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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+.
January 29, 2010
Source: WORK MATTERS: a law blog by Michael P. Maslanka, Esq.
Michael P. Maslanka, managing partner of Ford & Harrison in Dallas, Texas, reports that the FMLA does not cover faith-healing trips that include a vacation aspect.
Why not? Mr. Maslanka explains that the employee’s relative in question was not seeking medical treatment but a miracle and FMLA leave benefits are available to an employee only if the relative for whom the employee is caring is receiving treatment from a health-care provider as defined in the regulations.
Mr. Maslanka cites a January 4, 2010 decision by the U.S. District Court for the District of Massachusetts, Tayag v. Lahey Clinic Hospital Inc., in which the court notes that “even if the FMLA protected caring for a sick [relative] on a faith-healing trip, that coverage was lost because ‘the FMLA does not permit employees to take time off to take a vacation with a seriously ill [relative], even if caring for the [relative] is an ‘incidental consequence’ of taking [the relative] on vacation.’"
The item is posted on the Internet at: http://texaslawyer.typepad.com/work_matters/2010/01/the-fmla-does-not-cover-faithhealing-trips-that-include-a-vacation-aspect.html
Black v New York City Dept. of Educ., 62 AD3d 468
The Chancellor of the New York City Department of Education gave probationary teacher Thomas Black an unsatisfactory rating, terminated his “physical education” license and place his name on the Department's Ineligible/Inquiry list.*
Black challenged the Chancellor’s actions and Supreme Court Justice Herman Cahn granted Black’s Article 78 petition. Justice Cahn directed the Department of Education to reinstate Black to his former position at the appropriate rate of pay, including all appropriate benefits, with back salary. The court’s order also directed the Department to remove Black’s from the Department's Ineligible/Inquiry list.
The Department appealed and the Appellate Division “unanimously reversed, on the law, without costs,” the Supreme Court's ruling and dismissed Black’s petition.
The Appellate Division said that Black failed to establish that the termination of his probationary employment under his physical education license, which was based on his alleged inappropriate sexual relationship with a New York City public high school student, "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith." Accordingly, the court ruled that the Chancellor's determinations regarding Black’s employment by the Department of Education were neither arbitrary nor capricious.
* The placement of an individual’s name on the Department of Education’s Ineligible/Inquiry list would essentially render him or her ineligible for future employment with the New York City Department of Education, Segal v NYC Department of Education, 459 F3d 207
A number disciplinary actions taken against employees were initiated by, or relied upon, the use of global positioning equipment installed in the employer’s vehicle or in the employer-issued cell phone.
In addition, PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining.
In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, the Administrative Law Judge dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology.
The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis. [See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08]
The decision in the Weaver case may have an impact on the use of GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.
The Weaver decision indicates that “In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.* The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.”
Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.
Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court ruled that such an action, in this instance, was barred by New York State’s Constitution.
The Court noted that Article 1, §12 of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides: "The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof."
The Court of Appeals ruled that:
1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.
2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.
The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that “no search occurred” untenable.
The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”
The Court of Appeals then said that Scott’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.
This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.
* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.
Matter of New York State Off. of Children & Family Servs. v Lanterman, 62 AD3d 1109
The most significant issue in the Lanterman case concerned the result if the individual does not hold the license, certification, permit or other credential required to perform the duties of the position for which the credential is required. Typically courts view the loss of the required credential, be it to practice law or medicine, teach, drive a motor vehicle or pilot an aircraft, as barring the individual from providing such service or performing such tasks by operation of law. Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position.*
Lauren Lanterman was employed by the Office of Children and Family Services (OCFS) as a Teacher II. The State Education Department requires that teachers who provide educational services and programs to children in OCFS facilities have appropriate professional certification.
When Lanterman lost her certification to teach, OCFS advised her that if she failed to obtain the required certification by November 30, 2006, she would be terminated from her position. Lanterman did not obtain her teaching license by the deadline and she was terminated.
The Public Employees Federation [PEF], the collective bargaining representative for Lanterman’s collective bargaining unit, claimed that Lanterman was entitled to arbitrate the applicability of the disciplinary process under the collective bargaining agreement [CBA] to her termination resulting from her failure to maintain her teaching certification and ultimately obtained an order from a Supreme Court Judge compelling that the issue be submitted to arbitration.
The Appellate Division vacated the lower court’s order, rejecting PEF claim that its CBA with the State provides for the arbitration of any issue dealing with teacher certification, including what must occur if a teacher is not properly certified. Further, said the court, “even if an agreement to arbitrate such a dispute did exist, it would constitute a substantial violation of public policy and, as such, would be unenforceable.”
The court also found that although the CBA provides for the arbitration of issues dealing with disciplinary action taken against a teacher, “whether a teacher has the statutorily required qualifications for the position is not a disciplinary matter subject to that provision.” Rather, said the court, certification is a statutory prerequisite that an individual is required to have to qualify for a teaching position in the public school system; it has nothing to do with discipline and, as such, is not an issue that is subject to arbitration under this provision of the CBA.”
First and foremost, said the court, allowing Lanterman to teach without proper certification would serve to completely ignore state law and applicable SED regulations which clearly and unequivocally require that all instructors at OCFS facilities be properly certified.
The Appellate Division did not viewed Lanterman's failure to obtain certification and the decision to terminate her because she did not possess the qualifications required for her to be eligible for a teaching position as constituting a matter "concerning the interpretation, application or claimed violation" of the CBA. Rather, said the court, “certification is a legal condition precedent that Lanterman was obligated to satisfy to be eligible to retain her position.” Thus “her failure to obtain certification within the time allotted by state law served to automatically disqualify her from holding that position, and the decision to terminate her was based upon her failure to meet all of the eligibility requirements as mandated by state law and SED regulations.”
* In contrast, see Matter of Martin ex rel Lekkas, 86 AD2d 712. In Lakkas the court held that an individual’s failure to possess a valid license is not fatal to the employee’s continuation in service if he or she is not performing duties for which the license is required.
An attorney’s advice sent by one layperson to another layperson not an attorney-client communication subject to a FOIL exception
Matter of Siani v Clark, 23 Misc 3d 1123(A)
Dominick J. Siani submitted a FOIL request to the State University of New York (SUNY) Records Access Officer to obtain "all e-mails, memoranda and correspondence . . . by the SUNY FOIL Appeals Officer in performing her official duties . . . for the period from May 1, 2008 to the date in which the records are provided."
The requested documents and records only related to FOIL appeals submitted by Siani. Although Siani extended the date for a response to the FOIL request, when no response was received, he initiated an appeal.*
Siani’s appeal was denied by letter and recited the inter/intra agency and attorney-client privilege exceptions permitted by FOIL as the basis for SUNY’s refusal to provide the documents and records he requested.
Justice Zwack, noting that “It is well established that FOIL imposes a duty on the government to make its records available to the public and that there is a presumption that all records are subject to disclosure, unless they fall within a specific exemption from disclosure,” said that FOIL permits exemptions for attorney-client privileged documents and for documents that fall into certain categories of intra/inter-agency materials.**
Public Officers Law §87 provides that an agency may deny records or portions of records if they fall into specific categories, including:
(a) those that "are specifically exempted from disclosure by state or federal statute; and
(b) those that "are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government."
Regarding the inter/intra-agency exemption claimed by SUNY, Justice Zwack said that case law has clarified that "factual data" is to be defined as "objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making."Additionally, noted the court, just because a document may constitute a non-final determination does not mean that it may not be subject to disclosure as factual data.
As to SUNY’s claim that the attorney-client privilege exemption applied to certain documents, the court said that there are certain requirements for the privilege to apply that have been clarified by case law.
When there is a dispute as to whether a document falls into an exempt category, in camera [in private] inspection by the Court is an option. In this instance Justice Zwack considered the documents submitted to him for in camera review and found that some were not protected by the attorney-client privilege “because they contain emails that are not between an attorney and client” although attorneys were “copied on the emails.” Justice Zwack decided that such documents were not protected by FOIL's attorney-client communication exception.
Specifically, said the court, “An attorney's advice being relayed by a non-attorney to another non-attorney does not meet the requirement for privileged attorney-client communication.”
As to Siani’s request for reimbursement of litigation costs totaling $394, as Siani acted pro se [represented himself] in this action, he could not be awarded attorney's fees.
However, Justice Zwack found that Siani had “substantially prevailed in this proceeding” and that SUNY’s delay in providing the documents available under FOIL was both beyond the statutory limits and beyond the extra time voluntarily given it by Siani. Considering these elements, the Court awarded Siani costs, citing Public Officers Law §89(4) as authority for granting the award.
* Failure to respond to a FOIL request is deemed to constitute a constructive denial of the request.
** The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL.
January 28, 2010
Matter of Turner v Horn, 2010 NY Slip Op 00565, Decided on January 26, 2010, Appellate Division, First Department
Lakeisha Turner, a probationary employee serving with the New York City Department of Correction, was terminated during her probationary period without a hearing or a statement of reasons.
The Appellate Division said that in the absence of evidence that Turner's termination "was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law," Turner had no legal right to a pretermination hearing.
The court noted that Turner had been terminated following an Department investigation that concluded, based “on substantial evidence in the record, Turner had failed to comply with departmental rules and regulations pertaining to ‘undue familiarity’ with current or former inmates.”
Although the Appellate Division said that Turner had submitted evidence challenging the investigators' conclusion, it found that had not submitted any evidence raising a substantial issue as to Correction's bad faith in investigating the alleged violation or in deciding to terminate her employment that would require a hearing.
NYPPL Comments: In this case the Appellate Division concluded that the evidence in this record supported Turner’s dismissal as the Department had shown that she was discharged for good reason.
Although it is frequently said that a probationer permanently appointed to a position in the classified service otherwise protected by Civil Service Law Section 75 or a similar statute or negotiated grievance disciplinary procedure may be terminated from his or her employment at any time after completing the minimum probationary period and before the end of the maximum period of probation without any reason being required to be given for the discharge, if the termination is challenged the employer will probably have to disclose the underlying reason or reasons for the firing if for no other reason than to demonstrate that the dismissal was not made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law. Further, these judgments by the employer will have to satisfy the court as was the case here.
If, on the other hand, the employer wishes to terminate the probationer before he or she has completed the minimum probationary period required for the position, case law indicates that it may do so only after bringing disciplinary action against the employee and holding a disciplinary hearing or proceeding with a Taylor Law disciplinary arbitration.
Placement on a “special military list” for appointment to a position in the competitive class following military service
Matter of Woods v New York City Dept. of Citywide Admin. Services, 24 Misc 3d 849
The Woods case address a situation that may be faced by public employers with increasing frequency during the next several years as individuals are released from military service: the rights of such persons with respect to employment by the State or a political subdivision of the State when their eligibility and availability for appointment was interrupted by military service, including having their name placed on a “special military list” for certification for appointment if the individual is able to satisfy all of the required terms and conditions for appointment.
Robert Woods took an open competitive civil service examination to become a firefighter with the New York City Fire Department. He passed the written test and his name was placed on the eligible list. Wood then enlisted in the United States Army. While Woods was serving in Iraq, the Department notified him that it intended to appoint him, but that he was required to submit to medical and psychological testing and have a background investigation.
Woods, however, was not due to be discharged from his military service until September 2008.
The Department was advised of the situation and indicated that Woods could complete these remaining parts of his examination after his discharge. Woods actually was “qualified and certified” and but for his being in the military, he would have been selected and appointed to the position.
The key factor in the court’s ruling in this case: by the time Woods was honorably discharged from military service the relevant eligible list had expired.
Within 90 days of his release from duty Woods contacted the Department to take his medical and psychological examinations. The Department told Woods that he had passed all parts of the examination and that he would join the next training class scheduled for January 5, 2009.
Subsequently the Department rescinded Woods' participation in “the next training class.” It told Wood that “notwithstanding its decision to re-activate his examination list number, Military Law §243, which safeguards civil service opportunities for persons serving in the military, did not apply to him because he did not complete his requisite military service until after May 5, 2008, the termination date [for certification of the eligible list] for all persons who took Exam No. 2043.”
Woods filed a petition pursuant to CPLR Article 78 seeking a court order overturning the Department’s action.
In adjudicating Woods petition, Justice Stallman said:
“This proceeding requires interpretation of two sections of the Military Law:“Military Law §243(7), originally enacted in 1953, provides that ‘[a]ny person whose name is on any eligible list shall, while in military duty, retain his rights and status on such list. If the name of any such person is reached for certification during his military duty, it shall be placed on a special eligibility list in the order of his original standing, provided he makes a request therefor following termination of his military duty and during the period of his eligibility on such list’” and
“Military Law § 243 (7-b) which provides that ‘[a]ny person who has passed one or more of several parts of an examination for a position for which competitive examinations are required, and who has been prevented from taking or completing the remaining parts of the examination for such position by reason of his service in military duty shall be afforded an opportunity to take a comparable examination as to such remaining part or parts, provided he makes request therefor during the period of ninety days following termination of his military duty.’”
The Department argued that in order for Military Law §243(7) to apply, “the applicant must be completely qualified on the certification date and would be certified but for his military service. Under these circumstances, the applicant would be placed on the ‘special eligibility list’ for appointment after completing his military service.”
According to the Department, Military Law §243(7) applies to any person who seeks to be placed on a “special eligibility list” who makes a timely request “following the termination of his military service, and such request must be made during the period of his eligibility on the regular eligible list."
Woods, on the other hand, contended that he was entitled to be placed on a special military list “pursuant to Military Law §243(7-b)” and his name was to “be certified before certification shall be made from a subsequent eligible list."
The court decided that Military Law §243(7-b) only applies to candidates “who were otherwise qualified during the period for potential placement for persons on their regular eligibility list (determined by their examination date), but for their inability to take a portion of the exam because of military duty” to be placed on a special military list. The court concluded that Woods “was not so qualified during the period of the regular eligibility list for Exam No. 2043.”
Justice Stallman said that subdivision 7-b “refers only to the examination requirements for appointment.” If the candidate, on the date of certification, meets all the necessary requirements except for completing part of the requisite examinations, which he could have completed but for his military obligations, he or she is afforded an opportunity to take those remaining exams, provided he or she so requests within 90 days of his or her discharge from military service.
Although Woods was timely with respect to satisfying the medical and psychological examinations, Justice Stallman ruled that insofar as Woods was concerned, “unfortunately, the period of the regular eligibility list had already expired.” Justice Stallman held that based on his reading to the relevant provisions of the Military law, “it cannot be said that [the Fire Department’s] determination was arbitrary, capricious, contrary to law, or arrived at in bad faith,” and dismissed Wood’s petition.
NYPPL Comments: New York State Department of Civil Service Advisory Memo #04-03 applies to the State as an employer. With respect to the placement of the name of an eligible on a Special Military List, the Advisory Memo addresses two situations: one where the list is still in existence upon the individual's release from active duty and a second, where the eligible list has expired prior to the individual's release from active duty. The Memo explains:
“If a person’s score becomes reachable for certification from an eligible list during military duty, that eligible’s name will be placed on a special military list upon request following separation from military duty, provided the original eligible list is still in existence (Military Law §243.7)" [emphasis supplied]. As such an individual's "special military list" status is for two years, in such cases the individual would be eligible for appointment within that period notwithstanding the expiration of the eligible list during that two-year period.
The Advisory Memo then continues:
"A person who has competed in a comparable examination (Military Law §243.5) or has completed all parts of a prior examination following military duty (Military Law §243.7-b) is entitled to special military list status if his or her score was reached for appointment between the date of entrance into military duty and the date he or she is notified of passing the examination."
In contrast to the individual's release from military service while the eligible list is still in existence, here the Advisory Memo presumably is addressing situations in which the relevant eligible list has expired.
In a Woods-type [Military Law §243.7-b] situation, it would appear that the individual, not having been eligible for appointment because he or she has not yet successfully completed all parts of the examination, is provided with an opportunity to so qualify and if successful, his or her name is to be placed on a Special Military List for a period of two years. Nothing in the Advisory Memo appears to suggest that the original eligible list must still be in existence to trigger the ultimately successful candidate's name being placed on a special military list pursuant to Military Law §243.7-b
It would not be uncommon for an eligible list, be it the results of an open competitive examination or a promotion examination, to have expired while the candidate was performing his or her military service -- indeed such a result might be expected in view of the nature of the potential duration of the individual's active military service.
The courts have typically liberally interpreted statutes providing "remedial benefits" such as those set out in Military Law §243.7-b as a reflection of a legislative intent to recognize the sacrifice of an individual's civilian expectations as a result of his or her military service.
An individual’s right to the payment of the value of accrued sick leave credits deemed deferred compensation is not forfeited upon death
Matter of Shaffer, 23 Misc 3d 1125(A)
Stephen Shaffer was a teacher employed by the Elmont Union Free School District. Shaffer’s application for retirement was pending at the time of his death and the retirement system approved the application posthumously.
In addition, Shaffer had accrued 95 days of sick leave credit valued at $20,363.27 at the time of his death.
The School District declined to pay this amount to Shaffer’s estate, contending that the collective bargaining agreement [CBA] between the District and the Elmont Elementary Teachers Association provided that “accrued sick leave be paid into a ‘403 (b)’* account.” As Shaffer had not established a §403(b) account prior to his death, the District, arguing “impossibility,” said that it was unable to effectuate payment of the accrued sick leave because a §403(b) account cannot be created after death.
In effect, the District claimed that under the terms of the COB Shaffer’s failure to establish a §403(b) account prior to his death resulted in the forfeiture of his accrued sick leave credit.
Judge Riordan agreed that a §403(b) account cannot be established posthumously but said that “forfeitures are not favored in law or in equity and the court will avoid a finding of forfeiture in the construction of a contract.”
In this instance, said the court, there is no express language in the CBA that provides for a forfeiture in the event a §403(b) account is not established by the individual and no such provision should be read into the contract. Further, Judge Riordan concluded the creation of a §403(b) account was not a condition to payment for accrued sick leave under the CBA.**
Holding that the value of Shaffer’s accrued sick leave was in the nature of deferred compensation, the court rejected the District’s argument that Shaffer’s failure to establish a §403(b) made it impossible for it to perform under the terms of the COB.
Judge Riordan said that “impossibility will not excuse a condition if the existence of the condition is not a material part of the exchange” and in this instance the creation of a §403(b) account was not a material part of Shaffer’s right to deferred compensation. Thus accepting the Districts argument would result in its being discharged of its obligation to pay Shaffer’s deferred compensation and would result in a forfeiture of vested rights.
Accordingly, Judge Riordan granted Janet Shaffer’s motion as Executrix of the Estate of Stephen Shaffer for summary judgment and the District was directed to pay the estate Stephen Shaffer $20,363.27.
* The “403(b)” referred to is a Tax Deferred Annuity that could be established by Shaffer pursuant to §403(b) of the Internal Revenue Code.
** In addition, Judge Riordan commented that “even if it were determined that the creation of a ‘403 (b)’ account is a condition precedent, the District should not be permitted to withhold payment of the funds.”
Arbitrator to determine if CBA's disciplinary procedure applies in the event an employee is summarily dismissed due to the lack of certification
Matter of New York State Off. of Alcoholism & Substance Abuse Servs. v Ortiz, 62 AD3d 1118
NYPPL recently summarize the decision in Matter of New York State Off. of Children & Family Servs. v Lanterman, 62 AD3d 1109.
Lanterman was terminated from her teaching position with the Office of Children and Family Services after losing the license she was required to possess in order to lawfully perform the duties of the position. The Appellate Division, Third Department, ruled that an employee terminated after losing the license required to perform the duties of the position was not entitled to a pre-termination disciplinary hearing because “whether a teacher has the statutorily required qualifications for the position is not a disciplinary matter subject to that provision.”
Rather, said the court, certification is a statutory prerequisite that an individual is required to have to qualify for a teaching position in the public school system; it has nothing to do with discipline and, as such, is not an issue that is subject to arbitration under this provision of the CBA.”
Further, the Appellate Division did not viewed Lanterman's failure to obtain certification and the decision to terminate her because she did not possess the qualifications required for her to be eligible for a teaching position as constituting a matter "concerning the interpretation, application or claimed violation" of the CBA. Rather, said the court, “certification is a legal condition precedent that Lanterman was obligated to satisfy to be eligible to retain her position.”
The Appellate Division rejected the argument that Lanterman’s collective bargaining representative, the Public Employees Federation [PEF], advanced that Lanterman was entitled to arbitrate the applicability of the disciplinary process under the collective bargaining agreement [CBA] to her termination resulting from her failure to maintain her teaching certification.
In Ortiz, PEF presented the court with essentially the same question.
Victor Ortiz was employed as a counselor by the New York State Office of Alcoholism and Substance Abuse Services [OASAS]. Counselors with OASAS are required to maintain “proper credentialing” in order to provide services to persons suffering from alcohol and substance abuse, chemical dependence or compulsive gambling.
Ortiz was terminated from his position as an Addictions Counselor II five days after the expiration of his certification as a Credentialed Alcoholism and Substance Abuse Counselor [CASAC]. In terminating Ortiz, OASAS admittedly did not comply with the contract disciplinary procedure set forth in the CBA.
The question in this appeal, said the Appellate Division, is whether the CBA entitles Ortiz to arbitrate the applicability of the disciplinary procedures under the CBA to his termination for failure to maintain his certification — a statutory, minimum qualification for his position.
PEF had submitted a contract grievance asserting that Ortiz’s termination was in violation of the CBA. When OASAS, and subsequently the Governor's Office of Employee Relations, took the position that the CBA's grievance process was not applicable to Ortiz's termination because his failure to maintain CASAC status automatically disqualified him, PEF served a notice of intention to arbitrate pursuant to CPLR Section 7503(c).
OASAS commenced a proceeding in Supreme Court seeking to permanently stay arbitration and PEF cross-moved to compel arbitration. Supreme Court granted PEF’s cross motion to compel arbitration. OASAS appealed, only to have the Appellate Division affirm the Supreme Court’s decision.
The Appellate Division said because OASAS does not oppose arbitration on public policy grounds or assert any statutory or constitutional prohibition against such arbitration, the court’s review is limited to “whether the CBA contemplated arbitration as a means of resolving the instant dispute.” In a three to two decision, Appellate Division ruled that it did.
The Appellate Division said that “in determining whether the parties agreed to arbitrate this particular dispute and bearing in mind the broad public policy in favor of arbitrating public sector employment disputes we must only ascertain ‘whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.’”
In Ortiz the Appellate Division concluded that “inasmuch as the dispute here concerns the interpretation, application or a claimed violation [of an article contained in the CBA] — specifically, whether it applies to the termination of an employee for failure to maintain required certification — it unequivocally falls within the broad provisions of [contract grievance article in the CBA].”
The court decided that it was “the province of an arbitrator to determine whether Article 33 [providing for the filing of a disciplinary grievance] was intended to 'modify, supplement, or replace the more traditional forms of protection afforded public employees . . . in Section 75 ... of the Civil Service Law' so as to encompass within the definition of 'discipline' action taken against an employee due to the loss of required certification — thus, triggering the procedures of Article 33."*
Judge Kavanagh, with Judge Cardona concurring, dissented, stating that “While petitioners in this proceeding do not argue that arbitration of the issues is prohibited by public policy concerns, we conclude, for the same reasons as we did in Matter of New York State Off. of Children & Family Serv. (Lanterman) (___ AD3d ___ [decided herewith]), that the parties did not agree, and for that matter could not have agreed, "to arbitrate the particular dispute" of respondent Victor Ortiz's lack of the statutorily required certification,” and would reverse Supreme Court's order and grant a permanent stay of arbitration.
* In contrast to Civil Service Law Section 75 referred to by the Appellate Division, its statutory equivalent, Education Law Section 3020-a, controlled with respect to initiating disciplinary action against Lanterman, who served as a teacher.
Application of Fu-Yun Tang for the removal of Uri Kaufman as a member of the Board of Education of the Lawrence Union Free School District, Decisions of the Commissioner of Education, Decision No. 15,913
Fu-Yun Tang asked the Commissioner of Education to remove Uri Kaufman from the Board of Trustees of the Lawrence Union Free School District. The Commissioner denied the application as untimely.
Tang alleged that Member of the Board Kaufman was guilty of “dereliction of duty” based on statements he allegedly made at a Board meeting. Kaufman argued that the application was untimely.
The Commissioner found that the application was served on Kaufman on November 3, 2007, more than 30 days after the October 2, 2007 board meeting at which Kaufman was alleged to have made such statements. Noting “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown,” applies to a removal application made pursuant to Education Law §306.
Tang said her delay was because “she was ‘unaware ... that [Kaufman] had moved homes since he was served with my prior grievance.’”* Kaufman, however, submitted an affidavit stating that “[a]t all times since December 2002, my family and I have lived at our current address.” Under these circumstances, said the Commissioner, “I find no basis to excuse petitioner’s delay. Accordingly, the claim must be dismissed as untimely.”
The Commissioner then approved Kaufman’s application for a certificate of good faith pursuant to Education Law §3811(1). Such a certification is solely for the purpose of authorizing the board to indemnify Kaufman for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a board member. The Commissioner found it appropriate to issue such certification as there has been no finding that Kaufman acted in bad faith.
* On or about July 11, 2006, Tang commenced an application for the removal of respondent Kaufman and two other trustees.
January 27, 2010
Source: Council of School Superintendents
“A Legal Analysis” addressing the federal “Race to the Top” program was presented by Michele Handzel, Esq., General Counsel of The Council of School Superintendents at the Council's Winter Institute 2010.
Mr. Handzel’s presentation included proposals addressing efforts to streamlining the Education Law Section §3020-a disciplinary procedure.
The objective listed in the presentation with respect to §3020-a reforms: Expedite the 3020-a process to preserve the integrity of the teaching profession. Mr. Handzel noted that the Board of Regents is considering the development of a legislative proposal to provide incentives to teachers and administrators to expedite resolution.
Among the items being considered by the Regents are “financial incentives to expeditiously resolve §3020-a matters” and reducing the State’s financial burden related to paying the expense of the hearing such as the compensation paid hearing officers, stenographers, and panel members by compressing the time involved in processing the disciplinary action and the elimination of the need for a full §3020-a hearing process to excess a teacher who is not properly certified.
Mr. Handzel’s presentation cites a recent New York State School Board Association survey covering 2004 through 2008 in which it received responses from 400 school districts. NYSSBA's report indicated that it took an average of 502 days to conclude a full §3020-a disciplinary hearing. The hearing itself took an average of 176 days and there was an average of 136 days between the last hearing day and the date of a decision.
Mr. Handzel's presentation is posted on the Internet at: http://www.nyscoss.org/pdf/upload/RTTPPresentationwithmgchangesv3.pdf
Claimant’s failure to read the instructions results the imposition of a “forfeiture penalty” by the Unemployment Insurance Appeals Board
Matter of Sferlazza v Commissioner of Labor, 2010 NY Slip Op 00436, Decided on January 21, 2010, Appellate Division, Third Department
Victoria Sferlazza was appointed to serve as an adjunct professor at a Nassau County Community College for the fall 2007 and spring 2008 semesters.
She was assigned to teach six credit hours per week and was paid $1,589.71 per credit hour. At various times Sferlazza also worked as a placement reader.
When she initially filed for unemployment insurance benefits, her benefit rate was set at $405 per week. However, Sferlazza had been told that she could not receive unemployment insurance benefits “for any week in which she earned more than the maximum benefit rate of $405.”
Subsequently the Department of Labor found, among other things, that Sferlazza was ineligible for benefits for certain periods of unemployment because she earned $635.88 per week during the weeks in question. The reason for this: she had earned more than the maximum benefit rate and thus was unable to accumulate effective days in such weeks.
The Department also concluded that Sferlazza had made willful misrepresentations to obtain benefits and imposed a recoverable overpayment of $6,480 as well as a forfeiture penalty of 184 days. Sferlazza appealed.
In her challenge to the Unemployment Insurance Appeals Board’s determination, Sferlazza contended that she was not guilty of “willful misrepresentations to obtain benefits” as although she misstated her earnings during the time periods in question, the false information she had provided "was an innocent mistake attributable to her confusion over, among other things, the manner in which to calculate her weekly salary and inability to obtain clarification from a representative from the call center.”
Notwithstanding this representation, the Appellate Division ruled that Sferlazza’s statements provide substantial evidence supporting the Board's finding that she made willful misrepresentations to obtain benefits.
The court also ruled that the Board's finding was supported by evidence that Sferlazza was given the unemployment insurance handbook explaining that she should not put in a claim for weeks in which she received more than $405 and that she admitted that she had failed to fully read that material.
Under the circumstances, said the court, it found “no reason to disturb the Board's decision.”
Law in effect at the time litigation was initiated applies notwithstanding a subsequent amendment liberalizing such law
Barnum v NYC Transit Authority, 62 AD3d 736
In Williams v N.Y.C. Housing Authority, 2009 NY Slip Op 00440, (1st Dep't January 17, 2009), the court indicated that the federal standard for sexual harassment claims - in the absence of proof of tangible job detriment the complainant must show that he or she was subjected to "severe or pervasive" acts of harassment - does not apply to claims brought under the City Human Rights Law. The current test, said the court, is "whether the plaintiff has proven … that he or she has been treated less well than other employees because of her gender."
This new test reflects the changes enacted by New York City’s Local Law 85, §7, which took effect in 2005, whereby the City’s civil and human rights laws “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.”
In Barnum’s case, however, the Appellate Division said that her complaint was filed in 2004 and consequently her cause of action must be evaluated in accordance with the law in effect as of the date of the commencement of the action. As Local Law 85 did not take effect until 2005, the court ruled that it was required to apply the standards for recovery under Title VII of the federal Civil Rights Act of 1964 (42 USC § 2000-e et seq.) to her claims asserted pursuant to both the Executive Law and the New York City Human Rights Law.
Flora Barnum complained that she was subjected to harassment by her supervisor. Under Executive Law §296, "[a] hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Further, "To recover against an employer for the discriminatory acts of its employee, the plaintiff must demonstrate that the employer became a party to such conduct by encouraging, condoning, or approving it."
In its motion to dismiss Barnum's lawsuit, the New York City Transit Authority established that it did not approve or condone the behavior of its supervisor. Further, said the court, “viewing the totality of the evidence in the light most favorable to [Barnum], the offensive conduct was not sufficiently severe or pervasive to alter the conditions of her employment." Accordingly, the Authority made a prima facie showing of entitlement to judgment as a matter of law dismissing the hostile work environment cause of action under the law as it existed at the time Barnum commenced her cause of action.
The Appellate Division pointed out that Barnum's lawsuit was commenced in 2004, but the current liberalized standards of interpretation applicable to the New York City Human Rights Law did not become effective until 2005. Consequently, to the extent that Barnum’s complaint may be read as asserting a cause of action pursuant to the New York City Human Rights Law, the issue of whether summary judgment should have been awarded to the NYCTA dismissing that cause of action must be assessed in accordance with the law in effect as of the date of the commencement of her lawsuit.Thus the standards for recovery under Title VII of the federal Civil Rights Act of 1964 control with respect to claims asserted pursuant to both the Executive Law and the New York City Human Rights Law prior to the effective of the amendment.
Applying those standards, the Appellate Division ruled that the Authority’s motion for summary judgment should have been granted by Supreme Court and Barnum’s petition dismissed.
Appointing authority’s final determination as whether or not to take disciplinary action against an employee controls
Rosenblum v New York City Conflicts of Interest Board, 2009 NY Slip Op 31073(U), Supreme Court, New York County, Docket Number: 101121/09, Judge Jane S. Solomon, [not selected for official publication]
Stephen Rosenblum, a provisional Principal employed by the New York City Board of Education [Education], filed an petition pursuant to CPLR Article 78 seeking a court order prohibiting the New York Conflicts of Interest Board (Board) and New York City Office of Administrative Trials and Hearings (OATH) from proceeding with an administrative hearing before OATH initiated by the Board.
The Board served Rosenblum with a Notice of Initial Determination of Probable Cause based on statements by another Principal alleging that Rosenblum had approached him seeking his aid in keeping Rosenblum's son, a teacher in that Principal's school, from losing his job.
The Board alleged that Rosenblum’s action violated the Charter of City of New York Section 2604(b)( 3 ).
Section 2604(b)(3) provides that “No public servant shall use or attempt to use his or her position as a public servant to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant.”
However, about October 7, 2008, Theresa Europe, Deputy Counsel to the Chancellor of the Board of Education, informed the Conflicts of Interest Board’s staff that Education had made its final determination and it decided not to proceed with charges against Rosenblum on the basis of the facts alleged in the Board's initial determination of probable cause.
Notwithstanding Education’s decision, the Board asked OATH to find Rosenblum guilty of violating Section 2604(b)(3) and to impose a $10,000 fine and issue an order “imposing such other penalty as it deemed proper.”
Rosenblum’s motion to dismiss the OATH proceeding was denied by OATH Administrative Law Judge Faye Lewis.
Addressing Rosenblum's petition, Judge Solomon noted that although “as a general rule courts do no interject themselves into ongoing administrative proceedings, they may do so when the agency in question acts without jurisdiction, or in excess of powers in a proceeding over which it has a clear legal right to such jurisdiction.” In such cases a writ of “prohibition may lie.”
In this instance, said the court, Rosenblum “has a clear legal right to judicial intervention to prevent the Board from continuing with its hearing before OATH.
Although the Education had made a final decision not to proceed with charges against Rosenbaum, the Board argued that, notwithstanding that decision, Section 2603 (h) authorizes it to proceed with the administrative hearing, to impose a fine, and to recommend that Rosenblum be suspended or dismissed.
In response, Supreme Court said that “While an agency's interpretation of the statute that it administers is entitled to deference, so long as it is reasonable …the Board's interpretation here does not meet that standard."
Judge Solomon ruled “Nothing in this subsection authorizes the Board to sanction a public servant whose appointing officer has made a final decision not to discipline him or her.”Judge Solomon granted Rosenblum’s petition prohibiting the New York Conflicts of Interest Board and the New York City Office of Administrative Trials and Hearings from preceding any further with the administrative hearing [OATH Index no. 1233/09].
NYC Department of Corrections v Auguste, OATH Index No. 2770/08
OATH Administrative Law Judge Joan R. Salzman, found that a New York City Department of Corrections correction officer, Emile Auguste, had left his residence repeatedly without permission while on sick leave.
The ALJ also found that Auguste failed to log in and out properly in accordance with attendance rules, failed to account to the Department for his whereabouts, and falsely reported that he was at his doctor's office on 11 occasions when in fact he was not there. Indeed, Salzman found the physician’s office was closed a number of times when Auguste claimed to have been at the office.
ALJ Salzman also found that Auguste disobeyed a direct order to document his medical appointments and was excessively absent.Salzman recommended termination of employment for this abuse of sick leave.
One-day suspension without pay recommended as the penalty for operating a truck without wearing a seatbelt
New York City Department of Sanitation v Wright, OATH Index No. 2490/09
OATH Administrative Law Judge Tynia Richard found that the Department of Sanitation established that one of its drivers, Kenneth Wright, was operating his truck without wearing a seatbelt.
Wright admitted that he had unlatched his seatbelt while at a red light, but explained that he had done so only because his right side mirror had dislodged and he needed to exit the truck to adjust it.
Without crediting Wright's explanation, the ALJ ruled that even had he done so, Wright had not made his “defense of necessity” because he should have pulled over to a safe place to make the adjustment, rather than attempting to fix the mirror in the middle of a busy intersection.
The recommended penalty: a one-day suspension without pay.
January 26, 2010
Doctrine of estoppel against governmental entities may be invoked where its "misleading nonfeasance would otherwise result in a manifest injustice"
Agress v Clarkstown Cent. School Dist., 2010 NY Slip Op 00455, Decided on January 19, 2010, Appellate Division, Second Department
Jo Ann Agress, served as a school psychologist with the Clarkstown Central School District. In 2000 Agress resigned from her position after allegedly being told by one of the District's employees working in its benefits office that since she was a "vested" employee at the time of her resignation, she was entitled to a continuation of her health benefits as long as she paid the full premiums until she attained 55 years of age.” Agress also alleged that this employee told her that once she attained age 55, the District would become responsible for payment of 50% of the health insurance premiums.
In June 2006, Agress told the District that she would be turning 55 in July and that, as a result, it should start to pay 50% of her health insurance premiums. The District, however, told Agress that “an error had occurred and that [she] had not been entitled to the continuation of her health benefits after she resigned.” The District then terminated Agress’ health insurance coverage with the District, compelling her to secure alternate coverage for herself and her family at a much higher cost.
In response to Agress’ initiated a lawsuit in April 2007 to recover damages for “negligent misrepresentation,” the District asked Supreme Court to dismiss her petition. Supreme Court granted those branches of the District’s motion seeking summary judgment dismissing the negligent misrepresentation and implied contract causes of action but retained her third cause of action based on her claim of promissory estoppel.*
The Appellate Division agreed with the lower court’s finding that triable issues of fact existed with respect to the issue of “detrimental reliance.”
The Appellate Division said that "The elements of a cause of action based upon promissory estoppel are a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise."
Although as a general rule estoppel may not be invoked against a governmental body to prevent it from performing its statutory duty or from rectifying an administrative error there is an exception to this general rule "where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice."
Pointing to its ruling in Landmark Colony at Oyster Bay v Board of Supervisors of County of Nassau, 113 AD2d 741, the Appellate Division noted that it had invoked the doctrine of estoppel against governmental entities where its "misleading nonfeasance would otherwise result in a manifest injustice" such as where the aggrieved party has been the victim of bureaucratic confusion and deficiencies.
In this instance, said the court, although the District’s employee did not induce Agress to resign, once Agress did resign, she made certain employment and insurance decisions based upon the earlier representations that she was entitled to receive continuing health insurance coverage from the District.
In view of this, the Appellate Division ruled that there was a “triable issues of fact” as to
1. whether those representations were made;
2. whether it was reasonable for Agress to rely upon them if they were made;
3. whether the District explicitly or implicitly authorized them; and
4. whether the District, by affording health insurance coverage to Agress for several years after she resigned, ratified the alleged earlier representations, even if they had been made in error.
* The doctrine of promissory estoppel states that if a party changes his or her position substantially either by acting or forbearing from acting in reliance upon a gratuitous promise, then that party can enforce the promise even if the essential elements of a contract are not present.
The IRS Advisory Committee on Tax Exempt and Governmental Entities compliance verification checklist for public employers
Source: FSLG Newsletter dated January 25, 2010
The IRS Advisory Committee on Tax Exempt and Governmental Entities has initiated a project “to help public employers know what is expected of them so they can self-correct problems before the IRS initiates a compliance check, examination, or otherwise identifies a compliance problem within a Federal, state, or local governmental entity.”*
The ACT/FSLG Subcommittee members has requested assistance in refining and improving the draft Checklist and is asking state and local government employers’ payroll officials, human resources professionals, and their legal and financial advisors to “pretest” a draft “Compliance Verification Checklist for State and Local Governmental Entities.”
The draft Checklist, a cover memorandum from the ACT/FSLG Subcommittee members, and a cover memorandum from the ACT/FSLG Subcommittee members are available at the NCSSSA web page.
A brief evaluation form the Subcommittee would like state and local government officials to complete after reviewing the draft is available at http://www.surveymonkey.com/s/825RHY5.
It is reported that the Evaluation Form is structured to take less than 4 minutes to complete.
The deadline for the ACT Committee to receive the completed survey materials is March 15, 2010.
* In order to assist public employers in complying with federal employment tax laws and regulations, the IRS Advisory Committee on Tax Exempt and Governmental Entities (“ACT”) has developed a compliance verification checklist for public employers that is now posted on the National Conference of State Social Security Administrators (NCSSSA) website at http://www.ncsssa.org/whatsnewcombo.html.
Wall v Town of Niskayuna, USDC, N.D.N.Y. 1-29-2009, 07-CV-350
One of the central issues in the Wall case* concerning the 2005 promotion of a police officer from Sergeant to Lieutenant was the allegation that the promotion was made from a civil service list that was invalid because it contained the names of only two candidates while three were needed to constitute a valid list.
Making a permanent appointment from an eligible list consisting of less than three names is lawful as such an appointment has been made from a valid eligible list. It is simply that a list containing the names of less than three persons interested in appointment to the position is not a mandatory eligible list.
Where there is a non-mandatory list in existence, the appointing authority may  select an individual whose name is on the list for permanent appointment to the position or  make a provisional appointment to the position or  elect to keep the position vacant.
In contrast, where there is a mandatory list available for appointment to the position, the appointing authority may either  appoint one of the three candidates receiving the highest scores permanently to the position or  elect to keep the position vacant.
In the event the appointing authority elects to make a provisional appointment when a non-mandatory eligible list is available, the appointing authority may either  provisionally appoint an individual whose name is on the eligible list or  provisionally appoint some other individual who meets the minimum qualifications for appointment to the position.
However, Civil Service Law Section 65.4 and case law provide that in the event the appointing authority appoints an individual whose name is on a non-mandatory list to the position as a provisional appointee, the provisional appointee will attain permanent status in the position if he or she is so retained for a period in excess of the probationary period for the position.
The various terms, conditions and circumstances under which such permanent status obtains to the benefit of a provisional appointee are considered in such decisions as Matter of Roulette, 40 AD2d 611, Haynes v Chautauqua County, 55 NY2d 814, Becker v New York State Civil Service Commission, 61 NY2d 252 and La Sota v Green, 53 NY2d 491.
* Police Sergeant Frances Wall alleged that she was not selected for promotion from Sergeant to Lieutenant because of her gender. The jury’s verdict: gender played no role in her not being selected for the promotion.
Mediation suggested as a possible remedy to resolve the strained relationship between an employee and a supervisor
New York City Health and Hospitals Corporation v Jean-Baptist, OATH Index No. 1648/09
OATH Administrative Law Judge Kara Miller dismissed charges against a dietary aid, Claire Jean-Baptiste, accused by the New York City Health and Hospital Corporation of speaking inappropriately to her supervisor and failing to follow her directive not to place food trays in front of the exhaust fans of a refrigerator.
The supervisor, however, did not see Jean-Baptiste so place the trays in the refrigerator, nor did Jean-Baptiste admit to doing so.
Jean-Baptiste was also charged with arguing with her superior. Judge Miller found that the argument took place in a private area and did not involve profanity or disrupt the workplace. She ruled that this behavior did not amount to misconduct.
ALJ Miller, however, commented that the relationship between the Jean-Baptiste and her supervisor was strained and suggested that meditation might be an appropriate remedy in this situation.
Naming and serving a necessary party in an appeal to the Commissioner of Education is a critical requirement
Appeal of Ronald S. Miller from action of the Board of Education of the City School District of the City of Lackawanna regarding the appointment of a custodian, Decisions of the Commissioner of Education, Decision No. 15,917
Ronald S. Miller, a member of Lackawanna Board of Education, asked the Commissioner of Education to declare that the Board had violated its policies and the Civil Service Law when it appointed Timothy Gross as a custodian on December 17, 2008. Miller further asked the Commissioner to remove Gross from the position and direct that David Parker be appointed to the position in his stead.
The Commissioner dismissed Miller’s application because he failed “to join Mr. Gross as a necessary party.”
The Commissioner said that “a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.” Joinder requires that the "necessary party"  be clearly named as a respondent in the caption and  be served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.In this instance Miller neither served Gross with a copy of the petition, nor did he name him as a respondent.
Accordingly, said the Commissioner, Miller’s appeal must be dismissed for failure to join a necessary party.
Discharge following a positive test for unlawful drugs is disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Matter of Shugg v Commissioner of Labor, 62 AD3d 1199
Following his discharge by his employer tested positive for cocaine following an injury at work, the Unemployment Insurance Appeal Board ruled that Shugg had engaged in disqualifying misconduct for the purposes of unemployment insurance and dismissed his claim for benefits.
Citing Matter of Young, 28 AD3d 989, the Appellate Division said that "An employee's use of controlled substances which produces a positive result following a drug test has been held to constitute disqualifying misconduct" in such situations.
Shugg admittedly used cocaine a few days before his positive test result and was aware of the employer's policy concerning the use of drugs. While Shugg contended that his dismissal violated the Human Rights Law, the court pointed out that "[a]lthough alcohol dependency qualifies as a disability under the Human Rights Law, drug abuse does not."
The Appellate Division also rejected Shugg’s argument that his employer failed to offer him a "last chance agreement," as he claimed it did with respect to two other employees, holding that there was no showing that either of those individuals received last chance agreements after failing a drug test.
Finding that substantial evidence supported the Appeal Board’s decision, the Appellate Division dismissed Shugg’s appeal.
January 25, 2010
New York State Retirement System’s determination of the jurisdictional classification of a member’s position controls the employee’s membership status
Niagara Frontier Transp. Auth. v DiNapoli, 2010 NY Slip Op 00447, Decided on January 21, 2010, Appellate Division, Third Department
Michael T. McCue began working for the Niagara Transportation Authority as a “fieldperson” in 1972. He was assigned him to work at what then was known as the Greater Buffalo International Airport.
In 1972 Retirement and Social Security Law §40 [b]  [b], [c] provided that membership in the New York State Employees’ Retirement System was mandatory for anyone who entered or reentered the service of the state or a participating employer unless the individual was appointed to a position in "the labor class" or "who are laborers and who are not covered by [Military Law article 9]."
The Authority deemed McCue's to be a laborer and he was not enrolled in the Retirement System. Although McCue was offered the opportunity to join the Retirement System in both 1972 and 1977, he declined on both occasions.* In July 2004, however, McCue applied for membership in the Retirement System. He was enrolled as a Tier 4 member and the Authority initiated making employer contributions on his behalf accordingly.
McCue retired in November 2007, at which time the Retirement System determined that he was, in fact, a mandatory member of the Retirement System as of October 26, 1972 and placed him in Tier I. The Authority was notified that it owed more that $300,000 in employer contributions as a result of the Retirement System’s determination.
The Authority’s attempt to persuade the Retirement System that McCue “was a laborer”** and thus exempt from the mandatory membership provisions set out in the Retirement and Social Security Law was unsuccessful and the System affirmed its previous decision. The Authority sued.
Supreme Court dismissed the Authority’s Article 78 petition and the Appellate Division affirmed the lower court’s determination.
The Appellate Division said that the action brought by the Authority “is a proceeding in the nature of mandamus to review” and did not require a "quasi-judicial hearing” to be provided as a prerequisite to initiating its lawsuit.” All that was required was that the Authority was given an opportunity “to be heard” and permitted to submit evidence in support of its position, which the Retirement System did provide.
Finding that the Authority had been given such an opportunity, the court said that “while the job descriptions it submitted for the title of fieldperson indeed set forth assignments that one might associate with the position of a laborer,” the job description also indicated that the incumbent of the position was required to have “an ability to learn and have knowledge of Federal Aviation Administration regulations relative to airport operations” as a job requirement. Based on this requirement, the Retirement System’s concluded that the job description submitted by the Authority "strongly indicate[d]" that McCue's initial position as a fieldperson encompassed responsibilities beyond that of a laborer.***
In reviewing the Retirement System’s determination, the Appellate Division said that it did not find the Systems “finding in this regard was arbitrary and capricious or an abuse of discretion,” thereby affirming McCue’s status as a Tier I member in the Retirement System.
* Membership in the Retirement System became mandatory for all full-time employees hired after July 1, 1976 — regardless of the jurisdictional class of their position in accordance with Retirement and Social Security Law §500.
** The decision states that McCue was promoted to groundsperson II in 1992, groundsperson I in 1994 and senior groundperson in 2001.
*** There is nothing in the decision indicating the “jurisdictional classification of the position” within the meaning of the Civil Service Law.
Matter of Wright v Kelly, 2010 NY Slip Op 00399, decided on January 21, 2010, Appellate Division, First Department
New York City Police Commissioner Raymond W. Kelly found New York City police officer Leonard Wright guilty of discourtesy to a police sergeant. The penalty imposed: Wright’s forfeiture of 15 days of vacation credit.
Wright appealed but the Appellate Division, unanimously confirmed the Commissioner’s determination.
The court said that “Substantial evidence, including eyewitness testimony, supports the hearing officer's finding of guilt.”
As to the penalty imposed the Appellate Division, noting that Wright had a “disciplinary record” and his acts of discourtesy occurred in the presence of at least two other sergeants, said that his forfeiting 15 days of vacation credit did not shock its conscience, citing Kelly v Safir, 96 NY2d 32.
Failure to file a timely General Municipal Law §50-e(1)(a) notice of claim fatal to court assuming jurisdiction of the matter
Donas v City of New York, 2009 NY Slip Op 03838, Appellate Division, First Department
Harry Donas claimed that as a result of his reporting alleged corruption within in agency, the New York City Department of Environmental Protection, to his supervisor, he was told that he would never be promoted. He sued, contending that he has been damaged monetarily by not receiving the salary to which he was entitled and that his professional standing and reputation has been damaged.
Supreme Court dismissed his petition, finding that Donas had failed to serve the Department with a notice of claim within 90 days of the act or omission underlying his complaint as required by General Municipal Law §50-e(1)(a).*
Supreme Court found that Donas’ claim “accrued no later than September 2003, when he allegedly was told that he would never be promoted.” As he did not serve his notice of claim until January 26, 2005, his action was untimely,** noting that a claim under Civil Service Law §75-b must be brought within one year after it accrues (Civil Service Law §75-b[c]; Labor Law § 740[a]).
* Presumably the court found that Donas was attempting to vindicate a personal interest in contrast to a public interest, hence the filing of a notice of claim was required.
** The court noted that Donas did not seek permission to file a late notice of claim (see General Municipal Law §§ 50-e; 50[i].
Selection of one of available alternative remedies provided by the State’s Human Right Law bars recourse to the other
Tierney v Patchogue Fire Dept. Ambulance Co., Inc., 23 Misc 3d 1124(A)
Penny A. Tierney was a member of the Patchogue Fire Department Ambulance. Disabled as a result of an on-the-job, Tierney subsequently informally requested reinstatement to active membership status. She was granted only "honorary" membership status in July 2005.
In April of 2008, Tierney filed a written request for full membership status with the Ambulance Company. When her request was denied, she filed a complaint with the New York State Division of Human Rights alleging that the Ambulance Company had discriminated against her because of her disability and sex. Tierney later filed a petition in Supreme Court pursuant to CPLR Article 78 objecting to the Ambulance Company’s decision.
The Ambulance Company asked the court to dismiss Tierney petition, contending that her action was barred by the election of remedies provision contained in §297(9) of the Executive Law (New York State’s Human Rights Law).
Tierney argued that her petition was not precluded by the election of remedies provision contained in §297(9) of the Executive Law because the allegations set out in the complaint filed with the Division of Human Rights “differs from that alleged in this [court] proceeding.” Judge Whelan disagreed and dismissed her petition.
The court said that Executive Law, §297(9) provides that “any person claiming to be aggrieved by an unlawful discriminatory practice has a cause of action for damages and such other remedies as may be appropriate, unless such person has filed a complaint with the State Division of Human Rights or with any like local commission and such complaint has not been withdrawn prior to being heard or dismissed by the Division on the grounds of administrative convenience.”
Thus, said Judge Whalen, the statute provides a clear election of mutually exclusive remedies: complainants may file an action or special proceeding in a court having jurisdiction seeking redress from those who have discriminated against them or they may file an administrative complaint with the appropriate administrative agency. They cannot do both and, further, they are bound to proceed in the forum they chose first.
If the statutory complaint sets out the same purportedly wrongful and discriminatory conduct, the statutory election of remedies provision will apply and bar a later commenced action predicated upon the same underlying wrongs, regardless of the labels attached to either the conduct or the remedy sought.
In this instance Tierney’s administrative complaint filed with the State Division of Human Rights charged the Ambulance Company with discriminatory practices due to her physical disabilities and her sex. She thereafter commenced an Article 78 proceeding alleging essentially the same unlawful conduct.
As to Tierney’s representation that her petition addressed other alleged wrongs, Judge Whelan pointed out that “Paragraph 7 of [Tierney’s] petition … incorporates the allegations set forth in the administrative complaint by reference and by attachment.”Under the circumstances, said the court, the Ambulance Company is entitled to have its motion to dismiss Tierney’s petition granted.
Matter of Board of Educ. of Amityville Union Free School Dist. v Amityville Teacher's Assn., 2009 NY Slip Op 04230, Decided on May 26, 2009, Appellate Division, Second Department
Complaining that the arbitrator's award was “indefinite and nonfinal” when it directed that “sixth grade teachers assigned a sixth teaching period” shall be paid at the "negotiated sixth period rate" of pay, the Board of Education asked the court to vacate the award.
The Appellate Division agreed that this portion of the arbitration award “does not clearly define the applicable rate of pay under the award, thus creating a new controversy between the parties with respect thereto.”
The court vacated that portion of the award and remanded the matter to the arbitrator “for a hearing and for a determination solely of that issue” – i.e., the amount of the compensation to be paid a teacher assigned to teach a sixth teaching period.
Citing Meisels v Uhr, 79 NY2d 526, 536the Appellate Division ruled that an award is subject to vacatur as indefinite or nonfinal "only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted, or if it creates a new controversy."
In contrast, the Appellate Division said that “An award is final and definite if the computation of the award is so clear and specific that the determination of the amounts owing is merely an accounting calculation.”
In this instance, said the court, the provision in the award challenged by the school district “does not clearly define the applicable rate of pay under the award, thus creating a new controversy between the parties” as to the proper amount of compensation due the educator assigned to teach a sixth teaching period.
Matter of Richard Lazzari v Town of Eastchester, 62 AD3d 1002
§71 of the Civil Service Law provides for the granting of “workers’ compensation leave” to an employee of the State or a political subdivision of the State who is disabled as the result of a work-connected injury or disease where such injury or disease does not permanently incapacitate him or her for the performance of the duties of his or her position.* If the employee is separated from service after being on §71 for one year** or longer, of for disability.
Where an employee has been terminated while on §71 leave, he or she may Such employee may, within one year after the termination of such disability, make application to the Civil Service Department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected the Civil Service Department or commission.
If the medical officer certifies that the individual is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant position for which he or she was eligible for transfer. If no appropriate vacancy is available, the name of such person is placed upon a preferred list and he or she shall be eligible for reinstatement from such preferred list for a period of four years.
Richard Lazzari, who apparently has been separated from his position while on leave of absence pursuant to §71 of the Civil Service Law, sued the Town of Eastchester, seeking reinstatement to his former position. Although Supreme Court granted his petition and directed Eastchester to reinstate him to his former position, the Appellate Division vacated the order, without prejudice.
The Appellate Division said that a necessary party, the Westchester County Department of Human Resources, had not been named as a respondent in this proceeding by Lazzari and Supreme Court would be required to make “a new determination” in consideration of any “defenses” the County Department of Human Resources may raise concerning the matter.
It is not clear from the decision whether Lazzari neglected to apply to the County Department for a medical examination as a condition precedent to his being declared qualified to return to duty or, if he do so apply, was not certified by the designated medical officer as fit to perform the duties of his former position.
*An employee who is unable to work because of an injury or disease that is not work-related may be entitled to leave pursuant to §72 of the Civil Service Law. §73 of the Civil Service Law controls with respect to the reinstatement of an individual who is separated from service while on leave of absence pursuant to §72.
** An employee is entitled to at least two-years of leave pursuant to §71 if he or she suffers a non-permanent disability as the result of an assault sustained in the course of his or her employment.
January 22, 2010
Is there is a constitutionally-based right of privacy if employees of a government agency text message while on duty?
City of Ontario [California] v. Quon, 08-1332
Source: ScotusWiki [The companion site to SCOTUSblog.com]
The United States Supreme Court will hear an appeal by the city of Ontario, California, and its police department involving the use hand-held communication devices. The appeal concerns an alleged constitutionally-based right of privacy in text messages generated by employees of a government agency and, if there is such a right, whether it is less extensive for city employees using government-owned electronic pagers.
The case involved the city’s review of text messages that a member of a police SWAT, or emergency response, team had sent to another officer with whom he was having a romantic affair, and also messages he had sent to his wife.
The Supreme Court’s final decision in the case is expected to amplify or modify a 1987 decision, Connor v. Ortega, recognizing some workplace privacy for public employees, but counseling that courts should take into account the “operational realties of the workplace.” Although the Court agreed to hear the city’s petition, it denied review of a separate appeal by the provider of the city’s pager service, seeking to test the scope of the federal Stored Communications Act as it applied to disclosure of the context of text messages (USA Mobility Wireless v. Quon, et al., 08-1472).
Issues to be considered by the court:
(2) Do individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.
Matter of Michael Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012
Michael Saunders was served with disciplinary charges pursuant to §3020 of the Education Law alleging that he allowed a student to be strapped into a restraining chair without cause and striking a student in the jaw and chest. Found guilty of these charges, the disciplinary, the arbitration panel terminated him from his teaching position.
Saunders appealed, seeking to overturn the penalty imposed by the panel.
The Appellate Division dismissed Saunders’ appeal, commenting that it “cannot conclude that the penalty of termination from [Saunders] teaching position was so disproportionate to the offenses as to be shocking to one's sense of fairness…”
Noting that where arbitration is mandated by law such as Education Law §3020-a), “the arbitrators' determination is subject to ‘closer judicial scrutiny’” if challenged pursuant to CPLR §7511(b) than it would receive had the arbitration been conducted voluntarily. The tests applied in cases of arbitration mandated by law: [a] The decision must be supported by evidence and cannot be arbitrary and capricious and [b] "In addition, [CPLR] article 75 review questions whether the decision was rational or had a plausible basis."
Further, the Appellate Division said that in “reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists.
One of the elements in Saunders’ appeal was the representation that “ the arbitration panel failed to properly consider evidence of his employer's lack of effort toward remediating his performance” (see Education Law § 3020-a).”
Saunders, however, did not include the transcript of the hearing on which the panel's determination was based in his appeal. This, said the court, precluded a “meaningful appellate review” of his claim and the court did not consider this aspect of his appeal.
Reinstatement following separation from service while on “workers’ compensation leave” pursuant to §71 of the Civil Service Law
Matter of Yolanda Strong v New York City Dept. of Educ., 62 AD3d 592
State Supreme Court, New York County, Leland G. DeGrasse, Jr., granted Yolanda Strong’s petition challenging the New York City Department of Education terminating her employment as a probationary per diem substitute teacher.
The Appellate Division reversed Judge DeGrasse’s ruling, holding that Strong’s lawsuit was untimely as it had been commenced more than four months after the Education Department advised Strong of its determination that she had violated its regulations by “using force as a disciplinary technique.” The Department also told Strong that her name would "remain on the Ineligible Inquiry list,* terminating [her] services with [the Department]."
Critical to the resolution of this appeal was the Appellate Division’s holding that the time limits for Strong commencing her lawsuit challenging her dismissal “was not extended by her administrative appeal of [the Department of Education’s] determination.”
The court also addressed a related issue: A finding by the Unemployment Insurance Appeal Board that Strong had not engaged in corporeal punishment. Such a finding, said the Appellate Division, “lacks preclusive effect.”
* Placing an individual’s name on the "Ineligible/Inquiry" list maintained by the New York Department of Education bars that individual from employment at any DOE school while his or her name remains on such list [McPherson v. New York City Dep't of Education, 457 F.3d 211].
Larabee v Governor of the State of New York, 65 AD3d 74
Two Family Court Judges, a Civil Court Judge and a Criminal Court Judge, whose salaries are specified in Judiciary Law § 221-e and § 221-g, initiated litigation naming the Governor, the New York State Senate, the State Assembly, and the State of New York as defendants.
The judges seek redress for the failure of the government of the State of New York to enact any enhancement in compensation for members of the State Judiciary. They complain that the defendant’s through their practice of setting judicial salaries by “linkage” unconstitutionally abused their power in depriving the Judiciary of any increase in compensation for approximately ten years.
Essentially the practice of “linkage” involved tying salary increases for judges to salary increases for legislators.
The judges sought a court order directing the State to “proceed in good faith to adjust judicial compensation to reflect the increase in the cost of living since 1998.”
Characterizing their lawsuit as asserting the rights of the plaintiff-judges, the Appellate Division said that “it actually constitutes a legal challenge which pits the New York Judiciary against other branches of the state government.”
The Appellate Division said that the Legislature, by subordinating the Judiciary to “its whims and caprices in matters of salary adjustments, brings the Judiciary closer to the world of politics than is tolerable for the disinterested functioning of a court system that must act for ‘the benefit of the whole people.’” In so doing, the court said that “The basic tenet of the separation of powers doctrine, to promote and maintain the independence and stability of each branch of government, has been violated.”
The solution suggested by the Appellate Division: As “Judicial compensation should be as far removed as is practicable from political considerations, it makes sound sense to delegate the issue of judicial compensation to a commission created for that purpose, to analyze and make recommendations to the Legislature on the timing and scope of future increases in judicial salaries….”
The Appellate Division then granted the judges’ motion for summary judgment with respect to their second cause of action, holding that the practice of linkage was an unconstitutional abused power by depriving the Judiciary of any increase in compensation for approximately ten years.
It also directed the “remaining defendants proceed in good faith to adjust judicial compensation to reflect the increase in the cost of living since 1998” and gave the plaintiff-judges “leave to apply for consideration of other remedies should the remaining defendants fail to act within 90 days.”
The text of this 30-page ruling provides an extensive history of the events leading to this lawsuit and a comprehensive analysis of the issues. In December 2009 the Court of Appeals “gave leave to file a brief amicus curiae” to a number of petitioners seeking such status in the appeal now pending before the high court.
January 21, 2010
No right to discovery in a disciplinary procedure unless provided by law or specifically provided by the collective bargaining agreement
Matter of Pfau v Public Employment Relations Board, 2010 NY Slip Op 00340, Appellate Division, Third Department
The Public Employment Relations Board (PERB) determined that the Unified Court System (UCS) engaged in an improper practice under the Taylor Law (Civil Service Law Article 14) when it refused the prehearing disclosure demands made by an USC employee, Ann Pfau after she was served disciplinary charges.
Supreme Court ultimately vacated and annulled PERB's order. PERB [together with District Council 37, Local 1070 as an “intervener”] appealed.
The Appellate Division sustained the lower court’s ruling, noting that “When PERB acts within areas of its expertise, judicial review of its action is limited” but PERB cannot create rights not contemplated by statute or otherwise act in an arbitrary or irrational fashion.
The court explained:
1. In contrast to disciplinary actions, there is “firm footing” for recognizing the right of an employee organization to obtain information relevant to a potential contractual grievance concerning the interpretation, application or alleged violation of a provision of a collective bargaining agreement.
2. Disciplinary proceedings involve alleged misconduct by an employee and serve a significantly different function than a contract grievance. Although the specifications of alleged misconduct set out in the disciplinary charges must be sufficiently detailed to permit the charged employee to prepare and present a defense “there is no general right to disclosure in a disciplinary proceeding.”*
The Appellate Division noted that although PERB conceded that were the disciplinary proceeding held pursuant to Civil Service Law §75, there would have been no right to prehearing disclosure, it nevertheless determined that the disciplinary procedures set forth in the collective bargaining agreement should be considered as negotiated rather than arising from statutory or regulatory provisions. PERB, said the court, then extended the right to disclosure in contract grievance proceedings to include a right to disclosure in disciplinary proceedings.
The court noted that PERB also decided that “the right to prehearing disclosure would … be relinquished if the employee opted for private representation rather than [representation by] a Union attorney.”
The Appellate Division said considering “the starkly disparate roles of contractual grievances and employer disciplinary proceedings,” PERB’s decision to extend the established right to information in processing contract grievances to employee disciplinary proceedings was arbitrary.
Further, said the court, PERB’s making such disclosure in a disciplinary action contingent upon the employee using "Union counsel rather than private counsel," without evidence that such a result was ever desired or even discussed by any party, “lacks rationality.”
* However an employee's right to disclosure, frequently characterized as a "bill of particulars," may be provided by statute [see Education Law §3020-a 3.c.(iii)].
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 https://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 http://booklocker.com/books/7401.html
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