July 30, 2010

Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination

Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination
New York State Office of Mental Health v New York State Division of Human Rights, 2010 NY Slip Op 06268, Decided on July 29, 2010, Appellate Division, Third Department

Bisi Asimolowo was employed by the Office of Mental Health as a pharmacy intern in 1992 and Asimolowo understood that he was expected to take and pass the licensing examination to become a pharmacist.

Although Asimolowo failed to become a licensed pharmacist, Mental Health periodically obtained authorization from the Department of Civil Service to continue employing him as a pharmacy intern.

The decision reports that in 2003 Asimolowo was unable to work for approximately 27 days due to undergoing treatment for cancer.

Asimolowo subsequently submitted a doctor's note stating that he was “medically disabled due to an ankle and knee injury.” On that same day Mental Health notified him that his employment would end, “ostensibly because the Department [of Civil Service] had declined to authorize his continued employment.”

Asimolowo filed a verified complaint with State Division of Human Rights alleging that among other things, disability discrimination. Ultimately a SDHR Administrative Law Judge issued a recommended order finding that although Mental Health had advanced an otherwise legitimate, nondiscrimatory reason for terminating Asimolowo's employment, it was, in fact, a pretext and Asimolowo had been discharged because of his disability.

The Commissioner of Human Rights adopted the ALJ's findings but reduced the proposed award of damages from $50,000 to $30,000.

Noting that “A determination of SDHR is entitled to considerable deference due to its expertise in assessing discrimination claims, and we must uphold that determination if it is supported by substantial evidence,” the Appellate Division said that “The parties do not dispute that Asimolowo suffered from a disability but was capable of working as a pharmacy intern or that [Mental Health] provided a legitimate, nondiscrimatory reason to support his termination.

Accordingly, said the court, it need only determine whether substantial evidence supports SDHR's finding that Asimolowo demonstrated that Mental Health's nondiscrimatory reason was, in fact, a pretext for unlawful discrimination.

Recognizing that Mental Health “undoubtedly had legitimate concerns about Asimolowo's employment status given his failure to become a licensed pharmacist,” the Appellate Division said that “serious efforts to remove him only began after he used a substantial quantity of sick leave to address medical issues.”

The court also commented that “discussions of an unknown nature” occurred between Mental Health officials and the Department of Civil Service and that Asimolowo was not advised of his termination until after his supervisor was notified of his knee and ankle injury, “despite [Mental Health’s] purported awareness of the pending termination for months beforehand.”

The court concluded that although the evidence in the record could support a different result, substantial evidence supported SDHR's determination that “relying upon Asimolowo's dubious civil service status to terminate him was a pretext and that [Mental Health] intended, by the ‘devious and subtle means’ often employed, to discriminate.”

The Division's award of damages for Asimolowo's emotional distress was also affirmed. Such injuries, said the court, may be proven by a complainant's own testimony, even in the absence of medical or other treatment.

The Division had found that Asimolowo was continuing to feel "enormous mental anguish and humiliation" at the time of the hearing, over four years later, and that he was "deeply hurt" that his children had lost respect for him as a result of losing his job.

The decision is posted on the Internet at:

Paying prevailing wages

Paying prevailing wages
Office of the Comptroller ex rel Local 924 v Office of Labor Relations, OATH Index No. 464/10
Office of the Comptroller ex rel Local 1087 v Office of Labor Relations, OATH Index No. 588/10

The "prevailing wage law" requires the City of New York to pay “laborers, workmen and mechanics” in its employ the prevailing rate of wages and benefits paid in the private sector for work in the same trade in the locality.

The City and public sector unions are required to negotiate in good faith to enter into a contract setting the wages and benefits for prevailing wage employees but when negotiations fail, the union may file a complaint with the Comptroller on behalf of its members.

The Comptroller is authorized to conduct an investigation to determine the prevailing wages and benefits for the group of employees and has designated New York City's Office of Administrative Tribunals and Hearings [OATH] to conduct hearings in these matters.

In the Local 924 case OATH Administrative Law Judge Tynia Richard recommended that Laborers and City Laborers be paid wage and benefits in accord with those set forth in the contract for Local 79 mason tenders.

The Office of Labor Relations had contended that cleaners and porters who belong to Local 32BJ are the proper private sector match for the City Laborer and Laborer position. Comparing the work performed by the City Laborers and Laborers to that performed by mason tenders and porters and cleaners, ALJ Richard found the City employees' work more comparable to the mason tenders.

The Local 924 decision is posted on the Internet at:

The Local 1087 case concerned a proceeding to set the prevailing wages and benefits for City locksmiths and locksmith supervisors.

The Comptroller and Local 241 sought a determination that both titles be paid wages and benefits in accord with those paid pursuant to a collective bargaining agreement for locksmiths and supervisors at Columbia University.

The Office of Labor Relations argued that the union was not the prevailing one because its members do not comprise 30 percent or more of the locksmiths in New York City.

OATH Administrative Law Judge Addison ruled for the Comptroller and the union. Although the number of Local 241 locksmiths did not independently meet the 30 percent threshold for the title, when combined with Local 348 locksmiths, collectively the union locksmiths exceeded the thirty percent threshold.

ALJ Addison also ruled that where two or more collective bargaining agreements are involved, the prevailing wage may be set by picking the predominant one, here the members of Local 241 who work at Columbia University.

The Local 1087 decision is posted on the Internet at:

July 29, 2010

Protecting whistleblowers the focus of a policy statement issued by Wayne County [NY]

Protecting whistleblowers the focus of a policy statement issued by Wayne County [NY]
Source: Wayne County web site

Wayne County recently issued a policy statement addressing Whistleblower Protections . The statement indicates that “Wayne County will extend to its employees all protections afforded to them under the applicable State and federal Whistleblower laws including the Federal False Claims Act, the New York State False Claims Act and the New York State Civil Service Law.

The statement notes that New York State Civil Service Law [Civil Service Law §75-B] prohibits the public employers from dismissing or taking other disciplinary or other adverse personnel action against a public employee who reports fraud, wrongdoing or violations of the law, "to Wayne County or to another government body." These protections apply to disciplinary proceedings, arbitration and collective bargaining agreements where the adverse action taken by the employer is based solely on retaliation for whistleblower conduct.

The statement also notes that in the event the employee who has been the subject of a retaliatory personnel action is not subject to final and binding arbitration, the employee may bring a civil action in court and the court may order reinstatement of the employee to the same or an equivalent position, the reinstatement of full fringe benefits and seniority rights and compensation for lost wages, benefits and other remuneration including court costs and attorney fees.

Also addressed are the State and Federal False Claims Acts.

Under the Federal False Claims Act* any person may bring a qui tam** civil action for a violation of the Federal False Claims Act on behalf of the federal government. Further, an employee may bring a qui tam lawsuit in U. S. District Court if the employee has been discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or employer because of lawful acts done by the employee in reporting a false claim to the employer or to a government body.

The policy provides that in the event “if employee, contractor or vendor witnesses, learns of, or is asked to participate in, an activity that could potentially violate or is suspected or known to violate this Compliance Plan or any Wayne County policy, or any law or regulation, he or she must report the request and the activity."

According to the statement, "Employees, contractors or vendors should endeavor to contact their supervisor, acting supervisor, or department head first. If those persons are not available, or the reporter has reason to believe that the supervisor or department head is a party to the activity, or if the suspected violation presents an immediate or serious danger to the public health or safety, then the employee, contractor or vendor shall contact the Compliance Officer.”

As to New York State’s False Claims Act, Article 13, State Finance Law, (NYSFCA),*** also referred to as a Qui Tam Statute or as a whistleblower law, the NYSFCA allows a private individual (including a public employee) to sue a person or company (including a fellow employee or employer in their individual capacity), "if such person or company knowingly submits a false or fraudulent claim to a state or local government." Such false or fraudulent financial claims include, but are not limited to, health care fraud in programs such as Medicaid.

* On the Internet at:

** One of the "ancient common law writs," a writ of qui tam allows a private individual to prosecute an alleged violation of §3729. If successful, the individual can receive all or part of any penalty imposed. A private person may bring such a civil action pursuant to §3730 of the Act, which provides that "The action shall be brought in the name of the Government [by a private individual]."

*** See, also, §740 of the State Labor Law.

The full text of the Wayne County policy statement is available on the Internet at:

Revised Model State Administrative Procedure Act

Revised Model State Administrative Procedure Act
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved

From the National Conference of Commissioners on Uniform State Laws (NCCUSL) web site:

The Revised Model State Administrative Procedure Act is an update of the 1980 act of the same name.

The 1980 Act provided procedures for promulgating administrative regulations and for adjudicating disputes before administrative bodies.

The Revision updates the act to recognize electronic communications and other state procedural innovations since the Act was originally promulgated.

The draft presented at the recently completed Annual Meeting, along with other related materials, is available here.

Edward M. “Ted” McClure
Phoenix School of Law

Oregon retired police officers do not have a property interest in continuing in the health insurance plan available to police officers on active duty

Oregon retired police officers do not have a property interest in continuing in the health insurance plan available to police officers on active duty
Doyle v City of Medford, USCA, 9th Circuit, No. 09-16037

Although the City of Medford, Oregon did not provide health insurance coverage to its retired police officers upon their retirement, the retirees could elect to remain covered in the City’s plan for 18 months after their retirement under the Consolidated Omnibus Budget Reconciliation Act of 1985, COBRA, 29 U.S.C. §§1161-1168.

After that 18-month period, the retired police officer could enroll in the Oregon Public Employees Retirement System Health Insurance Program. The City made employer contributions to the Retirement System’s Health Insurance Program.

Ronald Doyle and other retired police officers sued the City and its City Manager, Michael Dyal, contending that they should be provide with the same health insurance coverage available to active police officers pursuant to a collective bargaining agreement between the City and the employee organization representing the police officers upon their retirement.

The US Court of Appeals, Ninth Circuit, ruled that the City of Medford’s decision to deny “active employee” health insurance coverage to its retired police officers did not violate their due process rights as Oregon Revised Statutes §243.303 did not create a property interest in having such health insurance coverage continue into retirement. Accordingly, said the court, the retired police officers lacked a legally protected property interest to the health insurance benefits available to active City police officers under the controlling collective bargaining agreement.

Noting that §243.303 provides that “A local government must make health insurance coverage available to retirees only if the government offers such coverage to current officers and employees,” the Circuit Court held that such a provision did not bar a jurisdiction from considering “real-world circumstances” that could excuse its obligation to cover retirees, citing Town of Castle Rock v. Gonzales, 545 U.S. 748.

In contrast, in Armistead v Vernitron Corp., 944 F.2d 1287, the Circuit Court of Appeals, Sixth Circuit, affirmed a lower court ruling that held that when a collective bargaining agreement is intended to give retirees with lifetime health and life insurance benefits, such benefits were not subject to unilateral termination.

N.B. “Participating employers” in the State's Employee Health Insurance Plan must allow employees to continue in the plan upon retirement [§163.4, Civil Service Law] and are required to pay "not less than fifty percentum of the cost of ... the coverage of its employees and retired employees ... [and] not less than thirty-five percentum ... for the coverage of dependents of employees and retired employees..." [§167.2, Civil Service Law].

The Doyle decision is posted on the Internet at:

Books from the Public Employment Law Press

Books from the Public Employment Law Press

For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to:

For information about PELP's The Discipline Book, now available in both an e-book and in a softcover format, go to:

For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to:

July 28, 2010

An individual must prove his or her case by a “preponderance of the evidence” in order to prevail at a “name-clearing hearing”

An individual must prove his or her case by a “preponderance of the evidence” in order to prevail at a “name-clearing hearing”
Casale v Metropolitan Transp. Auth., 2010 NY Slip Op 06218, decided on July 27, 2010, Appellate Division, First Department

Nicholas Casale, claiming that certain statements in the Metropolitan Transportation Authority's letter to him terminating his employment* characterizing his actions as “dishonest” were false, demanded a name-clearing hearing.**

The hearing officer ruled that Casale was required to prove that the Authority’s statements to which he objected were false by a preponderance of the evidence and that Casale failed to meet this test.

The hearing officer found that Casle had repeatedly mischaracterized his source of information in an investigation of corruption as a confidential informant, concluding that “this conduct was dishonest.”

The Appellate Division said that such a determination by a hearing officer is not foreclosed as a matter of law even if the hearing officer believed that Casale was acting to benefit the Authority rather than for his own personal gain. The court said that the hearing officer is to determine the issue of an employee's dishonesty “with reference to the employer's general business or the employee's own functions and that is precisely what occurred here.”

Nor, said the court, did the hearing officer exceed his jurisdiction in "finding that petitioner engaged in a pattern of dishonesty." The terms of the stipulation governing the name-clearing hearing did not limit the inquiry to the fabrication of the existence of a confidential informant.

Although Casale’s tenure status is not indicated in the decision, typically New York courts have directed "name-clearing hearings" for probationary employees and for employee without tenure who allege that they have been "stigmatized" as a result of “State action” and the employer has made such "stigmatizing" information public.

A name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.

The decision is posted on the Internet at:

US Department of Labor COBRA website updated

US Department of Labor COBRA website updated
Source: Labor Department press release

The Department of Labor's Employee Benefits Security Administration has updated its dedicated COBRA web page to reflect the relevant changes resulting from the Unemployment Compensation Extension Act of 2010.

The website address is:

Temporary appointment to a position in the public service

Temporary appointment to a position in the public service
CSEA Local 1000 v NYS Dept. of Civil Service, App Div, 250 A.D.2d 968, Motion to appeal denied, 92 N.Y.2d 808

The State Fair Division of the New York State Department of Agriculture and Markets employed a number of individuals in noncompetitive class or labor class positions and designated them as “temporary employees.” CSEA Local 1000 commenced an Article 78 action to compel the State Department of Civil Service to grant each such individual “permanent employee status.”

A state Supreme Court justice dismissed CSEA’s petition after finding that these employees “were hired as temporary employees and did not thereafter obtain permanent status by operation of law or otherwise....” Accordingly, the Court ruled, these individuals were not legally entitled to permanent status. The Appellate Division affirmed the Supreme Court’s decision.

The rationale underlying the Appellate Division’s decision wasthat the positions in question were not funded by the State. The ability to establish and pay for these positions depended on revenues from the annual State Fair and other non-State revenue sources.

The record showed that the individuals were “appointed to temporary positions” and such appointments were “on a temporary basis.” The decision comments that “fundamentally an unlawful extended period of temporary service cannot ripen into a permanent appointment unless the appointee met all of the requirements for permanent appointment at the time of the temporary appointment,” citing Reis v New York State Housing Finance Agency [77 NY2d 915] and Montero v Lum [68 NY2d 253].

However, it should be noted that the Reis and Montero cases concerned claims of permanent status in competitive class positions advanced by provisional employees. Section 64 of the Civil Service Law provides for temporary appointment, including temporary appointments to positions in the competitive class; Section 65 of the Civil Service Law specifically provides for provisional appointment to competitive class positions.

Nothing in the Civil Service Law precludes making a permanent appointment to a temporary position although such an appointment has the potential of resulting in a “layoff/preferred list” situation. In addition, Section 64.5 of the Civil Service Law authorizes permanent appointment to an encumbered position under certain circumstances. Section 64.5 appointments are commonly referred to as “contingent permanent appointments.”

In any event, an appointment to a temporary position should be distinguished from a personnel transaction involving the appointment of individual to a position “temporarily vacant” due to the permanent incumbent being on a leave of absence without pay. Generally, a reference to a “temporary position” reflects financial considerations, such as the source of funding or the continued availability of funds. In contrast, “temporary appointment” reflects the employment status of the individual and the tenure rights, if any, that flow from such status. Accordingly, there is a significant difference between a “temporary position” and a “temporary appointment.”

To illustrate the need to distinguish between the status of a position and the status of an individual serving in a position, the Appellate Division did not have any trouble holding that permanently appointing a candidate on an eligible list to a non-existent position just before the list expired did not offend the Civil Service Law. The appointment was made “from the old list” in anticipation of a vacancy that would result upon the retirement of the then incumbent a few weeks later. The Appellate Division dismissed the action brought by individuals on the new eligible list for the position challenging the appointment to a position that did not exist.

July 27, 2010

Employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview

Employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview
NYC Health and Hospital Corporation v Jones, OATH Index #1100/10

Karin Jones, a clerical employee at a City hospital, was charged with misconduct arising from an incident involving a mother strike or push her young child during a visit to the hospital.

Jones was charged with failure to cooperate in an official investigation because she would not answer questions unless her union representative was present.

OATH Administrative Law Judge Faye Lewis sustained one charge based upon Jones’ refusal to answer questions asked by the hospital's child protective coordinator. The coordinator was conducting a “time-sensitive investigation,” i.e., to determine if a reportable event had occurred while the mother and child were still at the hospital. At this point – the “first interview -- the coordinator wanted to find out what Jones had seen.

As the focus of the first interview was “investigatory” rather than “disciplinary” insofar as Jones was concerned, the Administrative Law Judge ruled that Jones could be disciplined for refusing to cooperate with the child protective coordinator in the course of the “first interview.”

In contrast, ALJ Lewis dismissed charges based upon Jones’ refusal to answer questions asked by her supervisors in the course of a second interview without her union representative present. In this instance the ALJ found that the supervisor’s questioning Jones was primarily focused upon her failure to cooperate and thus it was reasonable for Jones to believe that providing information during this second interview could lead to disciplinary action.

The decision is posted on the Internet at:

Advisory arbitration recommendation neither binding on the parties nor subject to "confirmation" pursuant to CPLR Article 75

Advisory arbitration recommendation neither binding on the parties nor subject to "confirmation" pursuant to CPLR Article 75
CSEA Local 1000 v Nassau County, Appellate Division, 251 A.D.2d 328

The CSEA and Nassau County submitted a grievance to advisory arbitration. The arbitrator issued an “advisory recommendation” in CSEA’s favor. When the county refused to implement the arbitrator’s recommendation, CSEA brought an action pursuant to Article 75 of the Civil Practice Law and Rules in an effort to “confirm” the recommendation, thereby requiring the county to implement it.

The Appellate Division affirmed a Supreme Court justice’s dismissal of CSEA’s Article 75 petition. The Court explained that under the circumstances, “the advisory arbitrator’s recommendation never became binding upon the County.”

The decision points out the significant difference between binding arbitration and advisory arbitration.

In binding arbitration, the prevailing party is able to enforce an award issued by the arbitrator through an Article 75 proceeding. No similar procedure is available to the prevailing party in an advisory arbitration.

Buying back retirement credit

Buying back retirement credit
Whalen v Whalen, Rockland County Supreme Court, [Not published in the Official Reports]

Buying back or purchasing retirement system service credit when possible is usually viewed as a good decision on the part of system member as it will generally increase the member’s ultimate retirement allowance. But such action may generate unanticipated legal consequences, as demonstrated by the Whalen case.

Whalen v Whalen is a divorce action. One of the elements considered by the court in connection with the distribution of the “marital assets” was the value of any retirement benefits due the husband flowing from his membership in the New York State Teachers’ Retirement System [TRS].

According to the decision, the husband withdrew from TRS when he left New York State to teach in Connecticut. He then returned to teaching in New York and rejoined TRS.

Also a factor in the court’s analysis was a prenuptial agreement, a post nuptial agreement and a joint will, none of which referred to “pension benefits.”

The husband had “cashed in” his membership in TRS [Education Law Section 503(3)] when he left the state. He subsequently repurchased his prior member service credit when he rejoined the system by paying the required contributions [Section 509, Education Law]. Thus, said the wife, her former husband’s TRS retirement benefits were “marital property” and therefore subject to distribution; her former husband argued that his retirement benefits were “separate property” under a prenuptial agreement.

Whalen's former wife prevailed.

According to the decision by Justice Miller, “the pension credits earned by [husband] ... had [he] not cashed them in, would undoubtedly have been his separate property. Once cashed in, however, the pension credits were, at best, a potential but dormant asset, of no value until the [husband] fulfilled certain statutory requirement. The assets reacquired a value during the marriage, when [the husband] fulfilled his obligations with respect to employment and repaid his contributions with marital funds. ... To the extent that the [husband’s] pension acquired an enhanced value during the marriage, that enhance value is marital property.”

Also a factor in the action was the husband’s retirement benefit from the State of Connecticut’s Teachers’ Retirement System, which also involved a “cash-out” and his subsequent rejoining that system.

The court said that a determination of the value of marital assets resulting from such membership must await a trial, at which time “the parties must offer sufficient evidence of the value of the [Connecticut] pension on the date of the commencement of this action and the difference, if any, in the value of the pension which resulted from the payments made during the marriage to repurchase past [Connecticut] credits.”

July 26, 2010

The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another law

The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another law
Hayes v City of NY Dept. of Citywide Admin. Servs., 2010 NY Slip Op 20289, Decided on July 20, 2010, Supreme Court, New York County, Judge Alexander W. Hunter

New York City Fire Captain Robert Hayes applied for and took the Promotion to Battalion Chief Examination No. 8511.

The Test Validation Board rating this examination initially advised the candidates that it proposed the correct answers to questions 15, 46, and 85 as A, A, and D, respectively, Hayes had selected these as correct answers to these questions. However, the final determination by the Test Validation Board allowed A, B, C, and D as correct answers for each of the three questions.

Hayes objected to the Board’s decision, contending that in allowing A, B, C, and D to be deemed correct answers for each of these questions rather allowing only alternate answers that were as good as or better than the proposed answers upon protest, the Board effectively deleted the three questions thereby exceeding its authority under Civil Service Law §50-a.*

Judge Hunter dismissed Hayes’ Article 78 petition seeking to vacate the Board’s final decision as untimely. Although Hayes had filed his petition within the “four month statute of limitations” typically applicable in challenging an administrative determination, in this instance §50-a required that such a petition had to be filed within thirty days “of service of the notice of availability of the determination of the test validation board upon the protesting candidate….”

In the words of the court, “Hayes was given notice of the validation board's determination on December 17, 2009 and did not file a petition under Article 78 until April 12, 2010, nearly four months later, and nearly three months after the 30-day requirement as set forth in Civil Service Law § 50-a. Therefore, this petition is outside of the statute of limitations and is hereby dismissed.”

As to Hayes’ argument that the time limits set out in §50-a did not apply in this instance, Judge Hunter explained that although “The purpose of an Article 78 proceeding, utilizing C.P.L.R. §7803[3] as this case does specifically, is to permit the aggrieved candidate an opportunity to argue why the determination of the administrative agency was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion .’ … This is precisely the issue at bar and within the scope of Civil Service Law §50-a.”

N.B. Exceptions to “the ususal” statutes of limitations are sometimes set out in law. For example, although an Article 75 petition seeking to confirm or vacate an arbitration award “must be filed ninety days after its delivery,” Education Law Section 3020-a(5) requires that an Article 75 petition challenging the arbitration award resulting from a Section 3020-a disciplinary hearing to be filed “Not later than ten days after receipt of the hearing officer's decision” in order to be timely.

* Civil Service Law §50-a authorizes “test validation boards” to determine the correct scoring of civil service examinations for positions in the competitive class within the jurisdiction of the New York City Department of Personnel and provides that “the test validation board shall make a determination whether the answers elected by the protesting candidates are as good as or better than the proposed key answers or whether the rating guide should be modified and shall give reasons therefor in an opinion in writing.

The decision is posted on the Internet at:

The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctions

The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctions

Source: Adjunct Law Prof Blog;
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Spoth v. M/Y Sandi Beaches, 2010 WL 2710525 (W.D.N.Y.July 7, 2010) (not available on internet), is an interesting case that discusses the possibility of sanctions if a party discloses confidences learned in court annexed mediation.

Scholars and lawyers may find this case of interest.

Mitchell H. Rubinstein

Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay

Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay
Ernst v Saratoga County, Appellate Division, 251 A.D.2d 866

Saratoga County filed disciplinary charges against Donald P. Ernst, its director of data processing, alleging misconduct and incompetency based on complaints of sexual harassment filed by a number of women supervised by Ernst.

Ernst was found guilty of the charges and the County Board dismissed him from his position effective December 20, 1994. The Appellate Division, however, annulled the determination. The court said that one of the County’s officials [Sullivan] “improperly participated in the final determination” and there was no evidence “that the members of the Board had an opportunity to review the [disciplinary hearing] record” before making its decision. It returned the matter to the Board for a redetermination (Ernst v Saratoga County, 234 AD2d 764).

Each member of the Board then reviewed the hearing record and, without Sullivan’s participation, on February 25, 1997 voted to terminate Ernst retroactive to December 20, 1994. The Board also rejected Ernst’s claim for back salary for the period December 20, 1996 through February 25, 1997.

Ernst appealed, contending that:

1. The decision to terminate him was arbitrary and capricious; and

2. He was entitled to back salary.

The Appellate Division upheld the Board’s determination dismissing Ernst from his position, ruling that the record contained substantial evidence supporting the Board’s decision. In addition, the court concluded that the penalty imposed met the Pell standard [Pell v Board of Education, 34 NY2d 222] as it was “not shocking to one’s sense of fairness” in view of the offenses for which Ernst was found guilty.

The question of back salary and benefits, however, was another matters. Here the court decided that Ernst was entitled to back salary for the period from his initial termination in 1994 and his subsequent termination in 1997 “less any compensation derived from other employment during that period and any unemployment insurance benefits received for that period.”*

According to the ruling, “a proper termination cannot be extended retroactively to cover a prior period of termination annulled due to procedural failures.”

* NB: In 1985 Section 77 of the Civil Service Law was amended eliminating the deduction for “compensation derived from other employment” upon reinstatement by court order. The same is true with respect to reinstatements directed by a civil service commission pursuant to Section 76 of the Civil Service Law. In contrast, back pay issues are unlikely to arise in disciplinary actions brought pursuant to Section 3020-a of the Education Law as that statute provides that such disciplinary suspensions must be with pay unless (1) the individual has been convicted or entered a guilty plea in a criminal action involving drugs or the physical or sexual abuse of a minor or student or (2) a Taylor Law agreement permits disciplinary suspensions without pay upon the serving of Section 3020-a charges.

Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher

Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher
Appeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No. 15,850,

Nicola A. DeMarco, a tenured teacher employed by the New York City Department of Education [DOE], was served with disciplinary charges initiated by his principal at Louis Armstrong Middle School.

DeMarco demanded a hearing on the charges to be conducted by a three-member panel* pursuant to Education Law §3020-a, and also demanded dismissal of the charges on the ground that “disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.”

DOE refused DeMarco’s demands on the grounds that it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4);** its agreement with the United Federation of Teachers did not provide for three-member disciplinary panels; and … the authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District involved.

The Commission dismissed DeMarco’s appeal for lack of personal jurisdiction after finding that DeMarco had not served the only agent authorized to accept service of his appeal on behalf of the DOE, the Office of the Corporation Counsel.

In addition, the Commissioner said that DeMarco’s appeal had to be dismissed because, as Commissioner, he no longer had subject matter jurisdiction. Education Law §3020-a was substantially amended in 1994 and the Commissioner no longer had jurisdiction to review either final or nonfinal determinations by disciplinary hearing officers.

The amendment, said the Commissioner, “specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges, citing Education Law §3020-a[c][iii] and [iv].” Accordingly, concluded the Commissioner, DeMarco’s request that he dismiss the charges would require a review of the merits, which review was no longer within his jurisdiction.

* §3020-a.2(c) provides that in the event the disciplinary charges concern pedagogical incompetence or issues involving pedagogical judgment, the educator may elect to have the hearing conducted by either a single hearing officer or a three-member panel. All other charges are to be heard by a single hearing officer.

** As the Court of Appeals indicated in Antinore v State, 40 NY2d 6, a collective bargaining agreement may provide for alternatives to the statutory provisions provided such modifications are consistent with administrative due process.

The full text of the Commissioners decision is posted on the Internet at:

July 23, 2010

Applying the Rule of Three when there are tied scores involved

Applying the Rule of Three when there are tied scores involved
Source: A Google Alert received by NYPPL

A "Google Alert" received by NYPPL via the Internet concerned applying the Rule of Three set out in §61.1 of the Civil Service Law based on the following facts:

“I scored a 100 on a New York State civil service promotional exam. There were 7 openings for supervisor. Five candidates scored a 100. One of the four declined the promotional opportunity. The promotions were given to two eligibles who scored 100, four eligibles who scored 95, and one eligible who scored a 90.

“I am familiar with the "rule of three" and have researched New York State Civil Law, NYS CSL 61.1 in particular. Every example that is given refers to a situation in which one promotional opportunity is available. For example, if one eligible scores 100, one eligible scores 95, and one eligible scores 90, and all the other candidates score lower than 90, the rule of three means that the eligible who scored the 90 can be given the promotion over the two eligibles who scored higher that he/she did.

“However, I did not come across an example of how the rule of three would work when more than one position is available.”

NYPPL’s response:*

Considering the application of the Rule of Three on a “step-by-step basis,” the Rule of Three “works” as follows:

1. As to the five candidates receiving a score of 100, as one has declined, the four remaining eligibles are certified. Two are appointed, resulting in five vacancies yet remaining to which appointments may be made.**

2. The next group of candidates eligible for selection for appointment would consist of the two remaining candidates scoring 100 plus the four eligibles that received a score of 95, a total of six eligibles. The four eligibles attaining a score of 95 are appointed, leaving one vacancy yet to fill.

3. The next group of candidates eligible for selection for appointment would consist of the two candidates with a score of 100 and the one [or more] eligibles attaining a score of 90. A candidate who received a score of 90 on the examination may be lawfully selected, thereby filling the last available vacancy, without offending the Rule of Three.

Another example:

Ten candidates received scores of 100 while four achieved scores of 95 and one candidate had a score of 90. Again, one of the candidates attaining a score of 100 declines, leaving nine candidates with scores of 100 interested in being appointed. With seven vacancies available for appointment, the appointing authority may fill all, some or none of the vacancies but only the nine interested candidates attaining scores of 100 are "reachable" for appointment. Candidates receiving a score of less than 100 are not included on the list certified for appointment and thus are not part of the candidate pool. Why? Because once six appointments are made from among the nine eligibles attaining a score of 100, three eligibles remain available for selection to fill the seventh and last vacancy, thus triggering the Rule of Three.

If, however, a second eligible attaining a score of 100 were to decline the appointment, all four eligibles with a score of 95 would become eligible for appointment and they, together with the remaining eight eligibles have a score of 100, would constitute a pool of twelve individuals reachable for appointment and the appointing authority could select any seven of the twelve for the appointment.***

In other words, the number of candidates eligible for appointment at any particular point in time is a "moving target."

[NYPPL periodically post answers to selected general questions concerning public personnel law issues. Readers may e-mail their question to]

* This analysis assumes that the "entire eligible list" consisted of ten eligibles: five candidates attaining a score of 100, four candidates attaining a score of 95 and one candidate attaining a score of 90. However, had there been more than one candidate attaining a score of 90, all the eligibles attaining a score of 90 would have been in the "candidate pool."

** N.B. An appointing authority is not required to use a mandatory eligible list and may, as a matter of discretion, elect not to fill the vacancy. On the other hand, an appointing authority may use a “non-mandatory” eligible list to fill a vacancy either on a permanent basis or on a provisional basis. However, if the appointing authority makes a provisional appointment “from a nonmandatory list,” the appointee may attain tenure in the position under certain circumstances [see Civil Service Law §65.4.] The seminal case that considered such an appointment situation is Matter of Roulette, 40 AD2d 611.

*** In some departments and agencies the appointing authority may elect, or pursuant to the terms of a collective bargaining agreement, be required to fill vacancies on the basis of the "Rule of the List" whereby individuals on an eligible list are appointed in the order of their rank or position on the list.

Vacating an arbitration award based on allegations that the arbitrator was not impartial

Vacating an arbitration award based on allegations that the arbitrator was not impartial
Meehan v Nassau Community College, App. Div., 251 A.D.2d 417, Motion for leave to appeal dismissed, 92 N.Y.2d 946

This item summarizes a number of related decisions involving the same parties considered by the Appellate Division.

Article 75 of the Civil Practice Law and Rules [CPLR] sets out very limited grounds upon which a party who has either participated in an arbitration, or has been served with a notice of intention to arbitrate, may ask the courts to vacate or modify the award. In order to vacate an award, the court must find that the rights of the moving party were prejudiced by:

1. Corruption, fraud or misconduct in procuring the award; or

2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

3. An arbitrator, or agency or person making the award exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

4. The failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

Nassau County Community College sought to overturn two arbitration awards under Article 75.

The first, referred to by the Appellate Division as the “overload arbitration,” involved a complaint by the Nassau County Community College Adjunct Faculty Association that the college had assigned certain “overload courses” to members of the full-time faculty, rather than employ members of the adjunct faculty to teach these courses.

The second award, the “History Department” arbitration, involved persons who lacked certain academic credentials teaching in that department.

In both cases the college asked the court to vacate the award because one member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator testified concerning these facts during the arbitration. This conduct by the arbitrator, the College urged, justified overturning the arbitration panel’s award in favor of the Association.

The contract grievance procedure relevant between the parties provided that the arbitration panel would consist of “one member selected by the College Administration, one selected by the Adjunct Faculty Association, and a third selected by mutual consent.”

According to the ruling, the Association’s designated member of the arbitration panel testified at the arbitration that because of “the assignment of various overload courses, more senior adjunct instructors had been `bumped’ by less senior full-time instructors” as well as other matters at issue. The College argued that “[a]rbitrator Loiacono demonstrated partiality and engaged in misconduct when he testified in support of the [union’s] position” at the arbitration.

In “overload courses” award the Appellate Division rejected the college’s argument, holding that “that the CPLR does not authorize vacatur on this ground.” According to the Appellate Division, the terms of CPLR 7511(b)(ii), which specify that the “partiality” of an arbitrator “appointed as a neutral” may be a basis for vacatur, imply that the “partiality” of a party-designated member of an arbitral board may not be the basis for vacatur.

The Appellate Division said “a party-designated arbitrator may in fact be `partial’“ and that by itself this is not grounds for vacating an arbitration award. Nor did the Appellate Division have any problem with a panel member testifying at the hearing.

This ruling may have a significant impact in Section 3020-a disciplinary appeals, which now are processed pursuant to CPLR Article 75 rather than CPLR Article 78 as was the case before Section 3920-a was amended in 1984. Syquia v Harpursville Central School District, 568 NYS2d 263 involved the alleged partiality of members of a disciplinary panel convened under the “old” Education Law Section 3020-a.

The attorney for Harpursville had advanced the argument that “a 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing, and that the panel members selected respectively by the Board of Education and by the teacher are advocates for the party respectively selecting them, with only the Chairman intended to be impartial.”

A state Supreme Court justice said that this was a misunderstanding in educational circles, “if such in fact exists.” The court declared that it was a “misapprehension that in 3020-a hearings the panel member selected by the Board is the `Board’s representative,’ and the panel member selected by the teacher is the `teacher’s representative,’ and only the Chairman is expected to be neutral and impartial.” According to the Meehan decision, this is no longer the case.

In the Nassau decision, [decided pursuant to Article 75 of the CPLR, rather than Article 78, the court held that a party-designated arbitrator may, in fact, be partial. Accordingly, said the court, Mr. Loiacono’s participation in the arbitration proceedings in the dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting corruption, fraud, or misconduct within the meaning of CPLR Section 7511[b][1][i].

Holding that Loiacono’s behavior could not be so characterized, the court confirmed the award. Nor was the “overload course” award held to be violative of public policy. According to the decision, a collective bargaining agreement limiting the college’s ability to assign courses in excess of a specified amount did not interfere with its ability to establish qualifications for its faculty.

In contrast, in the “History Department” aspect of the appeal the Appellate Division decided that the award, “which requires the college to reinstate the grievants, although it is undisputed that they were unqualified to teach courses in the History Department because of their lack of certain academic credentials,” should be vacated. This, however, was not because of Loiacono’s testimony and his participation as an arbitrator in the arbitration proceedings. Rather, said the court, the award had to be vacated because it violates public policy.

The court explained that although not every arbitration under a Taylor Law agreement “that threatens to limit the management prerogatives [of a public employer] is violative of public policy,” here the award’s mandate affected the college’s authority to establish the qualifications of its adjunct faculty and thereby affect the maintenance of academic standards in the classroom.

Multiple Section 75 thirty-day suspensions without pay are permitted if additional disciplinary charges are subsequently filed against the employee

Multiple Section 75 thirty-day suspensions without pay are permitted if additional disciplinary charges are subsequently filed against the employee
Figueroa v NYS Thruway Authority, App. Div., 251 A.D.2d 773

The New York State Thruway Authority filed a series of four charges against Gladys Figueroa, its Affirmative Action Administrator. Each time it suspended her without pay for 30 days pending the completion of the disciplinary action as permitted by Section 75 of the Civil Service Law.

In a number of instances the suspensions overlapped pending disciplinary actions because she was served with new charges before a hearing was completed on earlier charges based on new alleged acts of misconduct.

The first hearing officer found Figueroa guilty and recommended a 60-day suspension without pay; a second hearing officer found her guilty and recommended she be given a reprimand. Before the hearings to resolve the third and fourth disciplinary sets of charges commenced, Figueroa resigned.

Figueroa sued, challenging the findings of the hearing officers with respect to the first and second set of charges and the lawfulness of her four 30-day suspensions without pay. She also asked for back pay and benefits or, in the alternative, new hearings.

According to the Appellate Division, in most instances the hearing officer found Figueroa guilty based on her own admissions. Among the examples of such admissions cited by the court: Figueroa admitted that she had deliberately read confidential material after being told not to; that she left the building after being told to wait outside a supervisor’s office; and that she did not return “excess” travel advances to the Authority in a timely manner.

As to the four suspensions, the court pointed out that Section 75.3 allows an employer to suspend an employee without pay for up to 30 days without pay. It said that it was not persuaded that it was improper to suspend Figueroa “on each of the four separate occasions when she was charged with misconduct.”

The Appellate Division distinguished Figueroa’s situation from that where the appointing authority “has deliberately severed charges for the sole purpose of imposing multiple suspensions.” It noted that the second, third and fourth suspensions resulted from events that occurred after Figueroa had returned from work following the earlier suspensions and resulted in new charges of misconduct being filed against her. However, said the court, Figueroa was still entitled to hearings on the third and fourth sets of charges filed against her because “her resignation neither terminated the proceedings” with respect to those charges nor “obviated [the] adjudication of them.”

Accordingly, the court ruled that hearings on these charges should be held. It also said that Figueroa “if so inclined [may] pursue an action for back pay.”

The Appellate Division pointed out, there was no evidence that Figueroa’s resignation constituted a waiver or abandonment of her claims for back salary.

Assigning a disabled police officer to a “desk job” held to be a reasonable accommodation

Assigning a disabled police officer to a “desk job” held to be a reasonable accommodation
Keever v Middletown, 145 F.3d 809

According to the U.S. Circuit Court of Appeals, Sixth Circuit, providing a “desk job” as a reasonable accommodation to a disabled police officer satisfied Americans with Disabilities Act [ADA] accommodation requirements despite the fact that the officer preferred a different assignment.

Richard T. Keever, a Middletown, Ohio police officer, contended that the desk assignment was demeaning and involved reduced responsibility. He said that he should have either been given a different shift or assigned to a detective position. He sued, contending claiming that the City failed to accommodate his disability, unlawfully harassed him about his disability, and constructively discharged him from the force by forcing him to retire.

The court disagreed, finding no ADA violation. ADA, the court observed, does not require an employer to give an employee his or her “preferred accommodation.” Under ADA the employer can make any reasonable accommodation it determines to be fit and appropriate.

According to the Sixth Circuit, “in determining whether an accommodation is reasonable, the employer must consider (1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee,” citing 29 CFR Section 1630.9(a).

Essentially the court concluded that Keever was not “otherwise qualified” for the position of patrol officer, that he was not constructively discharged, and that he failed to establish a prima facie case of hostile work environment discrimination.

This ruling, made under federal law, may prove relevant to making “light duty” assignments of personnel receiving disability benefits under Section 207-a or Section 207-c of New York’s General Municipal Law [GML].

As was noted in City of Cohoes v Local 2562, 94 NY2d 686, “light duty” is based on the non-working individual’s medical condition and physical capacity rather than upon any contractual requirement. “GML Section 207-a is properly understood as being independent of contractual provisions governing regular duty, by giving full pay to fully or partially disabled firefighters performing no work or only `light duty.’“

In the words of the Court of Appeals:

"Our conclusion that appellants must submit medical evidence contesting the City's physician's findings in order to trigger a hearing is also supported by the holdings, in other contexts, that due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts (see, Codd v Velger, 429 US 624, 627; Matter of Economico v Village of Pelham, 50 NY2d 120, 128; Matter of Dolan v Whalen, 49 NY2d 991, 993). Thus, the Appellate Division properly rejected appellants' claim of entitlement to a due process hearing before being ordered to return to duty.”

The Cohoes decision, however, implies that light duty could be viewed as a “permissive subject” of collective bargaining under the Taylor Law and ultimately made subject to arbitration under the terms of the agreement.

State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance

State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance
Source: Office of the New York State Comptroller Thomas P. DiNapoli

During the three-year audit period, the Department of Taxation and Finance had 81 contracts for personal and miscellaneous services totaling about $563 million. More than 98 percent of this amount related to contracts for either information technology or banking services.

Auditors examined whether the department was adequately justifying the need to initially contract out for such services and periodically reassessing whether such contracts could be deferred, eliminated or reduced to save state funds.

The auditors found that the department was sometimes but not always performing these activities.

The full text of the audit report is posted on the Internet at:

US Department of Labor to conduct Family Medical Leave Act study

US Department of Labor to conduct Family Medical Leave Act study
Source: The FMLA Blog -
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

On July 21, 2010 Labor Secretary Hilda Solis announced that next year the U.S. Department of Labor will conduct a study of how families use Family Medical Leave Act [FMLA] leave, as well as "information on regulatory changes, among other things."

In the past, DOL studies have been a precursor to regulatory changes. While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments. Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.

The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me).

July 22, 2010

Disciplinary actions held in absentia

Disciplinary actions held in absentia
Clarke v NYC Board of Education, App. Div., 251 A.D.2d 403

No one gave Fernando A. Clarke, a purchasing agent employed by the New York City Board of Education, permission to be absent from his job on February 14, 1994. To make matters worse, he never returned to work and didn’t bother to appear for a scheduled disciplinary hearing.

Clarke was served with charges of AWOL pursuant to Section 75 of the Civil Service Law. Although Clarke did not appear at the scheduled disciplinary hearing, the hearing officer found him guilty of the charges filed against him. The board adopted the findings and recommendations of the disciplinary hearing officer and terminated Clarke from his position.

The Appellate Division dismissed Clarke’s appeal challenging his termination. The court pointed out that Clarke (1) was aware of the time and place of the Section 75 hearing; (2) failed to attend the hearing; or (3) offer any proof on his own behalf.

The decision notes that the only evidence in the disciplinary hearing record was that Clarke had been continuously absent from his position without approval since February 14, 1994 and that he had not provided any satisfactory explanation for this absence. This, said the Appellate Division, was sufficient to provide the substantial evidence needed to support the board’s determination.

This decision demonstrates the fact that an appointing authority may proceed with a disciplinary hearing notwithstanding the fact that the accused employee fails to appear at the proceeding. However, before making a final determination in cases where the Section 75 disciplinary hearing was conducted in absentia, the appointing authority should make certain that:

1. The employee was served with the disciplinary charges and that he or she was advised of the time and place of the hearing;

2. A diligent effort was made to contact the individual on the day of the hearing to determine if there was a reasonable explanation for his or her failure to appear as scheduled before the hearing officer started the hearing;

3. A formal hearing was conducted and that the employer was required to introduce evidence proving its charges before the hearing officer;

4. A formal record of the hearing was made and a transcript provided to the appointing authority and, if requested, to the employee.

Finally, the employee must be advised of the appointing authority’s determination and his or her right of appeal.

Participating in an arbitration

Participating in an arbitration
Elmira Heights CSD v Ed. Support Staff Asso., App Div 250 A.D.2d 983, Motion for leave to appeal denied, 92 N.Y.2d 807

What should a party to an arbitration do if it believes that the controversy to be submitted to the arbitrator is not arbitrable? As the Elmira Heights decision points out, such an objection must be raised by applying for a stay of arbitration or it is waived.

The issue arose after the Elmira Heights Central School District, which was paying the entire cost of its health insurance plan for employees and retirees, negotiated a provision in the Taylor Agreement between the parties, Section 16.1, requiring employees to pay a “percentage of the annual premium for their health insurance coverage.” In contrast, health insurance for employees who retired was covered in another section of the same agreement, Section 16.14. Section 16.14 made no provision for health insurance contributions to be paid by individuals upon their retirement.

In January 1995 the school board adopted a resolution requiring all employees to pay 10 percent of the cost of their health insurance. The superintendent advised all retirees that they, too, would be required to pay 10 percent of the cost of their health insurance. The retirees filed a contract grievance complaining that the imposition of such a payment violated the terms and conditions of Section 16.14.

Ultimately the matter was submitted for arbitration. The arbitrator first found that the grievance was arbitrable. In the arbitration that followed, the arbitrator concluded that the district had violated the agreement when it unilaterally imposed a “co-pay for the health care plan for its retirees.” The district was directed to refund any contributions for premiums made by retirees.

Next the district filed an Article 75 action to vacate the award. Supreme Court granted the district’s petition, finding that the arbitrator “exceeded his authority,” and that the award was contrary to law. The Association appealed the decision. At the Appellate Division the district argued that the retirees were neither members of the negotiating unit nor employees as defined in the collective bargaining agreement and thus the arbitrator exceed his authority in ordering it to refund the retirees’ contributions.

The Appellate Division said that what the district was really arguing was that “the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.” The court ruled that such an argument cannot be raised in a motion to vacate the arbitration award; it must be raised in a motion to stay the arbitration in the first instance.

As to whether or not the arbitrator exceeded his authority, the decision notes that an arbitrator exceeds his or her power “only if he or she gave a completely irrational construction to the provision in dispute and, in effect, made a new contract for the parties.”

Here, said the court, the agreement provides for employee contributions for health insurance but is silent with respect to such contributions by retirees. The arbitrator considered the parties’ past practice and concluded that the district “inappropriately required its retirees to contribute to the cost of their health care ... a determination ... [the arbitrator] was well within his right to make.”

Pointing out that the fact that a different construction might have been given to Section 16.14 does not mean that the arbitrator rendered a completely irrational interpretation and thereby crafted a new contract for the parties, the Appellate Division denied the district’s application to vacate the award.

Use of polygraph tests in an administrative disciplinary hearing

Use of polygraph tests in an administrative disciplinary hearing
Ost v Town of Woodstock, Appellate Division, 251 A.D.2d 724, Motion for leave to appeal denied, 92 N.Y.2d 817

One of the issues raised in the Ost case was the admission of testimony concerning a polygraph [lie-detector] test during 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” [the August 1994 incident] and other charges and specifications concerning other alleged misconduct involving the same woman about a year later.

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.

Another issue that was considered by the Appellate Division was the Town’s decision to dismiss Ost in the face of the hearing officer’s recommendation that he be reprimanded and suspended for 30 days without pay. It noted that initially the Supreme Court had rejected all of Ost’s arguments but one -- that the town had failed to set forth the rationale underlying its departure from the hearing officer’s findings and recommended penalty.

Subsequently the town explained its reasons for its decision -- it found that Ost had lied about his activities in August 1995, and “his testimony regarding the earlier incident was incredible as well.” The Appellate Division affirmed the town’s decision as to guilt and the penalty it imposed on Ost. It said that “reversal of the penalty would not be warranted for the Board explicitly found ... that [Ost’s] actions in August 1995, alone, necessitated his termination from the police force.”

July 21, 2010

Governor Paterson revokes his proclamations calling for extraordinary legislative sessions

Governor Paterson revokes his proclamations calling for extraordinary legislative sessions
Source: New York State Office of the Governor

On July 21, 2010, Governor David A. Paterson revoked his proclamations for the extraordinary sessions he issued on January 17, 2010 and June 26, 2010.

The Governor explained that “This revocation lays to rest spurious claims by both the Assembly and Senate that any prior extraordinary session convened by gubernatorial proclamation remains in progress."

Governor Paterson said that he stands "ready to convene a new extraordinary session of the Legislature pursuant to his authority under Article IV, Section 3 of the Constitution should he deem such an action necessary in the coming weeks.”

According to the Governor’s Office's statement, Article IV, Section 3 of the New York State Constitution gives the Governor broad and unambiguous legal authority "to convene the legislature, or the senate only, on extraordinary occasions."

This provision, said the Governor's Office, has been part of the New York State Constitution since it was first adopted on April 20, 1777.* “Since that time – more than 230 years and four constitutions later** – the provision remains virtually unchanged and imposes no requirement on the Governor to seek legislative permission before convening an extraordinary session.”

* Article XVIII of The Constitution of 1777, in pertinent part, provides that “[The Governor] shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them [i.e., discontinue a session of a legislative body without dissolving it] from time to time, provided such prorogations shall not exceed sixty days in the space of any one year…."

In 1812, then Governor Daniel D. Tompkins [1807-1817; 1817-1825], pursuant to the authority set out in Article XVIII of the Constitution of 1777, "prorogued the legislature" -- the only recorded instance of a New York State governor exercising such power. The full text of the Constitution of 1777 is posted on the Internet at:

** New York State has had five constitutions, adopted in 1777, 1821, 1846, 1894, and 1938, respectively.

The full text of the Governor’s Office's statement is posted on the Internet at:

Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involved

Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involved
Hazen v Board of Educ. of City School Dist. of City of New York, 2010 NY Slip Op 06142, Decided on July 20, 2010, Appellate Division, First Department

Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? The courts have held that characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to a Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. This appears to be the rationale underlying the ruling of the Appellate Division in Hazen.

Wendy Hazen filed a petition pursuant to CPLR Article 78 seeking a court order directing the New York City Board of Education “to expunge certain [critical] letters from [her] personnel file. Supreme Court denied Hazen’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that Hazen sought to compel the removal of the letters to which she objected from her file, which was an action in the nature of mandamus.

However, said the court, placing the letters in her personnel file and deciding whether or not to remove then when Hazen demand their being expunged, are essentially discretionary actions. Mandamus* is not an available remedy in situations involving an administrator’s discretionary action. It is an “extraordinary remedy” limited in its application to vindicate an individual's clear legal entitlement to a course of action.

Further, said the court, Hazen was not entitled to a hearing in this matter as the relevant provision in the controlling collective bargaining agreement sets out the teacher's due process rights to review and challenge entries in her personnel file. The court then found that “there is no reason to conclude that [the school district] failed to follow the procedural requirements imposed by that contract or otherwise acted unlawfully.

In addition, the Appellate Division noted that the actions objected to by Hazen “were not disciplinary or penalty measures related to the filing or disposition of formal charges” and thus she was not entitled to a hearing pursuant to Education Law §3020-a.

* Latin for "We command." The writ of mandamus is an order from a superior body to an inferior body ordering the inferior body [or an individual] to perform, or refrain from performing, a particular act.

The decision is posted on the Internet at:

Divorced retiree may enroll his or her new spouse for dependent coverage in the retiree’s health insurance plan as provided by the CBA

Divorced retiree may enroll his or her new spouse for dependent coverage in the retiree’s health insurance plan as provided by the CBA
Giblin v Village of Johnson City, 2010 NY Slip Op 06133, Decided on July 15, 2010, Appellate Division, Third Department

When William Giblin retired from his position with the Village of Johnson City, he continued his individual and dependent health insurance for himself and his then-wife pursuant to the terms of the relevant collective bargaining agreement [CBA]. The controlling provisions in the CBA provided that "[a]ll present retirees … and all members who retire in the future shall continue to receive Blue Cross, Blue Shield Major Medical Insurance coverage for themselves and their dependents (or comparable coverage as may then be in effect)."

Giblin and his then-wife divorced some time later. As the dependent health insurance coverage for Giblin’s former wife automatically terminated upon divorce, Johnson City terminated Giblin’s “family health insurance plan, switching him to an individual coverage plan.”

Some time later Giblin remarried and he asked Johnson City to enroll his new spouse in the City’s health insurance plan as his dependent. Johnson City refused to do so and advised Giblin that he “no longer had family coverage and was not entitled to change his [individual coverage] plan to family coverage.”

Giblin sued, seeking a court order to annul the City’s determination and a declaration that it was required to provide dependent health insurance coverage to his new spouse. Supreme Court annulled the City’s denial of Giblin’s request and directed the City to extend health insurance benefits to Giblin new spouse as his dependent. The City appealed.

The Appellate Division commenced its consideration of the City’s appeal by noting that while Giblin is challenging an action by a municipality, the damages claimed flow from an alleged breach of contract. Accordingly, said the court, "the claim must be resolved through the application of traditional rules of contract law" rather than under CPLR Article 78.

The court then concluded that the City had “breached its contractual obligation” to provide health insurance benefits to Giblin new spouse. Pointing out that the CBA states that Giblin, as a retiree, "shall continue to receive" health insurance coverage for himself and his dependents…” the court observed that “Nothing in the agreement freezes benefits so as to limit coverage to people who are dependents of a retiree at the time of retirement.”

Rejecting the City’s argument that the word "continue" in the CBA supports its determination, the Appellate Division said that “when the whole sentence is read in context it says that insurance coverage will continue for retirees and their dependents, not that retirees will continue to receive the same type of coverage (family or individual).”

Further, the Appellate Division commented that the CBA did not “specifically prohibit retirees from changing their enrollment from individual to family coverage or vice versa.”

The court explained that although Giblin’s former wife was no longer eligible for coverage when they divorced, Giblin “did not request a change to individual coverage and, when he remarried, he merely desired to continue receiving family coverage as he had at the time of his retirement.”

Reading the plain language of the CBA, the Appellate Division decided that Giblin was entitled to a declaration that City must provide dependent health insurance coverage to Giblin new spouse.

The decision is posted on the Internet at:
A government official performing a discretionary function is entitled to qualified immunity unless violative of an individual's statutory or constitutional rights
Cavanaugh v Doherty, Appellate Division, 243 A.D.2d 92

Erin Cavanaugh, an Assistant Public Relations Aide employed by the State Department of Correctional Services and Thomas Doherty, Appointment Secretary in the Executive Department, became involved in a political argument at a restaurant. Their oral exchanges culminated in Cavanaugh calling Doherty an “explicitve deleted.” Doherty allegedly responded that “he would 'have her job in the morning'“.

Forty-eight hours later Cavanaugh was unemployed.

Cavanaugh sued, claiming a breach of her employment contract; abusive discharge; violation of her civil rights and other wrongdoings by Doherty, James Flateau, her immediate supervisor and John Patterson, a Correctional Services’ deputy commissioner who allegedly ordered Flateau to fire Cavanaugh because of her retort during her off-duty argument with Doherty.

Although at this stage of the proceeding the appeal essentially concerned challenges by the parties to the Supreme Court’s allowing certain claims and defenses to survive and dismissing others, the Appellate Division addressed a number of significant issues in the course of reviewing the matter.

One is of particular importance, addressing the concept of a public official’s “qualified immunity.”

The court said that a government official performing a discretionary function is entitled to qualified immunity provided his or her conduct does not violate [an individual’s] clearly established statutory or constitutional rights of which a reasonable person would have know....”

Commenting that the official has the burden of demonstrating that his or her acts enjoy a qualified immunity, the Appellate Division said that although Flateau was acting within the ambit of his official duties, as he was instructed to terminate Cavanaugh, “none of the defendants has established that they had an objectively reasonable belief that their actions did not violate clearly established rights of [Cavanaugh], particularly as it appears that [Cavanaugh’s] termination was retributive in nature for the personal affront to Doherty ... and because each was aware of or should have been aware of [Cavanaugh’s] First Amendment rights.”

The court concluded that “the defendants have not established entitlement to qualified immunity,” and reinstated Cavanaugh’s civil rights violation claims.

In contrast, the Appellate Division said that while Cavanaugh’s allegations that her employment was intentionally terminated without justification and she suffered damages as a result was sufficient to allege a prima facie tort against Doherty and Patterson, this claim against Flateau should be dismissed because, said the court, “he was acting within the ambit of his official duties.”

The opinion also notes that pubic policy prohibits the maintenance of a suit against the State or, by extension, an official acting in his or her official capacity for prima facie tort.”

The Appellate Division pointed out that two of Cavanaugh’s claims were brought against the defendants in their “official capacity.” These consisted of an alleged breach of her employment contract and an alleged violation of Section 201-d of the Labor Law. The court said that the Supreme Court properly ruled that it did not have jurisdiction over these causes of action and that they should have been filed with the Court of Claims.

The doctrine of collateral estoppel bars relitigating a complaint based on the same issues as earlier litigated

The doctrine of collateral estoppel bars relitigating a complaint based on the same issues as earlier litigated
Parker v Blauvelt Volunteer Fire Company, App. Div., 251 A.D.2d 389 [Affirmed on basis of collateral estoppel, 93 N.Y.2d 343]

It is a basic principle of law that an individual may not relitigate a claim that he or she had early presented to, and had been considered and decided by, the courts.

Kimball Parker was dismissed from his position as a volunteer firefighter with Blauvelt for insubordination following a disciplinary hearing conducted by the Orangetown Town Board.

Parker challenged his dismissal pursuant to Article 78 of the Civil Practice Law and Rules, seeking an order directing his reinstatement and monetary damages. As part of his Article 78 action Parker complained that his 42 USC 1983 civil rights had been violated.

His 42 USC 1983 civil rights action was dismissed without prejudice by a Supreme Court justice while his Article 78 appeal from his termination was transferred to the Appellate Division. The Appellate Division considered and rejected Parker’s Article 78 petition, confirming his dismissal from the fire company by the town board. [Parker v Blauvelt Volunteer Fire Company, 222 AD2d 437].

Parker then commenced a civil rights action, essentially raising the same issues previously considered in his Article 78 action. Blauvelt moved for summary judgment and the Appellate Division agreed on the grounds that the issues and facts raised by Parker were the same in both actions.

The court noted that Parker had a “full and fair opportunity to challenge and defend against them” and therefore, even if the remedy sought under 42 USC 1983 was different from those he had sought in his Article 78 action, further consideration of his 42 USC 1983 claims were barred by the doctrine of res judicata [a matter judicially acted upon] and collateral estoppel [there was a conclusive judgment in another action].

July 20, 2010

Having obtain the relief sought on the basis of one of several arguments further appeal is precluded as the individual is no longer an aggrieved party

Having obtain the relief sought on the basis of one of several arguments further appeal is precluded as the individual is no longer an aggrieved party
Hoover v DiNapoli, 2010 NY Slip Op 06127, Decided on July 15, 2010, Appellate Division, Third Department

David A. Hoover worked part time as a labor relations specialist for Erie 1 BOCES from February 1, 1988 through October 31, 1995 and obtained member service credit in the New York State and Local Employees' Retirement System in connection with that employment.

In April 2008, the State Comptroller announced new regulations for the Retirement System specifically defining how local governments and school districts should classify professional service providers as employees or independent contractors.

Hoover was told that under the new regulations, his member service credit for his work at BOCES between 1988 and 1995 was revoked as he had served with the BOCES as an independent contractor rather than an employee. Hoover filed an Article 78 petition seeking restoration of his member service credit contending that:

1. Rescinding such credit constituted “an improper retroactive application of the new regulations in violation of the NY Constitution;”

2. A violation of his due process rights; and

3. The Comptroller’s decision to invalidate his member service credit was arbitrary and capricious.

Supreme Court dismissed Hoover's state constitutional claims for failure to exhaust his administrative remedies, but, nevertheless issued a decision on the merits granting his petition on the basis of his due process claim. The court order provided that "the determination to revoke [Hoover's] service credit with Erie 1 BOCES for the years prior to 1995 is vacated and annulled."

Despite having prevailed in that he had obtained the remedy that he had sought, Hoover appealed the Supreme Court's judgment.

The Appellate Division dismissed his appeal, noted that having "obtained the full relief sought … annulment of the Comptroller's determination and reinstatement of his service credit," Hoover is no longer an aggrieved party. The fact that he had asserted multiple grounds upon which he contended that the relief he demanded could be granted, his having prevailed on the basis of one of the theories he advanced rendered consideration of his other arguments moot.

The decision is posted on the Internet at:

Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delay

Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delay
Appeal of Michael P. Thomas seeking the removal of High School Superintendent Francesca Pena, Decisions of the Commissioner of Education, Decision No. 16,090

On September 4, 2008, Michael P. Thomas a certified, tenured mathematics teacher in the New York City school district, asked Superintendent Francesca Pena to file charges against Principal David J. Jimenez for certain actions, including alleged retaliatory actions against Thomas for reporting the misuse of Title I funds and scoring irregularities on a Regents examination.

On or about November 20 2008, Pena advised Thomas that she had referred the matter to the Special Commissioner of Investigation for the New York City School District. In May 2009, Thomas wrote Pena requesting the results of the investigation, Pena did not respond to Thomas.

Thomas appealed to the Commissioner of Education seeking the removal of Pena for “neglect of duty,” contending that she had failed “to take all necessary steps to ensure the integrity of community district operations.” He also asked the Commissioner to remove other administrators “for allegedly falsifying the results of a Regents examination, retaliating against [him] for reporting such alleged scoring irregularities and the misuse of Title I funds.”

The Commissioner dismissed Thomas’ appeal as untimely.

The Commissioner said that Thomas asked that Pena investigate his allegations in 2008. After Pena informed him that she referred matter to SCI in November 2008, Thomas asked Pena for the results of the investigation in May 2009 and asked her to respond within 10 business days. Thomas argued on May 28, 2009, which he contended was the 10th business day after Pena had received his letter, the 30-day period available to him to commence his appeal began to run.

The Commissioner disagreed with Thomas’ argument. He said that Pena responded to Thomas in November 2008 “with respect to the actions complained of in this appeal.” Accordingly, said the Commissioner, Thomas’ May 2009 letter, ”like a request for reconsideration, does not extend the time within which an appeal must be commenced.”

The Commissioner explained that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown,” citing 8 NYCRR §275.16. As the affidavits of service reflect that the petition was served on the several respondent administrators in 2009 and the events complained of occurred more than 30 days prior to those dates, the Commissioner ruled that appeal filed by Thomas was untimely.

The Commissioner’s decision is posted on the Internet at:

Running for elected office could adversely affect individual’s continuation in his or her public employment

Running for elected office could adversely affect individual’s continuation in his or her public employment
Cusumano v Board of Commissioners, App. Div., 251 A.D.2d 404,

The Cusumano case shows that the decision of a public employee to run for public office may have an unexpected, and unintended, impact on his or her public employment.

In December the Franklin Square and Munson Fire Department held an election for members of its Board of Commissioners. Both Louis R. Cusumano and Theodore Braun submitted valid nominating petitions to run for a vacancy on the board and their names were placed on the ballot.

On the day of the election, Braun, a New York City police officer, asked the board to remove his name from the ballot. He said that he had learned that Section 1129 of the New York City Charter prohibited city police officers that accepted a nomination for elective office from continuing their employment with the city. The board refused to remove Braun’s name from the ballot. To further complicate matters, Braun was elected to the vacancy.

Cusumano sued, seeking an order directing that the election result be set aside, claiming that the board had “improperly failed” to honor Braun’s attempt to decline his nomination. Although a State Supreme Court justice granted Cusumano’s petition, the Appellate Division reversed that ruling.

The Appellate Division pointed out that while Section 176(7) of the Town Law allows a fire district resident to file a nominating petition, there is no provision in the Town Law authorizing the removal of a candidate’s name from the ballot once he or she has filed a lawful petition.

In addition, the court commented that as “Braun was properly nominated ... the fact that he subsequently learned that he could not continue his employment as a New York City police officer if he accepted the nomination did not disqualify him from running for office.”

Accordingly, the Court concluded that the relief Cusumano requested was not warranted because the board’s refusal to remove Braun’s name from the ballot “cannot be considered a failure to perform a duty enjoined upon it by law....”

The decision is silent as to the impact of Braun’s nomination for, and election to, the board on his employment as a New York City police officer.

Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination

Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination
Forte v Mills, Appellate Division, 250 A.D.2d 882

According to his supervisors at the Manhasset Union Free School District, physical educator teachers Garry Forte had a habit of poking female students in the back and occasionally “snapped their bra straps” during physical education class. After he failed to heed repeated warnings against engaging in physical contact with his students, he was served with disciplinary charges pursuant to Section 3020-a.

A Section 3020-a disciplinary hearing panel found Forte guilty of conduct unbecoming a teacher and insubordination. The panel recommended that Forte be dismissed from his position. The Commissioner of Education sustained the hearing panel’s determination and the penalty imposed.

Forte appealed the Commissioner’s determination. The Appellate Division rejected his appeal, finding that the determination (1) was neither arbitrary nor capricious; (2) was not affected by an error of law; and (3) had a rationale basis.

The decision points out that Forte admitted that he had been orally cautioned against touching students and that he continued to do so “as part of his motivational and instructional technique.” Based on the testimony of witnesses and Forte’s admission, the court said that it found no basis to overturn the Commissioner’s determination.

As to the penalty imposed, dismissal, the Appellate Division said that “dismissal is appropriate where a teacher, having been repeatedly warned against physical contact with students, fails to avoid such contact which, regardless of its purpose, may be interpreted by those students as sexually suggestive or harassing.”

In addition, the court pointed out that with Forte’s “wholly disregarding the progressive discipline imposed in the past,” the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: