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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.
N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.
February 26, 2010
Matter of Castillo v Town of Oyster Bay, 2010 NY Slip Op 01483, Decided on February 16, 2010, Appellate Division, Second Department
Christopher Castillo was charged with misconduct by his employer, the Town of Oyster Bay Department of Public Works. The hearing officer found that the Department had proven the charges filed against Castillo and recommended that he be terminated from his position. The appointing authority accepted the hearing officer’s findings and recommendation and dismissed Castillo.
Castillo’s CPLR Article petition appealing his termination Supreme Court dismissed his petition on the grounds that he had failed to exhaust his administrative remedies.
The Appellate Division affirmed the Supreme Court’s ruling. It also rejected Castillo’s claim that any effort on his part to “exhaust his administrative remedies” would have been futile because he improperly raised the argument for the first time in his appeal to the Appellate Division.
NYPPL Comments: As an exception to applying the Doctrine of the Exhaustion of Administrative Remedies, the general rule is that an individual is not required to exhaust the available administrative remedy where such action would constitute an exercise in futility. Typically the courts apply this exception in situations where it determines that the administrative decision "is a foregone conclusion."
In addition, the Court of Appeals has held that the exhaustion rule is not inflexible and in Watergate II Apartments v Buffalo Sewer, 46 NY2d 52, indicated that the rule need not be followed where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power.
Another exception to the general rule is set out in Van Tassel v County of Orange, 204 A.D.2d 560. In Van Tassel the Appellate Division ruled that an individual is not required to exhaust the available administrative remedy, in this instance the arbitration procedure set out in a collective bargaining agreement, where the subject matter of the complaint "falls outside the scope of the parties' agreement to arbitrate.”
United Public Service Employees Union And County Of Columbia, Decisions of the Board, PERB U-26761
The Board affirmed a decision of an ALJ rejecting an employer's duty satisfaction and waiver defenses to a charge alleging a violation of §209-a.1(d) of the Act after the employer created a new shift for certain employees in the bargaining unit.
The Board reaffirmed that in determining whether an agreement contains a provision satisfying the duty to negotiate or constituting a waiver of the right to negotiate, the Board will apply standard principles of contract interpretation.
In this instance the Board concluded that the contract language relied upon by the employer was not reasonably clear based upon inconsistent, if not contradictory, terms and phrases utilized by the parties in two relevant articles of the agreement.Finally, the Board rejected the employer's waiver argument finding that language cited by the employer did not constitute a clear, unmistakable and unambiguous waiver of the right to negotiate the creation of a new shift.
The absence of language in the collective bargaining agreement providing for the claimed benefit bars the arbitration of the alleged grievance
Matter of Union-Endicott Cent. School Dist. v Endicott Teachers' Assn., 59 AD3d 799
Joanne Peters, a teacher employed by the Union-Endicott Central School District was a member of the collective bargaining unit represented by the Endicott Teachers Association.
In late 2006, the school district initiated an investigation of allegations that Peters was stealing school property. In March 2007, Peters wrote to the Board of “indicating an intent to retire, contingent on receiving certain health and dental benefits” pursuant to the Collective Bargaining Agreement [CBA].
A few weeks later Peters was arrested and charged with grand larceny based on the same allegations then being investigated by school district.
Peters was suspended and subsequently the district filed administrative disciplinary charges against her pursuant to Education Law § 3020-a. In view of these developments, the district decided to delay the processing of Peters' retirement and request for retiree benefits pending a resolution of the charges against her.
The Association filed a grievance on behalf of Peters and demanded arbitration of district’s refusal to process her retirement and provide the bargained-for benefits. In response to this demand for arbitration, the district filed a petition in Supreme Court for an order that would “permanently staying arbitration.”
Supreme Court granted the district’s application and the Association appealed.
The Appellate Division sustained the lower court’s ruling, holding that “the arbitration at issue was not authorized by the terms of the CBA.”
Noting that the CBA provided for the arbitration of an "alleged violation of the expressed written words in th[e] agreement," the Appellate Division found that “[t]here is no provision in the CBA setting forth the procedure pertaining to the initiation of retiree benefits … [n]or does the CBA provide instruction as to when an employee must be considered to be retired for purposes of receiving benefits thereunder.”
According, the court ruled that in the absence of any provision in the collective bargaining agreement requiring the school district to take action while Peters was under suspension, the district’s decision to delay action regarding her retirement did not violate any expressed right or procedure set out in the CBA and therefore was not arbitrable.
Termination recommended for two correction officers found guilty of using excessive force on an inmate
Dept. of Corrections v Rodney Williams and Alexander Williams,* OATH Index Nos. 2215/08 and 2216/08
Administrative Law Judge John B. Spooner found two correction officers searched an inmate's cell without authorization and that one of the officers used impermissible force against the inmate. The ALJ also found that the two officers also failed to seek medical attention for the inmate and filed false reports about the incident.
Spooner recommended that both be terminated from their positions.
* Charges involving the same incidents were also served upon a third correction officer, Emanuel Archibald, [OATH Index No. 2214/09] but Archibald’s case was severed from the two cases involving the Williams.
Elements essential to a grand jury making a finding concerning a public official’s performance of his or her duties
Matter of Second Report of Seneca County Special Grand Jury of Jan. 2007. 59 AD3d 1079
It is a rather rare occurrence for a grand jury to be asked to consider alleged misconduct by of public officer. In Second Report the Appellate Division considered the basis for a grand jury making a finding concerning a public official’s performance of his or her duties.
The issue arose when the “first named public official” in a report by a Grand Jury, a public official of Seneca County, appealed a County Court’s decision directing that a grand jury report be filed as a public record.
The Appellate Division sustained the official’s appeal, indicating that "Without a [clear and adequate charge] as to . . . [the official's] duties, it was not only impossible for the Grand Jury to determine that [the official ] was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allowed the Grand Jury to simply substitute its judgment for that of [the official]"
The court said that it was "incumbent upon the prosecutor to instruct the Grand Jury regarding the duties and responsibilities of the public servant who is the target of the probe," citing Morgenthau v Cuttita, 233 AD2d 111, lv denied 89 NY2d 1042.
In this instance the court agreed with the official’s complaint that the special prosecutor's instructions concerning the official's duties were vague and inadequate.
Only service of the petition and related papers an individual authorized by the agency head to accept service constitutes proper service
Matter of Lowney v New York State Division of Human Rights, 2009 NY Slip Op 30270(U), February 4, 2009, Supreme Court, New York County, Docket Number: 108754/07, Judge: Walter B. Tolub [Not selected for inclusion in the Official Reports]
Cynthia Lowney sued the New York State Division Of Human Rights [DHR] and the New York State Department Of Labor [DOL], Unemployment Insurance Appeal Board.
Lowney, an attorney, was a former Department of Labor ("DOL") employee who was terminated from her position as an Administrative Law Judge in April 1992.
Ultimately the Division issued a final order declaring that Lowney won her retaliation claim and ordered the Labor Department to pay her approximately 20 months of back salary and $50,000 in compensatory damages. Subsequently Lowney sought the inclusion of a finding of gender discrimination, an additional award of back pay, an increase in compensatory damages and an award of the value of certain fringe benefits.
However, these efforts were unavailing because the DOL, a necessary party, had not been properly served with respect to these additional allegations and demands.
According to the decision, the Commissioner of Labor had designated the attorneys in the Counsel's Office of DOL in Albany to accept service on behalf of the DOL or any DOL official being sued in a representative capacity.
However, the notice of petition and petition were served on a DOL secretary, Roxanna Diaz, at a DOL office in New York City. Of critical significance, Ms. Diaz was not authorized to accept service on behalf of the DOL, nor was she authorized to accept service on behalf of the Commissioner of the Department of Labor.
In the words of Justice Tolub, “The only person served was Ms. Diaz and service of process on an agency employee who is not designated to receive service of process does not constitute process service upon the agency.”
Accordingly, Justice Tolub denied Lowney’s motion to renew and/or reargue her petition seeking additional relief.
February 25, 2010
“Firefighters Rule” bars police official from suing his or her employer for injuries he or she suffered as a result of employer's alleged negligence
Wadler v City of New York, 2010 NY Slip Op 01373, Decided on February 18, 2010, Court of Appeals
The parking lot of the New York City Police Headquarters in Manhattan is protected by a concrete barrier-gate that can be retracted into the ground to allow entry to the lot. If it is necessary to stop an entering vehicle, the gate can be raised, automatically and quickly, with enough force to lift a car off the ground.
The commanding officer of the New York City Police Commissioner's liaison unit, David Wadler, arrived at his place of work at Police Headquarters and displayed his credentials to one of the police officers guarding the parking lot. The barrier was lowered but then, accidentally, raised again while Wadler driving over it, lifting the vehicle some four feet into the air and Wadler was injured as a result.
Wadler sued, but the Court of Appeals, affirming lower court rulings, held that in this instance the "firefighter rule," which bars common-law negligence recovery by firefighters and police officers for injuries that result from risks associated with their employment, required the dismissal of his lawsuit notwithstanding the fact that he was injured by the negligent operation of a security device.*
The Court of Appeals explained that here the cause of the injury to Wadler, -- a high-security device protecting the police headquarters parking lot -- was plainly a risk "associated with the particular dangers inherent" in police work. Although “ordinary civilians” may encounter such devices, police officers, whose duties may include working in secure areas that are at risk of a terrorist attack, are far more likely to do so.
An act taken in furtherance of a specific police function - entry into a protected parking lot, which only Wadler's police credentials allowed him to enter - exposed him to the risk of this injury, said the court.
* In Zanghi v Niagara Frontier Transportation Commission, 85 NY2d 423. the Court of Appeals held that "[P]olice and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment." Since 1996, the rule has been applicable only in actions against a "police officer's or firefighter's employer or co-employee" (General Obligations Law § 11-106). The decision also notes that whether a police officer is on duty or not is not dispositive; police officers often, by the nature of their jobs, face significant risks even when they are not technically at work.
Matter of Brisman v Hebrew Academy of Five Towns & Rockaway, 2010 NY Slip Op 01480, Decided on February 16, 2010, Appellate Division, Second Department
Nachum Brisman was terminated from his “tenured teaching position” at the Hebrew Academy. He subsequently filed a petition pursuant to CPLR Article 75 with Supreme Court in an effort to confirm an arbitration award* that granted him reinstatement to his fomer teaching position with the Academy at an annual salary of $100,000, awarded him back contributions to his pension plan, and awarded him the sum of $50,000 in back salary.
The Academy contended that the award “created a new contract” between itself and Brisman and cross-petitioned to vacate the award. Supreme Court granted the Academy’s petition and vacated the arbitration award. Brisman appealed.
The Appellate Division reversed the lower court’s ruling and confirmed the arbitration panel’s award. The court noted that the arbitration panel had found that Brisman had been  ”wrongfully terminated, without just cause;”  directed Brisman’s reinstatement with back salary; and  ruled that it would “retain jurisdiction over the matter indefinitely.”
Noting that "An arbitration award can be vacated by a court pursuant to CPLR 7511(b) on only three narrow grounds, i.e.,  if it is clearly violative of a strong public policy;  if it is totally or completely irrational, or  if it manifestly exceeds a specific, enumerated limitation on the arbitrators' power," the Appellate Division said that Supreme Court was incorrect in granting the Academy’s cross-petition.
Significantly, the Appellate Division commented that “The panel's retention of jurisdiction [indefinitely] is not ‘inextricably intertwined’ with its reinstatement of [Brisman] to a tenured position with [the Academy] or with the provisions of the award referable to [Brisman’s] pension and salary."
* The parties had agreed to arbitrate the matter of Brisman termination in accordance with Jewish law and the rules of the Beth Din of America.
Hewlett Woodmere Administrative and Supervisory Association And Hewlett-Woodmere Union Free School District, PERB U-27459
PERB Administrative Law Judge Cacavas ruled that a charge filed more than four months after the Association knew or should have known that an impact bargaining violation had occurred is untimely and must be dismissed. Where there is a failure to file in a timely fashion, subsequent events will not extend the period of limitations.
Notwithstanding the timeliness issues, the mere facts that an employer would not agree to a union's demands or proceed in negotiations according to the Association's wishes, does not constitute bad faith. A totality of the conduct analysis is required to determine both parties' sincerity in desiring to reach resolution.
Matter of Leary v New York City Employees' Retirement Sys., 59 AD3d 547
More often than not an application for accidental disability retirement benefits is rejected on the grounds that the event leading to the injury resulting in the filing of the application for such a benefit did not constitute an “accident” within the meaning of the controlling statute.
Here, however, Dorothy Leary won her appeal challenging the denial of her application for accidental disability retirement benefits by the New York City Employees’ Retirement System.
Both the Board of Trustees of the New York City Employees' Retirement System Supreme Court, Kings County, rejected her contention that she had suffered an accident within the meaning of the law as the result of her slipping and falling while going down the stairs while at work because of her wet shoes.
The Appellate Division reversed the lower court’s ruling, holding that Leary had, indeed, suffered an injury resulting from an accident that qualified her for accidental disability retirement benefits.
Leary, a part-time junior public health nurse, “slipped, stumbled, and injured her left knee while descending a staircase inside Public School 173 in the Bronx, the school to which she was assigned.” Leary that she had slipped and stumbled on the stairs because her shoes were wet from the snowy and wet condition of the ground outside the school building.
Although the Medical Board determined that Leary was disabled from performing her duties as a junior public health nurse, it recommended that her application for accidental disability retirement benefits be denied on the ground that she failed to establish that her injuries were sustained as the result of an accident within the meaning of Retirement and Social Security Law §605.
The Appellate Division, citing Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. Of N.Y., 57 NY2d 1010, commented that for the purposes of qualifying for an accidental disability retirement allowance the claimant must have suffered an injury as the result of "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.”
The Retirement System conceded that the cause of Leary’s injury was her slipping due to the wet condition of her shoes from the snow she brought in from outside the school building. This, said the Appellate Division, “was not an act undertaken in the performance of the petitioner's ordinary employment duties but rather a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.”
In light of the unrefuted credible evidence presented by Leary as to the cause of her injury, the court held that the Board “could not have rationally concluded that [Leary’s] injuries were sustained as a result of anything other than an accident within the meaning of the governing authorities.”
Thus, said the court, Supreme Court should have granted Leary’s petition and annulled the Board’s determination.
Probationer must prove dismissal was made in bad faith or for a statutorily or constitutionally impermissible reason
Matter of Bonanno v Nassau County Civ. Serv. Commn., 59 AD3d 541
Dorothy H. Bonanno, a probationary employee dismissed from her position, sued to regain her position alleging that her termination was arbitrary nor capricious.
The Appellate Division, observing that "A probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a showing that the termination was for a constitutionally impermissible purpose, in bad faith, or in violation of statutory or decisional law," dismissed her appeal.
Noting that Bonanno had the burden of demonstrating bad faith by “competent evidence, not speculation," the court said that the appointing authority’s decision to discharge her “was rationally based and thus was neither arbitrary nor capricious.”
Further, said the court, Bonanno failed to prove that her dismissal was carried out in bad faith or illegally accomplished nor did she raise a "material issue of fact" with respect to that issue so as to warrant a hearing.
Williamson v Delsener, 59 AD3d 291
In this case the Appellate Division considered the impact of an exchange of e-mails between attorneys representing the parties with respect to the settlement of the then pending litigation.
The court held that “the e-mails exchanged between counsel, which contained their printed names at the end, constitute signed writings within the meaning of the statute of frauds," citing Stevens v Publicis, SA, 50 AD3d 253.
Accordingly, said the court, "the plaintiffs were entitled to judgment and the e-mailed agreement to settle at 60% of the amount demanded was sufficiently clear and concrete to constitute an enforceable contract."
Changing the job description of a position to include new or additional duties must satisfy a “rational basis” test to survive judicial scrutiny
Matter of Criscolo v Vagianelis, 12 NY3d 92
The NYS Department of Correctional Services provides for three levels of administrative hearings to consider “inmate misbehavior reports.”
Tier III hearings address the most serious inmate misbehavior implicating the most severe punishment and "may be conducted by the superintendent of the correctional facility, the deputy superintendent, a captain, a commissioner's hearing officer employed by DOCS's central office," or "some other employee" designated by the correctional facility's superintendent "in his or her discretion."
Andrew S. Criscolo challenged the New York Department of Civil Service’s Division of Classification and Compensation’s revising the position descriptions for the titles of Education Supervisor, Plant Superintendent (A and B) and Assistant Industrial Superintendent (A and B) to include conducting Tier III hearings when so designated by a correction facility’s superintendent.
The Court of Appeals sustained the Division’s revision of the job descriptions of these several titles to include "serving as a Tier III hearing officer when so designated by a facility superintendent."
The Court noted that "[a]dministrative determinations concerning position classifications are . . . subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis," citing Cove v Sise, 71 NY2d 910.
In this instance, said the Court, the Division demonstrated a rational basis for adding Tier III hearing duties to the civil service titles at issue as follows:
Before revising the classification standards, the Division:
1. Analyzed the Tier III hearing process;
2. Determined the knowledge, skills and abilities required to conduct these hearings;
3. Determined the knowledge, skills and abilities required for the identified civil service titles; and
4. Concluded that the incumbents of each title performed administrative, supervisory, and managerial tasks, incumbents were required to have good communication skills, and exercised decision-making on issues of consequence to Corrections, including the operation of the physical plant and industrial and educational programs.
Accordingly, the Court of Appeals concluded that the Division acted rationally when it decided that Tier III hearing work was no more complex than duties already encompassed within these titles, and that employees in these titles were qualified to conduct Tier III hearings.
In sustaining the Division’s determination the Court pointed out that New York’s Constitution and its Civil Service Law require that promotions be made after competitive examination and that “reclassification may not be employed as a device to sanction the performance of out-of-title duties and thereby avoid the requirement of a competitive examination for promotion” nor may there be “a deliberate manipulation of a reclassification simply by first imposing or by assuming new duties and responsibilities, and then thereby avoid the necessity for filling vacancies by promotion by reclassifying the added duties and responsibilities.”
The Court of Appeals cited Gavigan v McCoy, 37 NY2d 548, Niebling v Wagner, 12 NY2d 314, and Mandle v Brown, 4 AD2d 283, affirmed 5 NY2d 51, as cases demonstrating the proposition that an employee cannot achieve a higher grade or salary by being assigned or engaging in out-of-title work “because this would violate the fundamental civil service tenet of advancement through competitive examination.”
February 24, 2010
The Court of Appeal decides if the State Legislature has met its Constitution obligation to determine if judicial salaries should be adjusted
Matter of Maron v Silver, 2010 NY Slip Op 01528, Decided on February 23, 2010, Court of Appeals*
The Court of Appeals has ruled on the lawsuit initiated by a number of judges challenging the State Legislature’s failure to increase the salaries of the State’s Judiciary since 1998.
Maron and the other plaintiffs contended that “due to the lack of a cost-of-living increase for more than 11 years, judges no longer earn salaries that are appropriate given the significance of their position in our tri-partite form of government and the role they play in ensuring the rights of all members of society.” They argued that such legislative inaction has resulted in the “real value” of judicial salaries declining between 25% to 33% since 1998.
The majority opinion provides a brief historic prospective of the events leading to these lawsuits, noting that in 2006, the Judiciary submitted to then Governor Pataki, as part of its proposed annual budget, a request to fund salary adjustments retroactive to April 1, 2005 in an effort to restore the rates of compensation paid State court judges with parity with federal judicial salaries. The proposal failed because the “Legislature and the Governor could not agree on a pay increase for the legislators themselves.”
In 2007, then Governor Spitzer included in his Executive Budget funds to provide for judicial pay raises, retroactive to April 1, 2005, which, if implemented, would have placed salaries of State Supreme Court justices at an amount roughly on a par with federal judicial compensation.
The Legislature removed that provision from the budget but the Senate passed a bill (2007 NY Senate Bill S5313) increasing judicial compensation, this time retroactive to January 1, 2007, and calling for the creation of a commission to review future salary increases for both judges and legislators. Governor Spitzer refused to support this legislation, however, unless the Legislature enacted campaign finance and ethics reform measures.
Two months later, the Governor expressed support for a "judges only" pay bill. The Senate subsequently passed another bill (2007 NY Senate Bill S6550) providing for an increase in judicial salaries, this time without any corresponding increase for legislators. It also called for the establishment of a commission to examine future increases in judicial salaries taking into account the needs of the Judiciary and the State's ability to pay. The Assembly refused to act on that bill because it did not provide for an increase in legislative pay.
In 2008 Governor Paterson and the Legislature approved a budget for 2008-2009 that included $48 million for judicial salary increases but it was a so-called "dry appropriation," requiring further legislation before the increases in salaries therein provided could be paid — legislation that was never enacted.
In the words of the Court of Appeals: “Although all parties to this litigation agree that Article VI justices and judges have earned and deserve a salary increase, the failure of the Legislature and the Executive to come to an agreement on legislation effecting a pay increase has led to the continuing inertia underlying this dispute.”
Describing the situation whereby the Court of Appeals is required to adjudicate the constitutional issues relative to an underlying matter upon which all have agreed “unfortunate,” the Court said that its decision constituted an effort to strike the appropriate balance between preserving the independence of the Judiciary and avoiding encroachment on the budget-making authority of the Legislature.
The court concluded that judicial compensation in present and future budget deliberations cannot depend on unrelated policy initiatives or legislative compensation adjustments. While whether judicial compensation should be adjusted, and by how much, is within the province of the Legislature, “whether the Legislature has met its constitutional obligations in that regard is within the province of this Court.”
Holding that “as a matter of law, the State defendants' failure to consider judicial compensation on the merits violates the Separation of Powers Doctrine,” the case was remanded to Supreme Court with the expectation there would be “expeditious legislative consideration of the matter.”
The full text of the ruling is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01528.htm
* Judge Smith dissents in an opinion. Chief Judge Lippman took no part in deciding this matter.
Appeal challenging increasing the school superintendent’s compensation dismissed “for failure to name a necessary party” – the Superintendent
Appeal of George R. Hubbard v Board of Education of the Greece Central School District, Decisions of the Commissioner, Decision No. 16,027
At a special board meeting on September 29, 2008, the Greece Central School Board adopted an Amendment to the superintendent’s Employment Agreement providing for increase in the superintendent’s salary to $209,399 for the 2008-2009 school year, reflecting a 3% increase in the superintendent’s compensation.
In addition, the Agreement was amended to provide that the district’s contribution to the superintendent’s health insurance premium would be 80% of the premium, a decrease from 90% and the superintendent would be responsible for the payment of the resulting10% increase in his share of his contribution for his insurance premium.
George R. Hubbard, alleging that in approving the Amendment the Board “failed to follow Board Policy #6431 … and failed to comply with commitments it made in response to an Audit Report issued by the Office of the New York State Comptroller.”
Hubbard asked the Commissioner to direct the Board “to comply with the Policy and Audit and to properly adopt an amendment to the superintendent’s employment agreement.”
The Commissioner dismissed the appeal on technical grounds: the superintendent, a necessary party because his employment status and benefits could be affected, was neither named in the caption nor personally served with a copy of the notice of petition or petition. Simply stated, any party that would be affected by the Commissioner’s decision is required to be named as a necessary party in such an appeal.
However, the Commissioner elected to address the merits of Hubbard’s appeal notwithstanding this fatal defect, indicating that the policy requires the district to prepare, to the extent feasible, estimated annual costs for each portion of any new employment contract or addendum; to attach such estimates to the contract or addendum; and to make the estimated costs available to the public 10 days prior to any board discussion, if possible.
The Commissioner said that the record indicated that that documentation of the estimated costs was not attached to the Amendment nor was the actual cost of the health insurance premium, while calculable, provided. Nonetheless, said the Commissioner, “I find that [district] substantially complied with the Policy in that the essential cost aspects of the Amendment were provided and, most important, the Amendment was discussed, approved and reported in open session.
Addressing the Audit, which focused mainly on a capital improvement project that began in 2000, Medicaid reimbursements for eligible special education students, and internal controls over information technology and personal services payments, the district agreed to present all individual employment agreements to the board of education, seek board approval of any changes that had a financial impact and reflect those changes in the minutes of the board.
The Commissioner found that the District had complied with the Audit recommendation, noting that the Amendment was presented to the board, board approval was sought, and obtained, and the vote of the Board with respect to the amendment was conducted in open session.
Accordingly, the Commissioner concluded that the district “met its commitment to take corrective action regarding employment agreements as stated in the Audit.”
Daniel Farrey And District Council 37, AFSCME, AFL-CIO, Decisions of the Board, PERB U-27677
The Public Employment Relations Board affirmed the decision of an ALJ dismissing a duty of fair representation charge filed by Daniel Farrey (Farrey) against District Council 37 (DC 37) with respect to negotiated provisions of an agreement relating to the federal Fair Labor Standards Act (FLSA).
The Board found that Farrey's challenge to the contract provision purporting to exempt a title in a negotiation from FLSA coverage was untimely and outside the scope of his charge.
The Board also denied Farrey's exceptions challenging the negotiated modification to the compensatory time program concluding that Farrey had failed to demonstrate that DC 37 acted arbitrarily, discriminatorily or in bad faith.
Finally, the Board rejected Farrey's exceptions challenging DC 37's agreement not to pursue FLSA litigation reiterating that an employee organization is granted wide discretion under the Act to agree not to pursue particular claims so long as the employee organization is not improperly motivated.
Removal and appointment of an individual to the position of Election Commissioner by a county legislature
Matter of Wood v County of Cortland, 23 Misc 3d 913
The general rule is that the power to appoint implies the power to remove. The Wood case demonstrates an exception to this rule: The power to appoint does not support a claim of the power to remove an incumbent when removal from the position in question is provided for by statute.
William J. Wood, Chair of the County Democratic Committee, sued Cortland County and Thomas Brown contending that he was wrongfully removed as Democratic Election Commissioner effective December 10, 2008 and that Thomas Brown was not properly appointed to that office for a term commencing January 1, 2009 in his stead.
The authority relied upon by the County Legislature for Wood from his position: The County's Code of Ethics (Local Law 2 of 2008) prohibits an individual from concurrently holding the offices of Election Commissioner and "Chairman of any Political Party."*
In a memorandum dated December 10, 2008, the Chair of the County Legislature, John Daniels, declared the office of Election Commissioner vacant for the term ending December 31, 2008 because Wood then admittedly simultaneously held the offices of Election Commissioner and Chair of the County Democratic Committee.
As framed by Supreme Court Justice Phillip R. Rumsey, the issue to be resolved is whether the County Legislature may declare a vacancy in the office of Election Commissioner, upon an admission by the incumbent of dual office-holding in violation of a local ethics law without prosecution or conviction under local or State law effectively removing him or her from office.
The court commenced its analysis by noted that “State law that is applicable to this office supersedes any conflicting local legislation.”
Of relevance in this action was the fact that “In Public Officers Law §30, the State Legislature has specified the grounds by which a vacancy is created in a public office, including the office of election commissioner, and the enumerated grounds do not include violations of a local ethics law in respect to dual office-holding.” In addition, said Justice Rumsey, the State Legislature has provided that an election commissioner may be removed "by the governor for cause in the same manner as a sheriff," citing Election Law §3-200.
Concluding that “As applied to the office of election commissioner,” the Cortland County Code provision relied upon for removing Wood from his position as an Election Commissioner was inconsistent with, and is superseded by, these State statutes.
Accordingly, the court decided that the County Legislature lacked the authority to declare a vacancy as a result of an apparent violation of the prohibition against dual office holding under its local ethics law (without prosecution or conviction) in the office of Election Commissioner for the term of office ending December 31, 2008.
However, Wood’s term otherwise expired on December 31, 2008. Although he could not be reinstated to that term of office as it had expired, the court ruled that he was entitled to compensation for the remainder of his term ending December 31, 2008.
Justice Rumsey then explored the County Legislature’s authority to appoint an individual to the position of Election Commissioner.
* An element not discussed in this opinion is the standard set Ryan v Green, 58 NY 295, with respect to the issue of one person holding two public offices simultaneously. Except where prohibited by law, such dual-office holding is permitted unless they are "incompatible." What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices. For an example of dual-office holding barred by statute see Civil Service Law §27 which section prohibits holding certain public employment and serving as an officer of a political part simultaneously.
A “general release” of liability for an injury is not sufficient to insulate a governmental agency from liability resulting from its own negligence
Rigney v Ichabod Crane Cent. School Dist., 59 AD3d 842
It is quite common for a State or municipal entity to require that individuals using its facilities sign a waiver releasing it from liability in the event the individual suffers an injury while on the premises or while participating in an activity at the facility.
The lesson of the Rigney decision: a release that merely waive “any and all claims” is not enforceable with respect to injuries resulting from the State’s or the municipality’s own negligence unless it specifically advises the signor that the waiver extends to claims that might arise as the result of the governmental agency’s own negligence.
Michele Rigney enrolled in a class offered by the Ichabod Crane Central School District’s adult education program. Rigney paid a fee and executing a release in which she agreed to hold the Ichabod Crane Central School District harmless for all claims arising in any way out of her participation in the class.
Rigney was injured when, while following the directions of the instructor to retrieve exercise equipment from a storage closet, several weighted bars fell onto her back.
In response to her lawsuit recover for her injuries, the District moved for summary judgment on the strength of Rigney’s signed release.
Although Supreme Court granted the District’s motion, the Appellate Division reversed and reinstated Rigney’s lawsuit.
The court said that it agreed with Rigney’s argument that the release was unenforceable because it did not specifically state that she was agreeing to exempt the District from liability arising out of its own negligence.
In the words of the Appellate Division, although "the law grudgingly accepts the proposition that [the District] may contract away [its] liability for negligently caused injuries, [it] may do so only on the condition that [its] intention [is] expressed clearly and in 'unequivocal terms,'" citing Gross v Sweet, 49 NY2d 102.
Releases such as the one signed by Rigney, said the court, that merely waive any and all claims arising in the future cannot be enforced because they fail to advise the signor that the waiver extends to claims that might arise from a defendant's own negligence.
After recommending termination, hearing officer suggests that under the circumstances, the appointing authority could impose a lesser penalty
Department of Sanitation v Vincent Brooks and Michael Newsome, OATH Index Nos. 559/09 & 560/09
OATH Administrative Law Judge Faye Lewis found two sanitation workers violated the department's trade waste order when they collected construction debris from a house, without obtaining prior permission from a supervisor.
The Trade Waste Order defines “trade waste” as “any material originating from the alteration, construction, repair or maintenance of a residential building (“work”), which was performed for a fee, by a contractor, or any person engaged in the home improvement business (“contractor”).”
In contrast, Sanitation Department employees are permitted to service a stop adjoining a residential building which contains up to six “bags, boxes, bundles and cans of construction debris that may be considered trade waste” if the work is not being performed by a contractor.
The decision indicates that “there was no evidence of paid construction work at the house.”
Lewis found that the workers had taken a Sanitation Department truck outside their assigned area and used it to collect debris as a favor to a cousin of one of the workers without permission.
Although the ALJ recommended termination, he also said:
My recommendation does not, of course, preclude the Department from agreeing to a post-trial settlement [such as a] trade waste probation and a suspension, or any other settlement which it might deem appropriate. A settlement of this nature seems particularly appropriate for Newsome. Newsome, unlike Brooks, has no prior disciplinary record.
Eligibility for Workers’ Compensation benefits depends on whether a work related injury was the reason why an individual retired
Matter of Hayes v Nassau County Police Dept., 59 AD3d 831
Following his involvement in two work-related car accidents, Ronald J. Hayes retired from employment as a police officer with the Nassau County Police Department. At the time he was receiving workers’ compensation benefits that were awarded in separate workers' compensation cases related to injuries he had sustained on the job.
In the course of reviewing his case, Workers’ Compensation approved surgery recommended by his physician. When Hayes sought compensation for lost time from work, a hearing was held to determine whether he had “voluntarily withdrew from the labor force” when he retired. If his retirement was found to be a “voluntary withdrawal” from the labor force, he would not be eligible for such compensation.
Ultimately the Workers’ Compensation Administrative Law Judge ruled that Hayes’ “withdrawal from the labor force was not voluntary.”
The Workers' Compensation Board, however, reversed, holding that Hayes’ retirement was voluntary based on its finding that Hayes’ “work-related injury did not cause or contribute to his decision to retire.”
Hayes appealed and the Appellate Division vacated the Board’s determination on the grounds that its decision could not be sustained ”when it is clearly based on incorrect facts or an inaccurate reading of the record.” The court remanded the matter to the Board for its reconsideration of the evidence in the record.
Here, said the court, the issue to be determined whether Hayes' medical condition “impacted his decision to retire,” an issue distinct from the Board's previous decision that he required surgery.Accordingly, the Board was directed to reconsider the issue of the “voluntariness of [Hayes’] retirement” in light of the testimony of his physician set out in the record.
February 23, 2010
Ost v Town of Woodstock, 251 A.D.2d 724
One of the issues raised in Ost was the admission of testimony concerning a polygraph [lie-detector] test in the course of a Section 75 disciplinary hearing.
Shawn Ost, a Town of Woodstock police officer, was terminated from his position for allegedly using his police vehicle to "give a young civilian woman a ride to her home outside the geographical boundaries of the Town, without authorization and subjected her to unwanted sexual contact."
Ost argued that the disciplinary hearing "was tainted by the admission of testimony regarding a polygraph test" of the [young woman] involved in the incident.
The Appellate Division said that such testimony may be considered in a Section 75 disciplinary hearing "if it is otherwise material and relevant, so long as there is ... as there was in this instance ... substantial evidence of the reliability of the machine and the qualifications of the operator."
As to Ost's complaint that "he was not offered an opportunity to take a similar test," the court commented that although Ost indicated that he would be willing to submit to such an examination, he never asked for a test to be scheduled or take any steps to arrange for one on his own.
Motell v Napolitano, 186 AD2d 989, is another case involving the use of evidence resulting from a polygraph test. In Motell the Appellate Division ruled that the disciplinary hearing officer did not err as a result of allowing the results of the polygraph test to be introduced as evidence.
The court said that where the record contains substantial evidence of the reliability of the polygraph machine used and the qualifications of the person administering the test, evidence of the results of such an examination may be considered by the hearing officer in a disciplinary proceeding.
Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security position
Allmond v. Akal Security Inc., No. 07-15561, USCA 11th Circuit
Wilbur Allmond sued Akal Security Inc. after it terminated him from his position as a security guard after he failed to pass the required hearing examination.
Akal had a contract with the Federal Marshals Service to provide security officers at federal courthouses and had assigned as a security officer at the federal courthouse in Columbus, Georgia.
The Marshals Service requires security officers to pass a hearing test without the help of a hearing aid. As a new security-officer applicant, Allmond was required to take a preemployment medical examination, which included a hearing test subject to the hearing-aid ban.
Although Allmond did not use a hearing aid before or during his employment with Akal Security, he was required to submit to additional testing and submit additional medical information.
Ultimately he was disqualified due to his “decreased ability to distinguish speech in the absence of background noise . . . .” The Marshals Service notified Akal Security of the situation; and Akal Security, as it was required to do under its contract with the Marshals Service, terminated Allmond’s employment.
The Circuit Court of Appeals reviewed the hearing-aid ban for job-relatedness and business necessity.
Job-relatedness is used in analyzing the questions or subject matter contained in a test or criteria used by an employer in making hiring or promotional decisions.” In contrast, business necessity “is larger in scope and analyzes whether there is a business reason that makes necessary the use by an employer of a test or criteria in hiring or promotional decision making.”
In this instance the court found that the hearing-aid ban met both criteria.
As a result a study, the government concluded that security officers must possess a certain level of unaided hearing to perform those functions adequately at all times. To guarantee that all security officers have that required hearing, the Marshals Service -- at the recommendation of the doctor conducting the study -- adopted the hearing-aid ban.
The hearing-aid ban is also consistent with business necessity. Because hearing aids may malfunction, break, or become dislodged, the Marshals Service adopted the ban to ensure that all officers can perform their jobs safely and effectively in the event they must rely on their unaided hearing.
The decision noted that Allmond characterized this justification “as based on events that may never occur.” The Circuit Court said that “neither the ADA nor the Rehabilitation Act requires employers to forgo a qualification standard “until a perceived threat becomes real or questionable behavior results in injuries,” citing Watson v. City of Miami Beach, 177 F.3d 932.
Concluding that Ajal had successfully presented an affirmative business-necessity defense, the court dismissed Allmond’s appeal.
Twenty-day statute of limitations for filing an appeal with the Unemployment Insurance Board strictly construed
Matter of Pascarella v New York State Thruway Auth., 59 AD3d 835
An agency Administrative Law Judge [ALJ] reversed an initial determination that denied former New York State Thruway employee James J. Pascarella’s application for unemployment insurance benefits. The ALJ’s decision approving Pascarella’s claim for benefits included a statement that a party had 20 days to file an appeal challenging the determination.
The Thruway Authority filed an appeal, but it was dismissed on the grounds that it was untimely.
In the course of a hearing to determine if the Thruway’s appeal was timely, the Thruway’s representatives admitted the Thruway received the ALJ's decision shortly after it was mailed but testified that the Thruway’s delay in seeking to appeal was due to its mistaken belief that it, as the employer, had 30 days, within which to do so.
The Unemployment Insurance Appeal Board dismissed the Thruway’s appeal as untimely.
The Appellate Division affirmed the Board’s determination pointing out that Labor Law §621(1) requires that an appeal to the Board from an ALJ's ruling must be made within 20 days of the date the decision is mailed or personally delivered to the party wishing to appeal.
The court explained that statutory time limits are strictly construed and neither the fact that the party appealing failed to read or understand that part of the ALJ's decision indicating the time period for filing a timely appeal nor its mistaken belief that it had more time to appeal is not a reasonable excuse for failing to comply with the statutory time period provided to do so.
Employee must show a causal relationship between injury and employment to be eligible for workers’ compensation benefits
Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890
North Syracuse CSD school bus attendant Diane Norton sustained a compensable injury and awarded her workers' compensation benefits. North Syracuse, a self-insurer for workers’ compensation, controverted [objected to] the claim.*
The Workers' Compensation Board sustained a Workers’ Compensation Law Judge’s ruling finding that Norton a causal relationship between the nature of Norton’s employment and her disability. The District appealed the Board’s determination.
The Appellate Division, noting that "It is axiomatic that a claimant [seeking workers’ compensation benefits] bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence," said that "a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis."
In this case the Appellate Division concluded that Norton had not met her burden of demonstrating a causal relationship between her employment and her disability.
A medical expert, Brett Greenky, a board-certified orthopedic surgeon, testified how a fracture such as the one Norton sustained can occur and stated that her report of injury was "[p]otentially consistent" with the fracture that she sustained. Dr Greenky, however, also testified, "I don't have an opinion about when it happened and how it happened."
As Dr. Greenky's medical testimony “falls short of the required degree of medical proof,” the Appellate Division ruled that the Board's determination lacked a rational basis and was not supported by substantial evidence. The court reversed the Board’s ruling and remanded the matter to it “for further proceedings not inconsistent with this Court's decision.”
* Section 25.2 of the Workers’ Compensation Law, in pertinent part, provides: “In case the employer decides to controvert the right to compensation, it shall, either on or before the eighteenth day after disability or within ten days after it has knowledge of the alleged accident, whichever period is the greater, file a notice with the chair, on a form prescribed by the chair, that compensation is not being paid, giving the name of the claimant, name of the employer, date of the alleged accident and the reason why compensation is not being paid.
Arbitrator finds employee guilty of disciplinary charges filed against him; offers employer a choice of penalties to be imposed
Matter of Hansen v New York State Dept. of Correctional Servs., 59 AD3d 903
NYS Correction Officer Ronald Hansen was served with two notices of discipline. One charged him with “failing to obey a direct order;” the second him with “failing to report to duty.”
Hansen filed a disciplinary grievance and the arbitrator ruled that he was guilty of misconduct for failing to report to duty. As to a penalty, the arbitrator said that the appointing authority could either  terminate Hansen or  continue him in service and give a written reprimand and fine him two months of pay.
Hansen appealed the arbitrator’s finding as to guilt and, in addition, challenged the award’s providing for “a choice between two specific sanctions” that Corrections could impose.
Supreme Court confirmed that portion of the arbitration award that found Hansen guilty of failing to report for duty but agreed with him that “the penalty was indefinite and failed to resolve an issue in controversy by providing DOCS with the option as to the penalty to be imposed for the violation.”
Noting that Hansen neither claimed that either penalty was inappropriate nor an abuse of the arbitrator's authority, the Appellate Division reversed Supreme Court’s holding that the “penalty was indefinite.”
Rather, said the court, each penalty as proposed was final and definite and provided the parties with the arbitrator's determination as to what would constitute an appropriate penalty for the misconduct involved. Offering a choice of two definite penalties does not render the final award indefinite.
Citing Matter of Meisels v Uhr, 79 NY2d 526, among other decisions, the Appellate Division said that an award that permits the prevailing party to select from between alternatives lacks finality and definiteness and is subject to vacatur "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."
Rather than set parameters from within which Corrections could choose an appropriate penalty, the award offered Corrections the choice between two definite penalties, either of which would be an appropriate response to the misconduct involved.
February 22, 2010
Public Officers Law Section 30.1(e)
In some instances it is not necessary for the appointing authority to hold a disciplinary hearing in order to terminate an individual. Section 30.1(e) of the Public Officers Law, in pertinent part, provides that a public officer shall be removed from office upon “… his [or her] conviction of a felony, or a crime involving a violation of his [or her] oath of office….”
Typically such termination is “by operation of law” and all that is required is the appointing authority determination that Section 30.1(e) applies with respect to the individual involved.
In Bowman v Kerik, 271 A.D.2d 225, the court said that Section 30.1(e) of the Public Officers Law provides that a public office becomes vacant upon the conviction of the incumbent "of a felony, or a crime involving a violation of his oath of office." The significance of this provision is that no "pre-termination hearing" that may otherwise be mandated by law such as Section 75 of the Civil Service Law or a Taylor Law disciplinary grievance procedure is required to effect the termination.
As the plea of guilty or nolo contender* has the same effect as a conviction, Section 30.1(e) of the Public Officers Law is operative respect to declaring the position vacant in the event the public enters such a plea with respect to "of a felony, or a crime involving a violation of his oath of office."
As an example, a trustee of the State University pleaded guilty of attempted grand larceny in the fourth degree, a Class A misdemeanor. Holding that the trustee was a public officer, the Attorney General said that her conviction based on her plea of guilty would automatically result in her removal from officer "if the misdemeanor involved a violation of her oath of office." In this instance he decided that the guilty plea to the misdemeanor resulted in the vacating of the position "by operation of law." [Formal opinions of the Attorney General, 97-F7].
In the event an individual is convicted of a crime but his or her position is not vacated pursuant to Section 30.1.e, he or she may be served with disciplinary charges involving the same event or events. However, as his or her conviction is "res judicata"** -- the only issue to be resolved in the administrative disciplinary proceeding is the penalty to be imposed, which penalty must be consistent with the Pell doctrine [Matter of Pell, 34 NY2d 222].
As the court held in Kelly v Levin, 440 NYS2d 424, if a jury finds a person guilty beyond a reasonable doubt of, say, larceny, or the individual enters a plea of guilty to the larceny, a disciplinary hearing officer need hear no other evidence to render a verdict of guilty regarding a parallel charge of theft in an administrative disciplinary proceeding.
Further, a finding of “not guilty” in a criminal proceeding does not prevent the appointing authority from going forward with an administrative disciplinary hearing. Although and individual may have been be found not guilty beyond a reasonable doubt in a criminal action, he or she may still be found guilty of parallel charges in an administrative disciplinary proceeding under the standard of substantial evidence or preponderance of the evidence tests used in such disciplinary proceedings.
On a related point, the appointing authority has no obligation to postpone taking administrative disciplinary action against an employee even if a county District Attorney requests that the administrative disciplinary action be postponed until the criminal action is completed. This was the point made by the court in Levine v New York City Transit Authority, 70 AD2d 900, affirmed 49 NY2d 747.
NB: Section 30.1(e) also sets out proceeds for the reinstatement of a public officer, other than to a public office to which he or she had been elected, if the conviction was the sole basis for the position being declared vacant and such conviction is overturned on appeal.
* A plea in a criminal case by which the defendant answers the charges made in the indictment by declining to dispute or admit the fact of his or her guilt.
** "The thing has been judged" meaning that the issue before the tribunal -- i.e., guilt of the charge -- had already been decided at an earlier tribunal of competent jurisdiction.
An individual whose rights could be affected by a decision by the Commissioner of Education must be named as a necessary party to the action
Appeal of Douglas Williams from action of the Board of Education of the North Colonie Central School District, Decisions of the Commissioner of Education, Decision No. 15,879
Douglas Williams challenged the determination of the Board of Education of the North Colonie Central School District to reinstate Timothy Bonk as its Director of Facilities following the completion of his “disciplinary suspension.”
Timothy Bonk, the district’s Director of Facilities, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He and the District agreed to a “last chance” settlement of the charges, which provided for Mr. Bonk’s suspension for a period of time.
Objecting to the school board’s decision concerning Bonk’s employment by the school district made at a public meeting of the board, Williams asked the Commissioner to investigate a number of issues in an effort to have the Commissioner nullify the board’s action.
The Commissioner dismissed Williams’ appeal as untimely as appeal was filed more than 30 days after the board made its decision without explanation for the delay.
However, the Commissioner also noted that had the appeal been timely filed it would have been dismissed on other procedural grounds. Williams had failed to join a necessary party to the appeal, in this case Timothy Bonk.
If an individual’s rights would be adversely affected by a determination of an appeal, that individual is a necessary party and must be joined in the action. Joinder, said the Commissioner, requires that the individual be clearly named as a respondent in the caption of the appeal and served with a copy of the notice of petition and petition in order to inform the individual of the pending action and that he or she may respond to the petition and enter a defense.
As Bonk’s rights could be adversely affected by the Commissioner's determination on the merits of Williams' appeal, he was a necessary party in this action.
A village board is not bound absent its adoption of a resolution providing for the benefit claimed to have agreed upon orally
Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662
In April 1957, Garrigan began employment as a Village of Malverne police officer. The collective bargaining agreement between the Village and the PBA provided benefits including, upon termination from employment, payment for unused vacation, sick, and terminal leave. In 1973 the Village appointed Garrigan as its Chief of Police. Although Garrigan remained a member of the PBA member during his tenure as Chief of Police, the PBA contract specifically excluded him, as Chief of Police, from coverage under the contract.
Garrigan alleged that prior to his appointment as Chief of Police, he and the then-Village Mayor orally agreed that the terms of his employment as Chief of Police would mirror the terms set forth in the PBA contract. However, such an alleged agreement was never reduced to writing, and the Village Board never adopted a resolution conforming to the alleged oral agreement.
Upon his applying for retirement, Garrigan requesting payment from the Village for 51¾ days of unused vacation, 874.5 days of unused sick leave, and 223.5 days of terminal leave. Retiring effective November 27, 2001, Garrigan initiated a lawsuit after the Village failed to honor his request for payment for the unused vacation, sick, and terminal leave.*
Ultimately the matter went to trial and the jury decided that Garrigan was entitled to recover for unused vacation, sick, and terminal leave pursuant to General Municipal Law §207-m and for unused vacation, sick, and terminal leave that accrued to him pursuant to a contract between the Police Benevolent Association.
The Appellate Division said that Supreme Court erred in allowing Garrigan to recover for unused vacation, sick, and terminal leave pursuant to GML §207-m.
In the words of the Appellate Division, “Even accepting the jury's determination that such oral contract existed, such contract was insufficient to support [Garrigan’s] claims since, absent a resolution from the Village Board reducing the oral contract to writing, the Village cannot be bound.”
* Prior to issuing this decision, the Appellate Division considered various motions [see Garrigan v Incorporated Vil. of Malverne, 12 AD3d 400 [Garrigan 1] and Garrigan v Incorporated Vil. of Malverne, 12 AD3d 400 [Garrigan 2].
Failure to appeal an administrative law judges ruling precludes the reopening of the issue in a subsequent proceeding
Matter of Cipriano v Onondaga County Corrections, 60 AD3d 1120
Onondaga County Assistant Corrections Commissioner Peter A. Cipriano suffered a heart attack and underwent coronary bypass surgery. Two years later he was awarded workers' compensation benefits.
A year later Cipriano cease working due to stress-related angina episodes and was awarded compensation benefits for that condition as well.
When Cipriano subsequently underwent treatment for coronary artery disease, Onondaga County objected to paying for the treatment contending that it was not causally related to his employment. A Workers' Compensation Law Judge, rejecting Onondaga’s theory and determined that Cipriano sustained a permanent total disability, which decision was affirmed by the Workers' Compensation Board.
Onondaga County and its workers' compensation carrier appealed the Board’s decision. The Appellate Division affirmed the Board’s ruling.
The court noted that although a Workers' Compensation Law Judge had earlier determined that Cipriano's coronary artery disease was an occupational disease, it “failed to seek Board review of that decision.” Thus, said the court, its present challenge to causation is not properly before us.
Rejecting Onondaga’s appeal, the Appellate Division said that “As a final matter, we are satisfied that the Board properly reviewed and weighed the evidence and did not apply an incorrect standard in reaching its decision.”
Employee organization charged employer had “direct dealing” with unit members and refused to negotiate the impact of an assessment plan
Dutchess United Educators and Dutchess Community College - PERB determinations U-27107, U-27371
The Public Employment Relations Board affirmed the decision of an ALJ dismissing two charges filed by the Dutchess United Educators.
The first charge alleged that the Dutchess Community College violated §209-a(d) of the Act by failing to negotiate, upon a demand, the impact of an academic assessment plan and for allegedly engaging in direct dealing with bargaining unit members.
The second charge alleged additional acts of direct dealing in violation of §§209-a.1(a) and (d) of the Act. The Board ruled that the ALJ had the authority to dismiss the direct dealing allegations based upon the insufficiency of the allegations in the charges. Following a review of the record, the Board found that a reasonable inference cannot be drawn from the evidence that Dutchess Community College negotiated with or attempted to negotiate directly with members of the bargaining unit aimed at reaching an agreement.
The Board reiterated that the duty to negotiate with an exclusive representative does not, in general, prohibit the employer from disseminating information and documents to members of a negotiation unit so long as it is not aimed at impeding negotiations or subverting the fundamental rights of employees to organization and representation under the Act.
In affirming the dismissal of the alleged failure to negotiate the impact of the academic assessment plan, the Board found that the short delay in commencing impact negotiations, following receipt of the demand, did not constitute a violation of §209-a.1(d) of the Act.
Finally, the Board upheld the ALJ's exclusion of evidence related to what transpired during the two impact negotiations sessions following the initial delay because it was outside the scope of the charge.
February 19, 2010
Using a CBA provision allowing an arbitrator to impose a different penalty than is otherwise mandated by the CBA is for the arbitrator to decide
Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 2010 NY Slip Op 01378, decided on February 18, 2010, Court of Appeals
The New York City Transit Authority (TA) alleged that one of its Conductors assaulted a member of the public on a subway platform and filed disciplinary charges seeking the termination of the employee.
The relevant part of the collective bargaining agreement controlling such disciplinary actions provided that "If there is presented to the [arbitrator] for decision any charge which, if proved in Court, would constitute a felony, or any charge involving assault, … the question to be determined by the [arbitrator] shall be with respect to the fact of such conduct. Where such charge is sustained by the [arbitrator], the action by the Authority, based thereon, shall be affirmed and sustained by the [arbitrator] except if there is presented to the [arbitrator] credible evidence that the action by the Authority is clearly excessive in light of the employee's record and past precedent in similar cases. It is understood by the parties that this exception will be used rarely and only to prevent a clear injustice."
Although the arbitrator found the employee guilty of the charges, the penalty sought by the Authority, dismissal, the arbitrator modified the penalty to “reinstatement without back pay.”
The arbitrator explained that the although the Transit Authority had presented as "past precedent" five prior arbitration awards where other arbitrators had upheld termination decisions, he found that there were “substantive differences between this case, and those relied upon by the Authority as 'precedent' [that] render the [employee] worthy of the 'exception', regarding which arbitrators have judgmental discretion under the Agreement provision cited [above]."
The Transit Authority filed an Article 75 petition in an effort to have the arbitration award vacated. Supreme Court concluded that the arbitrator had exceeded his power in modifying the penalty and granted the Transit Authority's petition and the Appellate Division, by a 3 to 2 decision, affirmed the lower court’s determination [60 AD3d 1]. The Union appealed “as a matter of right.”
The Court of Appeals said that of the three "narrow grounds" that may support a court’s vacating an arbitrator's award are that  the award violated public policy;  is irrational; or  "clearly exceeds a specifically enumerated limitation on the arbitrator's power" only the last – that the arbitrator exceeded his power “ was cited by the Authority in support of affirming the lower courts’ rulings.
The Court of Appeals rejected the Authority’s argument, noting that under the relevant provision of the collective bargaining agreement, after an arbitrator in a case involving assault allegations determines as a matter of fact that an assault did occur, “the applicability of the provision's exception is a question uniquely within the arbitrator's power to decide.”*
The court said that were it to vacate the arbitrator's award on the ground advanced by the Transit Authority, such action would not involve a determination that the arbitrator had exceeded his power but rather would entail the kind of "inapt flirtation with the merits, or ... inappropriate use of the judicial scalpel to split the hairs that mark the perimeters of the contractual provisions" that "[h]istory, legislation, and experience," not to mention our case law, dictate that we refrain from” doing.
In this case, said the court, if an assault did occur, the arbitrator was then to sustain the Transit Authority's action the exercise of the arbitrator's discretion was warranted under the provision's exception. After finding that an assault did in fact occur, the arbitrator considered whether an application of the exception was warranted.” This, said the court, was the very question submitted to arbitration under the CBA and the arbitrator here concluded that the exception applied.
Citing United Federation of Teachers, 1 NY3d at 83, the court said that “Even when such ‘interpretations and factual findings appear highly debatable’ - and we make no comment here on the merits of the arbitrator's decision in this matter – ‘whether we agree with the arbitrator is beside the point.’”
Accordingly, the Court of Appeals reversed the Appellate Division’s decision and dismissed the Authority’s petition.
* Judge Smith wrote a dissenting opinion in which Judge Read concurred.
GML §207-c proposal ruled a non-mandatorily subject of collective bargaining, as it did not permit employer to make the initial benefit determination
Port Washington Police District and Port Washington Police Benevolent Association, Inc
Decisions of PERB Administrative Law Judge Case No. U27439 [decided with U27454]
The ALJ sustained the Police District's charge (Case No. U27439) alleging that the PBA violated §209-a.2(b) of the Act when it submitted three nonmandatorily negotiable demands to binding, interest arbitration. A proposal to make permanent a temporary twelve-hour tour of duty agreement was found to be nonmandatorily negotiable because it includes a minimum staffing and other provisions that interfere with the District's ability to determine staffing levels.
A demand proposing a procedure to be followed by employees when filing claims for benefits under GML §207-c was found to be nonmandatorily negotiable because it did not allow the District to make the initial benefit determination. A proposal seeking to allow unit employees to retain all earned compensation if they are promoted to positions outside the PBA negotiating unit was found to be nonmandatory because it seeks to determine the terms and conditions of employment of nonunit employees.
The ALJ ordered the PBA to withdraw the nonmandatory proposals from interest arbitration.
The ALJ also dismissed the PBA's charge (Case No. U27454), which alleged that the District violated §209-a.1(d) of the Act by submitting a nonmandatorily negotiable proposal to interest arbitration, because the District had withdrawn the challenged proposal.
For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://section207.blogspot.com/2009/03/v-behaviorurldefaultvml-o.html
A “special relationship” tempers a municipality’s immunity from liability for discretionary actions taken by its agents
Alvarado v City of New York, 60 AD3d 427
Lenora Alva alleged that while acting as an interpreter for the New York City Police Department during the course of an investigation into a complaint of domestic violence, she was assaulted by a knife-wielding individual who was involved in a dispute with his girlfriend.
Alva sued the City, contending that that the injuries she sustained during the attack were the result of the failure of the police to protect her from a man who was known to be violent and dangerous.
Supreme Court, Bronx County, granted the Police Department’s motion to dismiss Alva’s complaint. The Appellate Division unanimously reversed Justice Walker’s decision, commenting:
"[M]unicipalities generally enjoy immunity from liability for discretionary activities they undertake through their agents, except when plaintiffs establish a special relationship' with the municipality" (Kovit v Estate of Hallums, 4 NY3d 499.”
Concluding that Alva sufficiently set forth the elements of a "special relationship" the Appellate Division said that her complaint was improperly dismissed.
Alva, said the court, was not simply a member of the public at large, but was a translator whose services had been requested by the police department to aid officers in the investigation of a complaint of domestic violence.
“Under these circumstances, the police department assumed an affirmative duty to avoid placing plaintiff in a dangerous position and at the mercy of a person the officers suspected was capable of violence.”
Citing Mastroianni v County of Suffolk, 91 NY2d 198, the Appellate Division concluded that Alva “had a right to expect that she would receive protection from the individual suspected of domestic violence, thereby satisfying the element of justifiable reliance on the municipality's affirmative undertaking.”
Employee terminated after refusing to sign a statement acknowledging a “verbal warning” given to her by her supervisor
Matter of Rey-Calderon v Commissioner of Labor, 60 AD3d 1124
Wanda Rey-Calderon, a school bus dispatcher, for the employer reported late to work and her supervisor gave her a verbal warning and a written acknowledgment of the verbal warning for her to sign. Rey-Caleron refused to sign the written acknowledgment and she was discharged from her position.
When she applied for unemployment insurance benefits, the Unemployment Insurance Appeal Board ruled that she was disqualified from receiving such benefits because her employment was terminated due to her misconduct. Rey-Calderon appealed the Board’s determination based on her “differing account” of what led to her termination.
The Appellate Division sustained the Board's decision, holding that "The question of whether a claimant has engaged in disqualifying misconduct presents a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence."
In this instance the court found that, among other things, that testimony that Rey-Calderon had repeatedly refused to sign the warning, and that a heated exchange had occurred regarding her refusal, constituted substantial evidence in support of the Board's determination.
The differing accounts of what transpired on the morning in question, said the Appellate Division, presented a credibility issue for the Board, rather than the court, to resolve.
The “notice of claim” required Education Law § 3813 must be more than an e-mail or an unverified [not sworn to] statement
Gastman v Department of Educ. of City of New York, 60 AD3d 444
According to the decision, Gastman had failed to file a timely notice of claim with the New York City Department of Education as required by Education Law §3813. The unexcused failure to file a timely notice is fatal to proceeding with such a complaint.
In this instance Supreme Court ruled that Gastman’s “unverified letters and emails to various Department of Education personnel, ‘each addressing different aspects of her complaints,’ did not constitute a notice of claim” within the meaning of the Education Law.
The Appellate Division agreed and dismissed Gastman’s appeal.
Further, said the Appellate Division, Gastman’s application for leave to file a late notice of claim was submitted after the one-year statute of limitations had expired and thus it also must be denied as untimely, citing Education Law §3813[2-b].
Administrative Law Judge holds that an employee's failure to report for drug testing must be treated as the equivalent of failing a drug test
Department of Sanitation and Henry Morrison, OATH Index No. 894/09
OATH Administrative Law Judge Kara Miller recommended termination for a sanitation worker, Henry Morrison, after finding that he was guilty of failing to be at home after reporting sick on two occasions and also failing to report for a random drug test.
As to his failing to report for the drug test, Morrison’s defense: he was ill and could not travel to the location where the test was to be administered.
Judge Miller, however, found that there was no reason Morrison could not have reported to the test site as scheduled for the drug test, commenting that an employee's refusal to report for drug testing must be treated as the equivalent of failing a drug test.
However, Judge Miller dismissed one of the charges filed against Morrison: a charge that Morrison failed to report to the clinic on the second day of taking sick leave. Although the Department had revised its rule and currently required employees subject to its provisions to report to the Department’s clinic on the second day of sick leave, it was unable to demonstrate that Morrison had receive notice of the rule change.
The Department’s former rule required such employee to report to the Department’s clinic no later than forty-eight hours after requesting medical leave and Morrison had complied with that provision contending that he was unaware of the rule change.
As to the recommended penalty, dismissal, Judge Miller said that she had “requested and reviewed a copy of [Morrison’s] personnel abstract in order to make an appropriate penalty recommendation. She noted that Morrison had “an extensive disciplinary history,” including being found guilty of charges involving having a suspended license; absences without authorization and a failure to report to the clinic; failing to be home while on sick leave on two occasions and a failure to report an arrest.
Judge Miller said that Morrison had also be found guilty of charges involving fighting with a co-worker; insubordination and received a reprimand for fighting with a co-worker; absences without authorization; lateness; and violating the Department’s drug policy on two occasions.
February 18, 2010
Employee charged with misconduct alleged to have hired professional actors to testify on his behalf during a formal disciplinary hearing
Source: Press Release – Office of the Attorney General, February 16, 2010
Cautioning that criminal charges now pending against William Fals-Stewart are merely accusations and that "he is presumed innocent until and unless proven guilty," Attorney General Andrew Cuomo alleged that Fals-Stewart, a former SUNY at Buffalo researcher, hired actors to testify on his behalf during a disciplinary hearing.*
In September 2004, Fals-Stewart was accused of scientific misconduct for allegedly fabricating data in federally funded studies he was undertaking as an employee at the State University of New York at Buffalo and the Research Institute on Addictions.
The Attorney General’s press release said that three witnesses called by Fals-Stewart testified by telephone because Fals-Stewart claimed they were out of town. In reality they were actors who thought they were taking part in a mock trial. Fals-Stewart paid the actors to testify. He also provided them with scripts to use during the proceedings "that were riddled with inaccuracies regarding his research."
The criminal charges allege that Fals-Steward hired professional actors to portray real people who were familiar with his projects to testify on his behalf during an administrative disciplinary hearing. Fals-Stewart was exonerated of these charges of misconduct because of the false testimonies provided by the actors.
Significantly, the actors had been previously employed by Fals-Stewart to participate in legitimate training videos. In this instance Fals-Steward told them that they would be performing in a mock trial training exercise. The actors were not aware that they were actually testifying at a real administrative disciplinary hearing, nor did they know they were, in fact, impersonating "real-life" individuals rather than "role-playing" fictional characters.
Following the dismissal of the disciplinary charges, Fals-Steward claimed that the allegations of misconduct had tarnished his reputation and he sued the University, seeking $4 million in damages.**
In the course of defending the University and the State in the court action initiated by Fals-Stewart, the Attorney General conducted an investigation of the claims filed against the University and it was in the course of this investigation that the alleged fraud was discovered.
A criminal investigation followed. As a result Fals-Stewart was arrested and charged with Attempted Grand Larceny in the First Degree (a Class C felony); three counts of Perjury in the First Degree (a Class D felony); three counts of Identity Theft in the First Degree (a Class D felony); two counts of Offering a False Instrument for Filing in the First Degree (a Class E felony); and three counts of Falsifying Business Records in the First Degree (a Class E felony).
* A sad coda: The Campus Times Blog dated February 25, 2010, reported the “untimely death of ex-UR professor William Fals-Stewart.”
** The AG's press release reports that Fals-Stewart has withdrawn his lawsuit seeking damages.
Federal assistance for the continuation of employer-provided health insurance under COBRA in the event of a layoff extended
Source: Employee Benefits Security Administration
If an individual or a family member has lost employment, the American Recovery and Reinvestment Act of 2009 (ARRA) may make it possible for the individual or family member to keep employment-related health coverage by providing financial assistance to eligible individuals.
The Act provides for premium assistance for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA.
The premium assistance is also available for continuation coverage under certain State laws.
For coverage periods beginning on or after February 17, 2009, assistance eligible individuals pay only 35% of their continuation coverage premiums to the plan for the first fifteen months. The remaining 65% is reimbursed to the plan, employer, or health insurance issuer through a payroll tax credit.*
The Department of Defense Appropriations Act, 2010 (2010 DOD Act) extended the eligibility period for the COBRA premium reduction from December 31, 2009 to February 28, 2010 and the maximum period for receiving the subsidy from nine to fifteen months.
To be considered an "Assistance Eligible Individual" and receive reduced premiums the applicant must satisfy all of the following requirements:
1. Must have a continuation coverage election opportunity related to an involuntary termination of employment that occurred at any time from September 1, 2008 through February 28, 2010;
2. Must elect the coverage (within the appropriate timeframes);
3. Must NOT be eligible for Medicare; AND
4. Must NOT be eligible for coverage under any other group health plan, such as a plan sponsored by a successor employer or a spouse's employer.
Additional information and application forms are available at the Employee Benefits Security Administration’s web site at http://www.dol.gov/ebsa/COBRA/main.html
* Click on An Employer's Guide to Health Continuation Coverage Under COBRA for information concerning “payroll tax credit.”
Supervisor’s comments concerning an employee’s job performance protected by a qualified privilege absent a showing of malice
Bayer v City of New York, 60 AD3d 713
Hank Bayer, who was employed as a plumber by the New York City Department of Education, sued the City, the Department of Education and his supervisor, Nunzio Piro, alleging, that Piro defamed him and repeatedly accused him of misconduct and insubordination. He asked to be awarded damages for “intentional infliction of emotional distress and defamation.” Supreme Court dismissed Bayer’s complaint.
The Appellate Division affirmed the lower court’s granting the defendants’ motion for summary judgment, holding that the City, the Department and Piro had “established their prima facie entitlement to [summary] judgment as a matter of law.”
The court said the alleged defamatory statement made by Piro was protected by a qualified privilege since Piro made it to other persons who had an interest in his assessment of Bayer’s work behavior.*
To overcome Piro’s qualified privilege Bayer was required to show that the statement was solely motivated by malice. The Appellate Division said that Bayer failed to do so.
In any event, said the court, Bayer “failed to raise a triable issue of fact as to whether Piro's conduct was so extreme, outrageous, and beyond the bounds of human decency as to constitute the tort of intentional infliction of emotional distress, citing Schell v Nassau County Dept. of Health, 237 AD2d 423.
* As a general rule, public officials may claim a qualified immunity with respect to statements concerning the individual made to other public officials in the course of their performing their official duties that the individual claims are defamatory. In addition, courts have held that the doctrine of qualified immunity protects government officials from personal liability if their conduct either: (1) “did not violate clearly established rights of which a reasonable person would have known,” or (2) “it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.”
An individual may not withdraw or rescind his or her resignation without the consent of the appointing authority
State University Police Officer Robert Lewis submitted his written resignation from his position at the State University of New York Downstate Medical Center [DMC]. When DMC declined to permit him to withdraw his resignation and be reinstated to his former position*, he commenced a lawsuit in an effort to obtain a court order directing his reinstatement.
Supreme Court granted Lewis’ petition, annulled DMC’s determination, and directed that it reinstate Lewis to his former position “with back pay and benefits."
DMC appealed and the Appellate Division vacated the Supreme Court’s ruling, pointing out that under the relevant Rules of the New York State Civil Service Commission, once the [written] resignation is delivered to the appointing authority, "it may be withdrawn only at the discretion of the appointing authority."
Finding that the “record demonstrates that the determination denying [Lewis’] request for reinstatement was neither arbitrary and capricious nor an abuse of discretion, the Appellate Division said that “Supreme Court should have denied [Lewis’] petition.”
Every so often an employee, after submitting his or her resignation, will attempt to withdraw or rescind the resignation claiming it had been coerced or obtained under duress such as being threatened with disciplinary action if the employee refuses to resign from his or her position.
This was the claim made by an individual who, in the presence of a union representative, was told that unless he submitted his resignation formal disciplinary charges would be filed against him.
Although allowed to confer with his union representative, he was told that he would not be given additional time to confer with an attorney and advised that unless he resigned, charges would be filed. He submitted his resignation.
A few days later the individual asked to withdraw the resignation on the grounds that it had been "forced" from him. When the request was denied, the individual sued, claiming his resignation had been obtained under duress and thus was void.
The Court of Appeals ruled that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643]. The court upheld the appointing authority’s refusal to allow Rychlick to withdraw the resignation, indicating that the "threat to file formal charges ... if [Rychlick] did not resign does not constitute duress."
* 4 NYCRR 5.3 (c) which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides:as follows: “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.” Many local Civil Service Commissions have adopted a similar rule.
Department of Environmental Protection v Donas, OATH Index No. 781/09
The Department of Environmental Protection filed disciplinary charges pursuant to Section 75 of the Civil Service Law and proved that the employee improperly used his work e-mail account for union activities. Harry Donas, an assistant chemical engineer and a Chapter President for his union, responded to an e-mail that was of a "campaign nature."
Administrative Law Judge Alessandra Zorgniotti found that Donas had knowingly used the Department’s e-mail to write about union election matters, which was prohibited by agency rules.
However, Judge Zorgniotti found that the Department failed to prove that Donas violated agency rules on a separate occasion when he e-mailed union members regarding a work-related matter as the e-mail had nothing to do with union elections.
The penalty recommended by the ALJ: Donas be reprimanded
Employee dismissed after being found guilty of 14 of 16 allegations of misconduct by the Civil Service Law Section 75 hearing officer
Matter of Roth v Manhasset Union Free School Dist., 60 AD3d 771
Jeffrey S. Roth, an audio-visual technician employed by Manhasset Union Free School District, was served with disciplinary charges alleging that he was guilty of 16 acts of misconduct.
These charges included allegations that he made false or misleading statements concerning his employment status with the District; that he had physically threatening other District employees; that he had made inappropriate comments of a sexual nature to students; and that he had failed to follow lawful directives of his immediate supervisor directing him “to refrain from being alone with students.”
The hearing officer found Roth guilty of 14 of the 16 charges; the District imposed dismissal as the penalty for Roth’s misconduct.
In response to Roth’s appeal, the Appellate Division said:
1. The review of administrative determinations in employee disciplinary cases made as a result of a hearing required by Civil Service Law § 75 is limited to a consideration of whether the determination is supported by substantial evidence;
2. Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"; and
3. It is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject.
Concluding that the District’s determination was " supported by substantial evidence,” the Appellate Division sustained the penalty imposed by the District, commenting that "the imposed penalty of dismissal was not so disproportionate to the offense as to be shocking to one's sense of fairness or shocking to the judicial conscience” – the Pell standard [Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].
Public Personnel Law E-books
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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
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