arbitrator should determine if the issue raised in a demand for arbitration is subject to arbitration under the terms of the bargaining agreement
Matter of Town of Cheektowaga v Cheektowaga Police Club, Inc., 59 AD3d 993
The Cheektowaga Police Club, representing police officers below the rank of lieutenant, filed a demand for arbitration to challenge Cheektowaga’s decision to promote one officer to the rank of lieutenant instead of another officer, based on the other officer's residence outside the Town of Cheektowaga.
Conceding the propriety of arbitrating such a dispute, the only issue before the Appellate Division was whether Police Club’s claim falls within the scope of the parties' collective bargaining agreement (CBA).
The court conclude that the arbitrator should determine such an issue, i.e. whether or not the question it is arbitrable with in the contract arbitration procedure set out in the agreement.
Quoting from Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Appellate Division said, "Where, as here, there is a broad arbitration clause and a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties' [CBA], the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them' "
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2009, All rights reserved. http://lawprofessors.typepad.com/adminlaw/
Usually the burden of proof in administrative matters rests on the person challenging the government action. The whole concept of judicial review is on shaky enough ground without the courts getting in the face of the other branches. However, when the legislature creates administrative rights it can shift that burden to the government.
Freedom of information statutes often direct the government to justify an exception to public access. Steven M. Silverberg (Silverberg Zalantis LLP, Tarrytown, NY) discusses a recent case on his firm's New York Zoning and Municipal Law Blog, "Court of Appeals Upholds Release of Documents Under FOIL Despite Claim of Exemption":
The New York Court of Appeals upheld the decision of the Appellate Division requiring release of documents by the Empire State Development Corporation (ESDC), despite a claim by ESDC that the documents are exempt from disclosure under the Freedom of Information Law (FOIL). In a rebuke to procedures followed by ESDC, in the Matter of West Harlem Business Group v. Empire State Development Corporation [2009 NY Slip Op 09268, Dec. 15, 2009], the court found that the ESDC had failed to follow the statutory requirements in responding to the FOIL requests of a group that was seeking information about the proposed condemnation of property in West Harlem.
Initially, ESDC refused to release the documents requested. On administrative appeal the ESDC merely repeated the general denial without particularizing the basis for the denial. Once the action was commenced ESDC claimed various exemptions for different categories of documents but, the court found, again failed to specify which documents fell into each category of exemption. Therefore, the Supreme Court ordered an in camera review of the documents, labeled the documents according to its analysis of the documents and ultimately ordered their release.
The Appellate Division affirmed the lower court ruling. On appeal to the Court of Appeals, the ESDC argued, among other things, that the Supreme Court had placed documents in the wrong categories. The court held:
"In response to Supreme Court's order to produce the documents for inspection, ESDC failed to submit the documentation in any semblance of order, but rather proffered the documents with the blanket caveat that they were either nonresponsive to the FOIL request, constituted intra- or inter-agency material, or had already been disclosed. None of the affidavits submitted by ESDC employees sufficiently identified the particular exemption to which the submitted records were subject, leaving that task to Supreme Court. ESDC cannot now be heard to complain that Supreme Court improperly labeled the documents in the manner it did, as it is not the function of Supreme Court to apply the exemptions for the agency. Since ESDC failed to meet its burden of proof relative to the exemptions, Supreme Court properly ordered disclosure of the documents."
Edward M. McClure
Dismissed employee precluded from litigating her termination because of her failure to exhaust her administrative remedies
Matter of Yan Ping Xu v New York City Dept. of Health, 22 Misc 3d 1116(A)
[See, also, Yan Ping Xu v City of New York, 2009 NY Slip Op 32343(U) (not selected for publication in the Official Reports)]
Yan Ping Xu, a New York City Research Scientist Level I, a position in the non-competitive class, was terminated from her position. She filed a petition pursuant to Article 78 of the Civil Practice Law and Rules seeking an order directing her former employer, the New York City Department of Health, rescind an unsatisfactory performance rating and reinstate to her former position with back pay and money damages and costs.
Yan contended that the Department acted in an arbitrary and capricious manner, in violation of lawful procedure, and in abuse of its discretion. She also contended that she received a copy of her "unsatisfactory" evaluation the day after she was terminated and that she was not provided with the pre-termination due process hearing to which, as a permanent employee, she was entitled.
Significantly, Yan’s appointment status is unclear.
Although Yan alleged that she was a permanent employee with tenure, the evaluation form presented to the court indicated that Yan was a full-time, provisional employee.*
In any event, Justice Paul G. Feinman, apparently accepted her representation that she was a permanent employee for the purpose of adjudicating her complaint.
Justice Feinman concluded that for the purposes of resolving this lawsuit, whether Yan, at the time of her dismissal, a permanent employee serving a probationary period or, in the alternative, having satisfactorily completed her probationary period, a permanent employee with tenure, was irrelevant.
Justice Feinman, for the purpose of deciding the issues raised by Yan, noted that “Article 78 proceeding against a public body may be commenced only when a matter has been finally determined” and an agency determination is deemed final "when the petitioner is aggrieved by the determination."
As a general rule a probationary employees may be terminated at any time,** without a hearing, provided that the dismissal was not for a constitutionally impermissible purpose or in violation of statutory or decisional law. In contrast a tenured employee is typically entitled to due process in the form of a pre-termination hearing.
In this instance it did not matter as Justice Feinman ruled that regardless of whether Yan was a probationary or a tenured employee,*** she failed to follow the proper administrative procedure relevant to her status in challenging her termination. In other words, the court concluded that Yan failed to exhaust the administrative remedies applicable to a probationary employee or a tenured employee, as the case may be.
As Yan contended that she is a tenured employee, Justice Feinman decided evaluate the legal issues involved on that basis.
Justice Feinman indicated that assuming, without deciding, Yan was, in fact, a tenured employee, she was entitled to file a disciplinary grievance challenging her termination in accordance with the terms of a collective bargaining agreement or demand notice and hearing in accordance with Section 75 of the Civil Service Law, as the case may be.
Here, however, Yan did not seek a hearing before an arbitrator or a Section 75 disciplinary hearing but filed a lawsuit instead. This, said the court, was “premature” as she had not exhausted her administrative remedy.
As to Yan challenging her performance rating, the court noted that pursuant to “Rule 7.5.5 (a) and (b) of the Personnel Rules and Regulations, a permanent sub-managerial employee is to appeal her performance evaluation to the appeals board set up by each agency, and then appeal if necessary the determination of the appeals board to the head of the agency.” This, said the court, Yan did not do, again failing to exhaust her administrative remedy.
* A provisional employee may be removed from his or her position without notice or hearing for any reason, other than an unlawful or unconstitutional reason, or for no reason at all.
** Typically State and municipal civil service commission personnel rules, and case law, provide that employees in the competitive class and the non-competitive class serving probationary periods have due process rights only if they have not yet completed the minimum period of probation set for their appointment.
For example, 4 NYCRR 4.5(b)(5)(ii), in relevant part, provides that “If the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of service.”
In contrast, a probationary employee who has completed the minimum period of his or her probationary period may be terminated at any time prior to the end of his or her maximum period of probation without notice and hearing [see Gray v Bronx Developmental Center, 65 NY2d 904].
In order to dismiss a probationary employee before he or she has completed his or her minimum period of probation, the courts have held that the employer must serve the individual with disciplinary charges; find the individual guilty of such charges and imposes the penalty of dismissal as appropriate under the circumstances on the theory that an individual is entitled to a minimum period during which he or she can attempt to demonstrate the ability to satisfactorily perform the duties of the position.
*** A probationary employee holds a permanent appointment, or in some cases a contingent permanent appointment, but does not acquire tenure in the position until he or she satisfactorily completes the required probationary period.
December 16, 2009
Adapted from New York State Department of Civil Service's Advisory Memorandum #09-04
Section 5.9 of 4 NYCRR (Rules for the Classified Service), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service,* requires that appointing authorities provide at least 30 days notice of a proposed termination to employees facing termination pursuant to §71 of the Civil Service Law.**
Many local civil service commissions and personnel officers have adopted similar rules that apply to public employees subject to their respective jurisdictions.
The New York State Department of Civil Service has issued an advisory memorandum that supplements its Policy Bulletin 93-02, §2200, Separations and Leaves, and includes a new "Sample Notice Of Pending Termination" [see below].
The advisory indicates that "4 NYCRR 5.9(c) requires that termination from service shall not be effective until 30 days from service upon the employee of a notice of impending termination containing a proposed effective date for termination. This section does not require a new notice after a short-lived return to work as long as the employee is initially notified how the effective termination date is determined if the employee is again absent and exhausts all leave within 30 days of restoration to service."
If restored to duty, the employee is to be informed of any remaining worker’s compensation leave and if he or she returns to workers’ compensation leave for the same occupational injury or disease within 30 days of his or her restoration to duty, he or she may be immediately terminated without further notice when his or her cumulative year of leave has been exhausted.
Sample Notice of Pending Termination
Pursuant to §71 of the New York State Civil Service Law and §5.9 of the Rules for the Classified Service, your workers’ compensation leave will end, and your employment will terminate on [DATE] due to ___[REASON: E.G. FINDING OF PERMANENT DISABILITY/COMPLETION OF ONE CUMULATIVE YEAR OF LEAVE/ETC.]___.*
You have the right to apply to this office prior to that date for restoration to duty if you are medically fit to perform the duties of your position. If you apply, you may be required to submit to a medical examination to determine your fitness. If the examining physician finds that you are not fit, you will have the right to a hearing to contest that finding, pursuant to Subdivision (d) of §5.9 of the Rules for the Classified Service. If you are found fit for duty by this agency, your leave will be terminated and you will be scheduled to return to work. If restored to duty, you will be informed of any remaining worker’s compensation leave and if you return to workers’ compensation leave for the same occupational injury or disease WITHIN 30 DAYS OF RESTORATION, you may be immediately terminated without further notice when your cumulative year of leave has been exhausted.
As required by the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (HRL) it is the policy of this agency to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee who has a disability. If you are an individual with a disability as defined by the ADA or HRL you may be entitled to an accommodation to enable you to perform the essential duties of your position. If you believe you would be able to perform the duties of your position with a reasonable accommodation, please contact this office for an application for requesting such an accommodation or for further information about the ADA or HRL.
You may wish to contact the Employees’ Retirement System to determine your eligibility for various retirement benefits, including accidental disability retirement. You should do so as soon as possible in order to avoid possible ineligibility due to lateness. You may contact the Retirement System at 1-866-805-0990 or 518-474-7736 (in the Albany area), or by writing to: The New York State Employees’ Retirement System, 110 State Street, Albany, NY 12236.
If you have questions regarding this letter, please contact this office at:
Very truly yours,
* Many local civil service commissions have adopted a similar rule.
** §71 of the Civil Service Law provides, in pertinent part, that “Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law, he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position” [emphasis supplied].
Employee’s lawsuit against the employer dismissed because the employee did not show a “special relationship”
Rollins v New York City Bd. of Educ., 2009 NY Slip Op 09292, decided on December 15, 2009, Appellate Division, First Department
Maria Rollins, a school safety officer, sued the New York City Board of Education alleging that it was negligent when it failed to protect her from the injury she suffered that was caused by a student.
Although Supreme Court denied Education’s motion for summary judgment, the Appellate unanimously reversed the lower court “on the law.”
The Appellate Division said that Rollins failed to show a “special relationship” essential to her going forward with her claim. In the words of the court, “she raised neither that legal theory nor the factual predicate — an alleged oral promise and policy with the special education dean — in her notice of claim or her complaint.” Accordingly, the court ruled that Rollins could neither assert that theory nor the facts underlying it for the first time in opposition to the motion for summary judgment.
In order to show such a special relationship and thus come within this exception, the petitioner must prove the existence of all of the following four conditions:
1. The governmental entity, through promises or acts, assumed an affirmative duty to act on behalf of the injured party.
2. Knowledge on the part of the governmental entity that inaction could result in harm to the individual.
3. Direct contact between the governmental entity's agents and the injured party.
4. The injured party justifiably relied on the governmental entity's affirmative undertaking.
The Appellate Division also commented that Rollin’s “affidavit in opposition [to Education's motion for summary judgment] was fundamentally and irreconcilably inconsistent with her deposition testimony.”
Comptroller to resolve conflicting medical testimony in cases involving claims for disability retirement benefits
Matter of Ragno v DiNapoli, 2009 NY Slip Op 09141, Decided on December 10, 2009, Appellate Division, Third Department
Domenico G. Ragno, a police officer, sustained an injury to his left wrist while teaching a defensive tactics training class. He applied for performance of duty disability retirement benefits but his application was denied based partly upon medical testimony indicating that his injury was easily treatable through a routine surgical procedure.
Ragno underwent the recommended surgery but his condition “did not improve” and he again sought performance of duty disability retirement benefits. His application was rejected based on a hearing officer’s determination the Ragno “was not permanently incapacitated from performing the duties of a police officer.”
The Comptroller adopted the hearing officer’s findings and Ragno appealed. The Appellate Division affirmed the Comptroller’s determination, noting that Ragno had the burden of proving "that he was permanently incapacitated from performing his duties as a police officer."
Although Ragno’s personal physician “opined that [Ragno] is permanently partially disabled” and suffers from wrist pain that is "probably not correctable," the Comptroller’s medical expert testified that Ragno “was not permanently incapacitated from performing the functions of a police officer.”
Noting that it is well settled that “[The Comptroller] possesses the authority to resolve conflicts in the medical evidence and to credit one expert's opinion over that of another, so long as the credited expert articulates a rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records,” the court concluded that the Comptroller’s expert’s opinion met the required standard and ruled that “[the Comptroller’s] determination [was] supported by substantial evidence” and dismissed Ragno’s appeal.
Reliance on the “presumption of compensability” set out in Workers' Compensation Law §21(1) may not be sufficient to support a claim in certain cases
Matter of Bond v Suffolk Transp. Serv., 2009 NY Slip Op 09140, decided on December 10, 2009, Appellate Division, Third Department
Catherine Ann Bond, a school bus driver, was injured when she slipped and fell exiting a bus outside of her home. The Workers' Compensation Board ruled that Bond did not sustain an accidental injury in the course of her employment and denied her claim for workers' compensation benefits.
According to the Appellate Division’s decision sustaining the Board’s determination, Bond had a split work shift consisting of morning and afternoon bus runs, with several hours off duty in between. During what Bond characterized as her "break" period, she was permitted to drive the bus to her home, where her fall occurred.
The court said the in order for an accident to be compensable within the meaning of the Workers’ Compensation Law, it must have arisen out of and in the course of employment.
Although Bond had a split work shift, there was no evidence was produced to show that the employer retained any control or authority over Bond during the period between her bus runs nor was there any evidence produced that her use of the bus had any relationship to her employment or benefit to her employer.
Although Bond sought to rely upon the presumption of compensability contained in Workers' Compensation Law §21(1) to establish such a relationship, that statute did not wholly relieve her of the burden of demonstrating that the accident occurred in the course of, and arose out of, her employment. Accordingly, said the Appellate Division, the Workers’ Compensation Board's conclusion that her injury did not arise in the course of her employment is supported by substantial evidence.
The absence of language in the collective bargaining agreement providing for the claimed benefit bars the arbitration of the alleged grievance
Matter of Union-Endicott Cent. School Dist. v Endicott Teachers' Assn., 59 AD3d 799
Joanne Peters, a teacher employed by the Union-Endicott Central School District was a member of the collective bargaining unit represented by the Endicott Teachers Association.
In late 2006, the school district initiated an investigation of allegations that Peters was stealing school property. In March 2007, Peters wrote to the Board of “indicating an intent to retire, contingent on receiving certain health and dental benefits” pursuant to the Collective Bargaining Agreement [CBA].
A few weeks later Peters was arrested and charged with grand larceny based on the same allegations then being investigated by school district.
Peters was suspended and subsequently the district filed administrative disciplinary charges against her pursuant to Education Law § 3020-a. In view of these developments, the district decided to delay the processing of Peters' retirement and request for retiree benefits pending a resolution of the charges against her.
The Association filed a grievance on behalf of Peters and demanded arbitration of district’s refusal to process her retirement and provide the bargained-for benefits. In response to this demand for arbitration, the district filed a petition in Supreme Court for an order that would “permanently staying arbitration.”
Supreme Court granted the district’s application and the Association appealed.
The Appellate Division sustained the lower court’s ruling, holding that “the arbitration at issue was not authorized by the terms of the CBA.”
Noting that the CBA provided for the arbitration of an "alleged violation of the expressed written words in th[e] agreement," the Appellate Division found that “[t]here is no provision in the CBA setting forth the procedure pertaining to the initiation of retiree benefits … [n]or does the CBA provide instruction as to when an employee must be considered to be retired for purposes of receiving benefits thereunder.”
According, the court ruled that in the absence of any provision in the collective bargaining agreement requiring the school district to take action while Peters was under suspension, the district’s decision to delay action regarding her retirement did not violate any expressed right or procedure set out in the CBA and therefore was not arbitrable.
December 15, 2009
Matter of Dunham v Commissioner of Labor, 2009 NY Slip Op 09134, decided on December 10, 2009, Appellate Division, Third Department
The Unemployment Insurance Appeals Board disqualified Diane M. Dunham from receiving unemployment insurance benefits because her employment was terminated by the Regional Off-Track Betting Corporation due to misconduct.
During a routine audit, it was discovered that Dunham’s cash drawer was $20 short because she had sold $20 worth of lottery tickets to an individual upon his promise that he would return promptly with payment. The individual, however, had not yet done so at the time of the audit. Although Dunham immediately retrieved the money from the individual and gave it to the auditor, the incident was determined to have constituted "credit wagering" in violation of the Corporation’s policy.
Dunham applied for unemployment insurance benefits, which were granted by an Administrative Law Judge after ruling that Dunham “did not engage in misconduct and, therefore, was not disqualified from receiving benefits.” When the Unemployment Insurance Appeal Board subsequently reversed the Administrative Law Judge’s ruling and denied Dunham’s claim for unemployment insurance benefits, she appealed. The Appellate Division reversed the Board’s determination.
The Appellate Division said that while “conduct that is detrimental to an employer's interest” constitutes misconduct and will disqualify an employee from eligibility for unemployment insurance benefits, although an employee may have been dismissed from his or her position for valid reasons, “his or her behavior may fall short of misconduct and, therefore, he or she may still be entitled to receive benefits.”
Dunham admitted that she gave the lottery tickets to the individual without immediately receiving payment in return. Undisputed testimony, however, established that this was a customary practice with respect this particular individual and “had occurred several times per week for years” whereby Dunham and other Corporation agents had provided the individual with lottery tickets without receiving immediate payment “with the full knowledge of both the manager and assistant manager, neither of whom ever indicated that it was against company policy.”
Further, said the court, no evidence was submitted that this custom was detrimental to the Corporation’s interests.
Accordingly, the Appellate Division ruled that in under these circumstances there was no substantial evidence to support the determination that Dunham’s behavior constituted misconduct warranting denial of benefits.
Elements essential to a grand jury making a finding concerning a public official’s performance of his or her duties
Matter of Second Report of Seneca County Special Grand Jury of Jan. 2007, 59 AD3d 1079
It is a rather rare occurrence for a grand jury to be asked to consider alleged misconduct by of public officer. In Matter of the Second Report the Appellate Division considered the basis for a grand jury making a finding concerning a public official’s performance of his or her duties.
The issue arose when the “first named public official” in a report by a Grand Jury, a public official of Seneca County, appealed a County Court’s decision directing that a grand jury report be filed as a public record.
The Appellate Division sustained the official’s appeal, indicating that "Without a [clear and adequate charge] as to . . . [the official's] duties, it was not only impossible for the Grand Jury to determine that [the official] was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allowed the Grand Jury to simply substitute its judgment for that of [the official]."
The court said that it was "incumbent upon the prosecutor to instruct the Grand Jury regarding the duties and responsibilities of the public servant who is the target of the probe," citing Morgenthau v Cuttita, 233 AD2d 111, lv denied 89 NY2d 1042.
In this instance the court agreed with the official’s complaint that the special prosecutor's instructions concerning the official's duties were vague and inadequate.
Where provided for by statute, the statute controls the power to remove an individual from the position
Matter of Wood v County of Cortland, 23 Misc 3d 913
The general rule is that the power to appoint implies the power to remove. The Wood case demonstrates an exception to this rule: The power to appoint does not support a claim of the power to remove an incumbent when removal from the position in question is provided for by statute.
William J. Wood, Chair of the County Democratic Committee, sued Cortland County and Thomas Brown contending that he was wrongfully removed as Democratic Election Commissioner effective December 10, 2008 and that Thomas Brown was not properly appointed to that office for a term commencing January 1, 2009 in his stead.
The authority relied upon by the County Legislature for Wood from his position: The County's Code of Ethics (Local Law 2 of 2008) prohibits an individual from concurrently holding the offices of Election Commissioner and "Chairman of any Political Party."
In a memorandum dated December 10, 2008, the Chair of the County Legislature, John Daniels, declared the office of Election Commissioner vacant for the term ending December 31, 2008 because Wood then admittedly simultaneously held the offices of Election Commissioner and Chair of the County Democratic Committee.
As framed by Supreme Court Justice Phillip R. Rumsey, the issue to be resolved is whether the County Legislature may declare a vacancy in the office of Election Commissioner upon the admission by the incumbent of dual office-holding in violation of a local ethics law without prosecution or conviction under local or State law effectively removing him or her from office.
The court commenced its analysis by noted that “State law that is applicable to this office supersedes any conflicting local legislation.”
Of relevance in this action was the fact that “In Public Officers Law §30, the State Legislature has specified the grounds by which a vacancy is created in a public office, including the office of election commissioner, and the enumerated grounds do not include violations of a local ethics law in respect to dual office-holding.” In addition, said Justice Rumsey, the State Legislature has provided that an election commissioner may be removed "by the governor for cause in the same manner as a sheriff," citing Election Law §3-200.
Justice Rumsey concluded that “As applied to the office of election commissioner,” the Cortland County Code provision relied upon for removing Wood from his position as an Election Commissioner was inconsistent with, and is superseded by, State statutes.
Accordingly, the court decided that the County Legislature lacked the authority to declare a vacancy as a result of an apparent violation of the prohibition against dual office-holding under its local ethics law absent prosecution or conviction as required by State Law.
However, Wood’s term otherwise expired on December 31, 2008. Although he could not be reinstated to that term of office as it had expired, the court ruled that he was entitled to compensation for the remainder of his term ending December 31, 2008.
NYPPL Comment: An element not discussed in this opinion is the standard set Ryan v Green, 58 NY 295, with respect to the issue of one person holding two public offices simultaneously.
Except where prohibited by law, such dual-office holding is permitted unless they are "incompatible." What constitutes incompatibility for the purposes of dual office holding?
Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices. For an example of dual-office holding barred by statute see Civil Service Law §27 which Section prohibits holding certain public employment and serving as an officer of a political part simultaneously.
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