August 31, 2010

Report alleges NYS Department of Corrections’ former Food Production Center director violated the Public Officers Law

Report alleges NYS Department of Corrections’ former Food Production Center director violated the Public Officers Law
Source: The Office of the State Comptroller

The former director of the State Department of Corrections’ (DOCS) prison food production operation and his staff routinely traded favors and gifts with favored businesses that were rewarded with millions of dollars in state purchases according to a report released by State Comptroller Thomas P. DiNapoli and State Inspector General Joseph Fisch dated August 31, 2010.

DiNapoli’s and Fisch’s audit and investigation centered on Howard Dean, the former director of the Food Production Center, and his staff. The Comptroller's Office said that DiNapoli and Fisch have forwarded the findings of their report to the Oneida County District Attorney’s Office and the State Commission on Public Integrity.

Comptroller DiNapoli said “Corruption should never be tolerated on any level. But the abuses we discovered here, at a state criminal justice agency, committed at a time when New York’s taxpayers are finding it harder and harder to make ends meet, are beyond the pale. And all of this mushroomed in a culture of acceptance at DOCS. We’re referring our findings to law enforcement and public integrity officials.”

State's Inspector General Fisch commented that “Once again, we witness another distressing spectacle by this public official who did not hesitate to violate the law and his oath of office in order to reap personal reward and benefits. For 13 years, Dean enjoyed free parties and picnics while not only steering $2.5 million in business to favored vendors, but to vendors who are prohibited from doing business in New York State.”

Among the findings:

1. In violation of the State's Public Officers Law, "for at least 13 years, Dean and other DOCS staff were provided free meals by at least two vendors – Global Food Industries (GFI) and Good Source – that had $2.5 million annually in purchases with the Food Production Center. "

"2. Dean directed Sysco Food Services to use these two vendors as suppliers, thereby guaranteeing them $1.7 million annually in business with DOCS.

"3. Sysco’s purchase of products from the South Carolina-based GFI at Dean’s direction helped Dean and GFI skirt around New York State Finance Law which prohibits state agencies from doing business directly with companies that reside in states, like South Carolina, that discriminate against NYS businesses.

"4. Likewise, Dean directed NYS Industries for the Disabled, a preferred source of state purchases, to purchase products from GFI, again allowing GFI to make money off of state purchases contrary to the law. GFI made $796,000 annually through this arrangement.

"5. Dean and his staff solicited free food and donations from vendors for an annual Christmas party and a three-day-long annual picnic. Any left-over moneys were deposited in an employee benefit fund and used for food production center employee benefits throughout the year, including morning bagels.

"In addition, the Comptroller and the Inspector General stated that 'Vendors often bid on donated items with proceeds going to the employee benefit fund. All Correctional Services employees, including those at the highest levels of the organization, were invited to the picnic at no cost. Management should have questioned how such an event could be hosted by a state agency at no cost to employees or their families.'"

"DiNapoli’s auditors found no documentation demonstrating that millions of dollars in purchases were based on open competition. In fact, one favored vendor was tipped off about the potential missing ingredient essential in the production of cheese sauce the Food Production Center wished to utilize. Because none of the other vendors had this inside information, the favored vendor received the state’s business.

"Internal controls that might have prevented Dean from engaging in this conduct were virtually non-existent at DOCS. One supervisor, Russell DiBello, former Correctional Services Chief Fiscal Officer, stated that he saw no need to monitor Dean – despite that Dean managed a $55 million budget – because he received no inmate complaints about food.

"DiNapoli and Fisch have recommended that DOCS officials institute safeguards to ensure these abuses don’t occur in the future, and assist the Oneida County District Attorney and the State Commission on Public Integrity as needed. State law requires the DOCS commissioner to report to the Governor, Comptroller and leaders of state legislative committees what corrective action the department has taken, and if action is not taken, why."

The complete text of the report is posted on the Internet at:

Commissioner rules excessed teacher’s failure to request or indicate any assumption of the teacher’s retention on the preferred list a fatal omission

Commissioner rules excessed teacher’s failure to request or indicate any assumption of the teacher’s retention on the preferred list a fatal omission
Appeal of Staci Beauchamp and the City School District of the City of Glen Cove and Melanie Tuthill Odone, Decisions of the Commissioner of Education, Decision #16,123

Staci Beauchamp appealed the decision of the Board of Education of the City School District of the City of Glen Cove to appoint Melanie Tuthill Odone as a reading teacher. Beauchamp, a tenured reading teaching, accepted a .4 part time reading teacher position when she was advised that her full time position was being abolished effective September 1, 2006.

Although Beauchamp initially had accepted the .4 part time appointment on June 13, 2006, she submitted her resignation from the position on June 23, 2006. The Commissioner’s decision indicates that the Board subsequently “accepted” the resignation.*

In early 2009, Beauchamp learned of a reading teacher vacancy in the district. In response to her inquiry concerning the availability of the position, she was told by the Assistant to the Superintendent for Personnel that as she had resigned from her [part time] position, “she did not qualify for reappointment.”

Tuthill Odone was subsequently hired to fill the reading teacher position and ultimately the issue was appealed to the Commissioner.

Beauchamp argued that she had been “fraudulently and/or falsely induced to resign by the board’s Executive Director of Human Resources” who had told her that “a resignation was a condition precedent to working in another school district and remaining on the preferred eligibility list in Glen Cove.”

The district, on the other had, contended that Beauchamp relinquished all rights to a teaching position in the district when she submitted her unconditional resignation and “that at no time did any agent or employee of the board make any false statement to [Beauchamp] in order to induce her to resign her teaching position.”

The Commissioner rejected Beauchamp’s appeal commenting that “it is clear that a teacher who severs his or her service with a district, through retirement or resignation, no longer has recall rights pursuant to Education Law §§2510 and 3013” [citations omitted].

Further, said the Commissioner, “[A]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted by school authorities,” citing Schmitt v. Hicksville UFSD No. 17, 200 AD2d 661.

The Commissioner said that Beauchamp did not prove that her resignation was involuntary and although the Executive Director’s alleged false statement may have provided motive for her resignation, “it cannot be said that her will was overcome and that she was not capable of exercising free choice.” Thus, the Commissioner ruled, Beauchamp’s allegations of duress and coercion must be dismissed.

The Commissioner also rejected Beauchamp’s claim that her resignation was a nullity because it was entered into under a mutual mistake of fact, i.e. that “she had to resign to work elsewhere and be placed on the school district’s preferred eligibility list.”

Significantly, the Commissioner said the Beauchamp failed to demonstrate that there was a mutual mistake of fact and that the school district justifiably assumed that she, “by submitting a letter of resignation, wished to sever her ties with the district” as her letter of resignation did not indicate that “she wished to remain on the preferred eligibility list, or indicate any expectation that she would so remain.”

Except where required by law, acceptance of a resignation is not required for it to take effect; all that is required is that the resignation be delivered to the appointing authority before it is withdrawn or rescinded by the officer or employee. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district "and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied]. See, also, §2110.3 of the Education Law.

The decision is posted on the Internet at:

COBRA web page updated

COBRA web page updated
DOL press release

The Department of Labor's Employee Benefits Security Administration has updated its COBRA web page to add a fact sheet and FAQs on maintaining health coverage after the COBRA premium reduction ends. The updates are posted at:

and at,


Jurisdiction to consider unilateral changes in terms and conditions of employment

Jurisdiction to consider unilateral changes in terms and conditions of employment
Roma v Susquehanna Valley CSD, 92 N.Y.2d 489 [246 AD2d 714 reversed]

The primary issue on this appeal is whether a complaint of a public employer’s unilateral change in a term and condition of employment that is expressly covered by its collective bargaining agreement (CBA) with an employee organization lies within the exclusive jurisdiction of the State Public Employment Relations Board (PERB), or may be resolved through the grievance procedures of the CBA.

The Civil Service Law § 205 (5) (d) jurisprudence of PERB, which in the view of the Court of Appeals correctly reflects the legislative intent of the enactment, points the parties to a resolution of their dispute in this case through the nonbinding grievance procedures of the CBA (subject to judicial review), rather than through an improper employer practice charge before PERB for failing to negotiate in good faith.

Consequently, the high court said that the Appellate Division erred in dismissing the petition on the ground that PERB had exclusive subject matter jurisdiction over this controversy. Agreeing with Supreme Court that the CBA unambiguously precluded the school district’s unilateral action here, the Court of Appeals said that the judgment of Supreme Court should be reinstated.

The text of the ruling is filed on the Internet at:[Registration required]

Vesting health insurance rights

Vesting health insurance rights
Handy v Schoharie County, Appellate Division 244 A.D.2d 842

In the Handy case, the Appellate Division said a legislative body may adopt of a resolution that alters a retiree’s health insurance benefits and that such a change can be legally applied to people who retired prior to the vote to change benefits.

In December 1995, the Schoharie County Board of Supervisors adopted three motions changing its policy with respect to its providing County retirees health insurance benefits.

Under the new policy, any elected County official who completed 10 or more years of service would be entitled to “health insurance” at the County’s expense upon retirement. Prior to this change Schoharie paid the health insurance premiums for the retiree and his or her spouse if the retired employee had completed five years of County service and was receiving a state retirement allowance.

David E. Handy retired from the Board of Supervisors on December 31, 1995, having served as a member since 1978. The Board, however, at its January 19, 1996 meeting rescinded several December 1995 motions relating to health insurance for retirees.

The Board next reinstated its former policy with respect to providing health insurance to its retired employees. Because he was not receiving a state retirement allowance, the County said it would not pay for Handy’s health insurance in retirement.

Handy sued, contending that under the Board’s December 1995 actions he was “entitled to health insurance paid at [Schoharie County’s] expense as [he had] met the requirement of a vested right.”

The Appellate Division disagreed, holding that the County was under no contractual obligation to provide [Handy] with health insurance and, accordingly, it did not act arbitrarily or capriciously in terminating that benefit.

The Handy decision should be contrasted with two other retiree benefits cases: Della Rocco v City of Schenectady and Andriano v City of Schenectady.

The Schenectady cases differed in that they concerned executive action as opposed to legislative action and Taylor Law agreements were involved and held to control.

On August 28, 1997, State Supreme Court Justice Robert E. Lynch ruled that Schenectady must provide fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the municipality is bound by the Taylor Law agreement in effect when employees retired.

The fact that the Taylor Law agreements had expired did not alter the municipality’s obligations to retirees under them.

The key element was the existence or absence of a contractual obligation to provide retirees a benefit.

The Appellate Division pointed out that an act of a legislative body will be treated as a contract only when the language and the circumstances manifest a legislative intent to create a private right of a contractual nature.

As an illustration, the Court commented that in Cook v City of Binghamton, 48 NY2d 323, the Court of Appeals said that “certain types of legislative acts, including those fixing salaries and compensation ... are not presumed to create a contract.”

Quoting from the U.S. Supreme Court’s ruling in Dodge v Board of Education, 302 US 74 at page 79, the Court of Appeals said that “the presumption is that such a law is not intended to create a private contractual right or vested right but merely declares a policy to be pursued until the [legislative body] shall ordain otherwise.”

The Appellate Division said that it found nothing in the December 1995 actions by the Board that it “intended to fetter its power in the future” with respect to health insurance. “Rather than evincing an intent to create a private contractual or vested right, the motions are more reasonably read as declarations of [the Board’s] policy.”

Notwithstanding the fact that Handy would have enjoyed health insurance benefits at the expense of the County had the December motions not been repealed, the Appellate Division decided that the Board’s December 1995 actions did not create a contractual property right enforceable against Schoharie County.

As to any claim that the Board’s action gave Handy a vested retirement benefit, in Lippman v Sewanhaka Central High School District, 66 NY2d 313, the Court of Appeals decided that health insurance for retirees is not a retirement benefit protected against being diminished or impaired by the State’s Constitution.

August 30, 2010

Demoted whistle blower entitled to reinstatement to the higher-level former position or equivalent and lost salary plus “predetermination interest”

Demoted whistle blower entitled to reinstatement to the higher-level former position or equivalent and lost salary plus “predetermination interest”
Tipaldo v Lynn as Commissioner of the NYC Department of Transportation, 2010 NY Slip Op 06467, decided on August 24, 2010, Appellate Division, First Department

In August 1996, John Tipaldo, a long-time manager with the New York City Department of Transportation (DOT), was promoted to the position of Acting Assistant Commissioner for Planning. Tipaldo was earning an annual salary of $55,000 at the time and was advised that he would be given a $25,000 salary increase if his appointment became permanent.

Less than a year later Tipaldo was demoted from the Acting Assistant Commissioner position. As a result of the demotion, Tipaldo appointment to Assistant Commissioner position did not become permanent and he never received the $25,000 increase in salary.

Tipaldo challenged his demotion citing Civil Service Law §75-b, contending the demotion was in retaliation for his having reported to the Department of Investigation that a superior violated bidding rules (see 48 AD3d 361).*

The instant appeal was from an order following a nonjury trial on the issue of damages following the Appellate Division’s earlier ruling. This appeal challenged Supreme Court's awarding Tipaldo $175,000 in back pay, but without interest and the court’s directive that Tipaldo reinstated to the same, or to an equivalent position to the one that he had held before the retaliatory personnel action that gave rise to his initial lawsuit.

The Appellate Division affirmed the lower court’s ruling with respect to Tipaldo’s reinstatement but said that the award of back salary had to be redetermined because:

1. Tipaldo was entitled to an interest award as provided by Civil Service Law section 75-b; and

2. The record supports Tipaldo's request that he be reinstated "to the same position held before the retaliatory personnel action, or to an equivalent position" as provided by Labor Law §740[5][b]).

The Department, objecting to Tipaldo's reinstatement, argued that he was not entitled to such reinstatement as he had declined promotions 2000, 2001 and 2002. The Appellate Division rejected the Department's theory, commenting that the undisputed testimony of his current supervisor was that at the time of those offers of promotion Tipaldo feared that any promotion would be met with retaliatory action by agency personnel.**

As to the amount of back salary awarded by Supreme Court, the Appellate Division noted that Tipaldo had called an economics expert to establish the amount of back pay to which he was entitled. The expert testified that Tipaldo had lost $388,243 in earnings as a direct result of the retaliatory actions taken by defendants. Tipaldo’s expert also testified that, applying the statutory interest rate of 9% to the lost earnings, Tipaldo was owed a total of $662,721.

In contrast, said the Appellate Division, Supreme Court “without any explanation for how it arrived at the figure, awarded Tipaldo $175,000 in back pay” and denied Tipaldo’s request for pre-determination interest.

Significantly, the Appellate Division noted that the Department “chose not to call their own expert to offer an alternative theory of the earnings which plaintiff would have lost had he not been the victim of retaliation, or to explain why plaintiff's expert's analysis was flawed in any respect.” Thus, said the court, “the only expert opinion before us is [Tipaldo's] and we see no reason to disturb it.”

Further, the Appellate Division held that that predetermination interest is generally available to whistle blowers suing pursuant to Civil Service Law §75-b.

* See Tipaldo v. Lynn, 48 AD3d 361 for the Appellate Division’s ruling in this earlier case.

** The Appellate Division indicated that the fact that Tipaldo declined such promotions did not militate against honoring his request for reinstatement to the higher-level position at this time.

The instant decision is posted on the Internet at:

The earlier decision, 48 AD3d 361, is posted on the Internet at:

Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence

Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence
NYC Administration for Children’s Services v S.B., OATH Index #2425/10

The Administration for Children's Services sought to place a child welfare specialist on involuntary leave pursuant to Civil Service Law Section 72 because of alleged mental disability.

Although S.B. had a satisfactory work history with the Administration, OATH Administrative Law Judge Ingrid Addison found that the evidence, including testimony of S.B.'s colleagues that they felt concerned for their safety, examples of bizarre and rambling emails respondent had sent, and the expert reports of two psychiatrists demonstrated that S.B. was mentally unfit for duty.

Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.

The decision is posted on the Internet at:

Agility tests for firefighters must be validated as job related

Agility tests for firefighters must be validated as job related
Pietras v Farmingdale Fire District, USDC EDNY, 94-CV-0673

U.S. District Court Judge Denis R. Hurley ruled that an agility test for a volunteer firefighter unlawfully discriminated against Victoria Pietras because of her gender.

Pietras, a probationary volunteer firefighter with the Farmingdale Volunteer Fire Department, was required to drag to drag a 280 pound fire hose 150 feet in four minutes. Her best time was four minutes, forty-seven seconds. Rejected for full firefighter status, she sued contending that this portion of the agility test had a disparate impact on women in violation of Title VII of the Civil Rights Act of 1964.

Although Judge Hurley ruled that the Department “established that the contents of the test are job-related” he decided that “the same may not be said of the requirement that it be completed within four minutes.”

How was the four-minute hose drag requirement determined? The Department said that it gave the test to 44 members of the Department, including probationary and junior members. It found that the average time to complete the task was “about three and one half minutes.” It then added an additional half-minute for “leeway,” arriving at the four-minute requirement.

This process, said the Court, was insufficient to establish that “the four-minute time limit is anything other than arbitrary.”

Critical to Judge Hurley’s analysis was his finding that “the purpose of the test was to distinguish competent firefighter candidates from those without the necessary physical abilities to do the job.”

Judge Hurley concluded that to set a standard there had to be some type of job analysis but there was nothing in the record to indicate that such a study had been made, either before administering the test or “after the fact.” This, said the Court, indicated that the standard set by the Department had not been “validated.”

Judge Hurley directed the Department to reinstate Pietras, noting that it could administer another agility test to her as a pre-requisite to her becoming a full member but that any such test had to comply with the relevant federal and state civil rights laws.

When appealing individual’s employment status all parties that may be affected must be named and served

When appealing individual’s employment status all parties that may be affected must be named and served
Five Residents v Liberty CSD, Decisions of the Commissioner of Education, Decision #13861

If a party wishes to have the Commissioner of Education review an issue, it is critical that all parties who might be affected by the Commissioner’s decision be named in the petition. This point was made clear in an appeal filed by five residents of the Liberty Central School District.

A five-year employment contract between Superintendent and the District was to terminate June 30. Prior to June 30, the parties signed a new contract providing for the Superintendents employment for an additional two years.

The resident-appellants challenged the extension of the contract, claiming it violated the “minimum/maximum” term provisions set out in Section 1711(3) of the Education Law.*

The Commissioner dismissed the petition without considering its merits. He commented that the residents had failed to name a necessary party -- the District’s Board of Education. The Commissioner said that “since the board’s agreement with the superintendent would be adversely affected by a decision in favor of the [residents], the board is a necessary party to this appeal.”**

* Section 1711(3) provides, in pertinent part: “a board of education may enter into a contract with such superintendent for a period of not less than three and not more than five years,”

** In addition, the Commissioner said that he would have had dismiss the appeal event if the board had been named in the petition as the issue had become moot as a result of the Superintendent’s having resigned and thus the contract that the residents sought to have annulled was no longer in effect.

August 27, 2010

New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine

New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine
NYC Fire Department v Rivera, OATH Index #3416/09

OATH Administrative Law Judge Julio Rodriguez recommended termination of Carlos Rivera, a New York City Fire Department EMT.

Rivera tested positive for cocaine in a random workplace drug test -- registering more than 250 times the official cut-off.

The Department had previously sent him for voluntary rehabilitation three times and afterwards reinstated him to his position.

In his defense Rivera asserted that his drug addiction was a disability requiring accommodation.

ALJ Rodriguez disagreed, finding that Rivera did not establish that he was disabled within the relevant definition of disability set out in the federal Americans with Disabilities Act or the New York State Human Rights Law.

The decision is posted on the Internet at:

Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System

Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System
Soronen v Comptroller, 244 A.D.2d 842

William Soronen, Jr., was a temporary aide to a New York State Senator during the 1974 and 1975 legislative sessions. He worked on a part-time basis. In July 1975 Soronen accepted a position with a private law firm. In 1978 he was appointed as a confidential law clerk to a State Supreme Court justice and joined the New York State Employees’ Retirement System [ERS].

Soronen subsequently applied for retroactive membership in ERS based on his service with the State legislature in 1974 and 1975 pursuant to Section 803 of the Retirement and Social Security Law.

ERS rejected his application on the grounds that he had a “break in service.” Soronen appealed, contending that he had not reapplied for employment with the State legislature, although his employer would have approved such part-time employment, because he wanted to care for his son. He attributed his three-plus year break in public service to childcare, claiming that Section 803(b)(2) allowed certain breaks in service “attributed to the birth of a child... or care for such child.”

The Appellate Division affirmed ERS’ determination, noting that Soronen’s break in public service was due to the end of the 1975 legislative session and his termination from his temporary employment, not childcare. The Court also commented that Soronen had not demonstrated that “a public employment position was definitely available to him during both the 1976 and 1977 legislative sessions and that he turned [them] down because of child care requirements.”

Disciplinary action could affect eligibility for Unemployment Insurance

Disciplinary action could affect eligibility for Unemployment Insurance
Cuevas v Sweeney, 246 A.D.2d 718

Sometimes an employee who has been dismissed from his or her position as a result of disciplinary action will file for unemployment insurance benefits. Typically the Unemployment Insurance Board will hold that the individual is disqualified from receiving such benefits because his or her employment was terminated for misconduct. Can the board rely on the disciplinary determination as the basis for denying the claim? Yes, it may, as the Cuevas decision by the Appellate Division illustrates.

Naptale Cuevas, a Mental Hygiene Therapy Aide employed by a State agency, was found guilty of abusing and threatening his supervisor with physical harm. An arbitrator issued the decision after a disciplinary grievance hearing conducted in accordance with the provisions of a Taylor Law agreement.

The arbitrator ruled that dismissal was appropriate based on Cuevas’ being found guilty of the charges and the fact that Cuevas “previously had carried out a physical assault upon a security guard.” The Court said that the Board properly gave collateral estoppel* effect to the arbitrator’s determination when it ruled that Cuevas had lost his job under disqualifying misconduct.

* The doctrine of collateral estoppel is used in situations where the conclusiveness of a judgment in a prior action involving the same parties is applied in a subsequent action involving a different claim, here a claim for unemployment insurance benefits.

August 26, 2010

Disqualifying an applicant for employment based on psychological evaluations

Disqualifying an applicant for employment based on psychological evaluations
Coffey v Kampe, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Coffey case concerns the disqualification of an individual who wanted to become a police officer because he did not pass the psychological evaluation portion of the Police Officer examination. Section 50 of the Civil Service Law allows a municipal civil service commission to disqualify an applicant if, after passing the required examination, he or she is found not to meet any of the announced requirements.

Coffey took the written test for Nassau County police officer. He scored highly on the written test and was ranked 70th among 70,000 candidates. He also passed a background investigation. But he was disqualified based on the results the third part of Nassau County’s screening process: a three-tiered psychological test battery.

Coffey’s objected, but his appeal was dismissed by the Commission. He sued, contending that his disqualification was arbitrary or capricious. The Commission replied that it had acted in accordance with all relevant rules, policies, and standards, which it had adopted in order to properly administer the provisions of Section 50 of the Civil Service Law.

According to the decision, the Commission found that Coffey failed the psychological screening process because he did not “score within an acceptable range on the objective psychological screening test, and failed in the personal psychological test and interviews.”

The Commission’s psychological screening process had been reviewed and approved by the Appellate Division [Keryc v Nassau County Civil Service Commission, et al, 143 AD2d 669].

New York State Supreme Court Justice O’Connell said, “Courts have also upheld determinations of disqualification, where, as here, the Commissioner of Civil Service found that an applicant was unqualified to serve in a law enforcement position for poor results on standardized Minnesota Multiphasic Personality Inventory (MMPI) exam, among other reasons,” citing the Appellate Division’s decision in Conlon v Commissioner of County of Suffolk, 640 NYS2d 145.

Under the Commission’s rules, the applicant has the burden of establishing his or her qualifications for appointment as a police officer. In dismissing Coffey’s petition, Justice O’Connell said that “where, as here, [the individual] was not actually an employee, but an applicant for appointment, he [or she] must demonstrate that the Commission was arbitrary and capricious, or acted in manner without a rational basis in not making the appointment. The Court ruled that Coffey had not proved this to be the case.

In addition, Justice O’Connell found that Coffey had failed to disclose certain information to the county including five military disciplinary proceedings, two of which resulted in disciplinary actions.

The full text of the ruling is at:

Discontinuing certain disability benefits

Discontinuing certain disability benefits
Town of Cortland v PERB, NYS Supreme Court, [Not selected for publications in the Official Reports]

The Town of Cortland unilaterally adopted policies and procedures that terminated certain benefits that were being paid to police officers disabled in the line of duty if they had received such benefits for more than one year. These benefits were not expressly provided for by Section 207-c of the General Municipal Law. In support of its action, the town cited Section 71 of the Civil Service Law [Worker’s Compensation Leave], which authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.

The town also adopted procedures requiring (1) “timely notice” of any job-related injuries, (2) a time limit for appealing proposed light duty assignments and (3) a requirement that police officers claiming Section 207-c benefits charge any lost time to accumulated leave credits pending a determination of their eligibility for such benefits.

A state Supreme Court justice upheld a PERB ruling that the town’s unilateral adoption of such policies and procedures constituted a violation of Section 209-a(1)(d) of the Taylor Law. The court affirmed PERB’s order directing that these policies and procedures be rescinded. If such changes are to be implemented, they must be collectively negotiated.

The court stated that the submission of such policies and procedures to the bargaining process would not have any adverse effect upon Cortland’s ability to exercise any of the rights, which it is accorded under General Municipal Law Section 207-c.

Because the issue was settled under the Taylor Law, the court did not address the town’s innovative argument that Section 71 of the Civil Service Law can serve as statutory authority for discontinuing certain benefits for officers who had been absent because of a work connected injury for one year or longer.

Civil Service Law Section 71 [Workers’ Compensation Leave] applies to employees who have been “separated from service” because of a work-related injury or disease as defined in the Workers’ Compensation Law. If the injury did not “permanently incapacitate” the individual, Section 71 mandates that the public employer give the disabled employee a leave of absence for at least one year. Section 71 also authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.

The key issue here is what legislature meant by the term “separated from service.” While “separated” is not defined in the statute, reading Section 71 in its entirety suggests that it refers to a situation where the individual is physically unable to report to work rather having been “removed” from his or her position.

Application to Sections 207-a and 207-c: An employee who is receiving benefits under GML 207-a or 207-c may be physically unable to report to work. And some individuals who receive benefits under 207-a or 207-c also receive worker’s compensation benefits. Does this mean at least some employees on 207 leaves are “separated from service” within the meaning of Section 71? And do the provisions of Section 71 therefore apply to theses public employees receiving benefits under 207-a or 207-c?

Courts have not yet ruled on whether Section 71 is applicable in Section 207-a or 207-c situations. However, if the issue is litigated in the future, it is quite possible that courts will conclude that Section 71 simply does not apply in Section 207-a and Section 207-c situations.

The reason is that neither Section 207-a nor Section 207-c authorize the separation of an employee injured in the line of duty. Sections 207-a and 207-c appear to view disabled individuals as remaining employees who are subject to recall upon the termination of the disability or, under appropriate circumstances, assigned to perform light duty. In fact, Sections 207-a and 207-c provide for the continuation of compensation until his or her retirement, attaining the mandatory age of retirement or such other time as the individual is no longer qualified for such benefits. Arguably, the event of separation or termination in the sense referred to in Section 71 does not appear to occur in 207-a or 207-c situations.

On the other hand, the courts might well view the provisions of Section 71 to be triggered in a situation in which Section 207-a or Section 207-c salary payments are discontinued by the employer and the individual fails to return to duty, claiming that his or her disability prevents his or her doing so.

Under these facts, the individual, in effect, concedes that his or her absence is due to a workers’ compensation injury He or she has been separated from service -- i.e., cannot report for duty -- and thus the employer can deem that he or she is entitled to Section 71 leave by operation of law. Such a situation is clearly distinguishable from the employee’s status under Section 207-a or Section 207-c where he or she is physically continued on the payroll and thus has not been “separated.”

Another distinguishing element: Section 71 applies only in situations where the individual is determined not to be permanently incapacitated as a result of an occupational injury or disease. In contrast, Section 207-a and 207-c benefits are provided regardless of whether the individual’s work related injury is determined to have resulted in a temporary disability or a permanent incapacity.

Other cases: Other cases dealing with discontinuing certain benefits to individuals being paid pursuant to Section 207-a or Section 207-c include Chalachan v City of Binghamton, 55 NY2d 989, [contractual right to payment for accrued vacation credits while individual was receiving Section 207-a benefits] and PBA, Village of Walden, 30 PERB 3053, [discontinuation of a past practice that provided “contractual benefits” for vacations and other leaves to persons receiving Section 207-c benefits].

In Chalachan the Court of Appeals said that disabled firefighters were entitled to compensation and medical payments as a matter of law but “any additional benefits must be expressly provided for in the agreement....”

In Walden PERB observed that the Taylor Law agreement was silent as to such payments and found that they had been extended to disabled officers “only pursuant to a practice developed over time.” PERB ruled that Walden had not violated Section 209-a.1(d) when it unilaterally discontinuing its past practice.

PERB noted the PBA’s complaint was a “noncontract grievance,” and under the terms of the contract the “final disposition of past practice grievances” was left to the Village Manager. Accordingly, PERB concluded, “... the language in the ... [negotiated] grievance procedure vests the village with the right to continue or discontinue past practices in its discretion.”

August 25, 2010

ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record

ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record
NYC Fire Department v Gill, OATH Index #1871/10

Although the New York City Fire Department sought the termination of Harold Gill’s employment as a firefighter after he tested positive for cocaine in a random drug test, OATH Administrative Law Judge Faye Lewis recommended that the termination be stayed to permit Gill to retire in light of his unblemished 29-year record of service with the Department.

ALJ Fay also recommended that the Gill pay a substantial fine.

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

A public employee's freedom of speech with respect to statements made to the press

A public employee's freedom of speech with respect to statements made to the pressHarman v. City of New York, CA2, 140 F.3d 111.

Two New York City agencies, the Human Resources Administration [HRA] and the Administration for Children’s Services [ACS] adopted policies [Executive Orders 101 and 641] requiring employees to obtain agency permission before speaking to the media concerning any policies or activities of the agency.

The City claimed that the policies were necessary to (1) meet the agencies’ obligations under federal and state law to protect the confidentiality of reports and information relating to children, families, and other individuals served by the agencies; and promote the effective operation of the organizations.

Rosalie Harman and other employees challenged these policies on the grounds that they violated the First Amendment rights of the workers. A federal District Court judge agreed and struck down the policy. The Second Circuit Court of Appeals [New York] upheld the District Court’s ruling.

The case began after Harman, a CWA employee, was suspended because of her statements to ABC News concerning the death of a six-year-old, Elisa Izquierdo. It was alleged that the child was beaten to death by her mother. The child’s death became the subject of intense media scrutiny when it was revealed that CWA had received numerous reports about the child before her death.

The court found that Harman had been disciplined for stating to the press that “the workers who are considered the best workers are the ones who seem to be able to move cases out quickly,” and, “there are lots of fatalities the press doesn’t know anything about.”

In affirming the District Court’s ruling that the gag orders were unconstitutional, the Circuit Court said:

1. Individuals do not relinquish their First Amendment rights by accepting employment with the government.

2. The Supreme Court has recognized that the government “may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large. [U.S. v National Treasury Employees Union, 513 US 454].

3. In evaluating the validity of a restraint on government employee speech, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” [Matter of Pickering, 391 US at 568].

4. Pickering’s balancing test applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest” [Connick v Myers, 461 US 138].

5. Where its employee speaks on matters of public concern, the government bears the burden of justifying any adverse employment action [Rankin v McPherson, 483 US 378].

It was undisputed that many federal and state laws require ACS and HRA records, reports, and information relating to specific children or families, be kept confidential. In fact, disclosure of statutorily confidential information, or failure to take reasonable security precautions that leads to such disclosure, is a misdemeanor under state social service provisions.

Nevertheless, the Circuit Court concluded that the gag orders clearly aim at speech that is of considerable importance to the public. “Indeed,” the opinion notes, “discussion regarding current government policies and activities is perhaps the paradigmatic matter[s] of public concern.”

Harman’s speech, according to the decision, concerned the priorities and effectiveness of the CWA, and obviously is of interest to the public whom the agency serves. Therefore, the city bears the burden of demonstrating that the challenged policies are necessary to the efficient operation of the agencies.

Among the justifications advanced by the city was its assertion “that the agencies will not prohibit employees from commenting on the non-confidential operations of the agency once they have ensured that the proposed speech is consistent with the efficient and effective operation of the agency.” However, such conditions do not satisfy free speech requirements, said the Court, because “even according to this interpretation, the regulations clearly interfere with employees’ ability to communicate their views to the media.”

The kind of approval procedure mandated by the city is generally disfavored under First Amendment law because it “chills potential speech before it happens”; it allows the agencies to determine in advance what kind of speech will harm agency operations instead of punishing disruptive remarks after their effect has been felt. For this reason, the court decided, the regulations run afoul of the general presumption against prior restraint on speech.

The Circuit Court affirmed District Court’s decision, ruling that Executive Orders 101 and 641 were unconstitutional infringements on the First Amendment rights of city employees.

The full text of the opinion is posted at:

Using e-mail as evidence in disciplinary actions

Using e-mail as evidence in disciplinary actions
Strauss v Microsoft, USDC SDNY, Lexis 7433

Employers and employees are discovering that with the increased use of electronic mail [e-mail], records thought not to exist may be hidden in computer files. Accordingly, employers are now reviewing computer backup tapes to find evidence of employee misconduct for use in disciplinary actions while employees are using the same sources to discover incriminating evidence of employer wrongdoing such as unlawful discrimination or sexual harassment.

The Strauss case illustrates this trend. Strauss, an employee of Microsoft, alleging she was not promoted because of gender discrimination. Microsoft’s efforts to have her charges summarily dismissed failed when Strauss introduced “explicit e-mail messages from her supervisor” that she found on backup tapes during the discovery phase of litigation.

Courts are usually disposed to granting motions that “appear reasonably calculated to lead to the discovery of admissible evidence.” The fact that the material sought is in electronic rather than a traditional paper form has not been a barrier to approvals.

In another case, Davidian v O’Mara, [USDC TN, 2-97-0020] a newspaper asked a federal district court to allow it to obtain information stored on City of Cooksville [Tennessee] employee’s computer hard drives under the state’s Freedom of Information Law. The newspaper wanted to find out the “web sites” that may have accessed through the City’s computers by its employees by reviewing the “cookie files” stored on the drives.

Originally the city said the newspaper had to pay for the information -- over $300 -- but later decided to refuse to produce the information, claiming the computer files were not public records. However, “cookie files” are like “telephone logs” according to some attorneys involved in First Amendment litigation and therefore must be produced under “Freedom of Information.”

What about employee claims that “personal e-mail” is private and not subject to scrutiny by the employer. As this is still an issue unsettled by the courts, many employers are advising employees that:

1. Workers should not have any “expectation of privacy” with respect to any information, official or personal, prepared using the organization’s computer equipment; and

2. The employer may periodically monitor or review computer files prepared using company equipment.

In some case, unions have attempted to include “employee privacy” provisions in collective bargaining agreements.

August 24, 2010

Official misconduct

Official misconduct
People v Lynch, Rockland County Court, [Not selected for publication in the Official Reports]

Kevin Lynch, a member of a school board, was charged with “Official Misconduct” [Penal Law Section 195 et seq] as the result of his voting in favor of the district’s purchasing health insurance policy recommended by a consultant hired by the school district. Lynch allegedly had a “secret arrangement” with the consultant and his employer, the court said. After the district had accepted the health insurance plan recommended by the consultant, Lynch “received approximately $107,000 in commissions....”

Section 195.02 provides that a public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit he or she knowingly refrains from performing a duty that is imposed upon him or her by law or is clearly inherent in the nature of his or her office.

Lynch contended that Section 195.02 was unconstitutionally vague because there the law did not set out a standard that could be used to determine conduct that was “clearly inherent in the nature of an office.”

Essentially Lynch argued that the Section 195.02 “fails to provide a clear and unmistakable warning as to the acts which will subject one to criminal punishment.” Judge Kelly, however, said “the essential characteristic of official misconduct is that public servants are under an inescapable obligation to serve the public with the highest fidelity.”

Did Lynch’s vote on the health insurance contract constitute “official misconduct?” Judge Kelly thought it did, noting that “... the object of the official misconduct statute is to punish a breach of duty committed with the requisite culpable state of mind ....” Here, said the Court, the evidence reasonably supports the charge that Lynch failed to perform a “duty clearly inherent in the nature of his office.” In addition, said the Court, Lynch had an ethical obligation to perform said his duties free from conflicts and to disclose such conflicts.

According to the Court, Lynch took an oath of office and was provided with an ethics policy enacted pursuant to General Municipal Law Section 806(a). This policy required that, “[i]f [Lynch] participates in the discussion or gives official opinion on any legislation before the Board he will publicly disclose on the official record the nature and extent of any direct or indirect financial or other private interest he has in such legislation.” The policy also prohibited Lynch from “solicit[ing] or accept[ing] any commission, expense, paid trips, or anything of value from individuals or companies who are vendors or potential vendors to the district....”

Judge Kelly concluded that a school board trustee has a duty to procure insurance for the school district "free from conflict” and dismissed Lynch’s motion seeking to have the criminal action against him quashed.

The full text of the ruling is at:

Individual's refusal to participate in a PERB administrative hearing deemed a failure to prosecute his or her complaint

Individual's refusal to participate in a PERB administrative hearing deemed a failure to prosecute his or her complaint
Armata and United Federation of Teachers, 30 PERB 4713

Rebeca Armata elected not to attend the scheduled PERB hearing. Her complaint was dismissed on the grounds that she had failed to prosecute it. Armata then filed charges with PERB alleging that the United Federation of Teachers had violated its duty of fair representation.*

Armata had boycotted a PERB hearing. She had asked PERB’s Administrative Law Judge [ALJ], Angela M. Blassman, to issue nine subpoenas to compel the attendance of witnesses she wished to question such as the school district’s director of personnel, UFT officers and others. Blassman issued a subpoena for one of the witnesses but denied Armata’s other requests.

Armata told the ALJ that she objected to Blassman’s decision and said that “if PERB changes its position (and issues the remaining subpoenas) ... we’ll be happy to attend the hearing.” When Armata failed to appear, the UFT [and the School District] moved to dismiss the charges based on Armata’s failure to appear.

Blassman, characterizing Armata’s action as a “failure to prosecute,” granted the motion, commenting that Armata “flatly refused to appear for the hearing unless I changed my ruling regarding her subpoena requests.”

Blassman’s rationale for the dismissal was that “a party’s intentional refusal to appear at a hearing unless PERB rules in that party’s favor evidences an intentional disregard of PERB’s process and leaves me no choice but to dismiss the charge.” According to Blassman, “to hold otherwise would improperly allow a party, instead of PERB, to control the conduct of PERB’s proceedings and would permit a party to hold PERB and all other parties hostage to that party’s requests.”

The case raises the question: What should a party do if the ALJ declines to rule in its favor concerning procedural issues such as issuing a subpoena? The answer is simple. The proper course of action is for the party to proceed with the hearing and prosecute, or defend, the charge. If necessary, the party could appeal the ruling to PERB, including the denial of any of its procedural motions by the ALJ.

* The New York City Board of Education was also involved in this case as a “statutory party pursuant to Section 209-a.2 of the Civil Service Law” and had filed an answer denying all of Armata’s material allegations.

August 23, 2010

Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit

Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit
CSEA Local 1000, v PERB, Appellate Division, 248 A.D.2d 882

May a public employer unilaterally seek to reallocate certain titles to a higher salary grade, if such an action serves to remove employees from a bargaining unit?

Monroe County submitted a proposal to the County Legislature to upgrade county physical and occupational therapists. Approval of the proposal would remove 12 of the positions from the negotiating unit represented by CSEA.

CSEA Local 1000, contending that Monroe could not do this without first negotiating the proposed change with the union, filed an unfair labor practice charge with PERB. The complaint alleged that “the County engaged in bad-faith negotiations” and that its “tactics” were eroding the bargaining unit.

PERB reversed an administrative law judge’s ruling that the County violated Section 209-a(1)(a) and (d) when it unilaterally reallocated these titles to higher salary grades and the unilateral wage increase applied to bargaining unit titles was a per se violation of Section 209-a(1)(a).

PERB held that the reallocation of employees to a higher salary grade was not a mandatory subject of collective bargaining. In response, CSEA appealed to challenge PERB’s findings and conclusions.

The Appellate Division probed PERB’s rationale for its ruling and found it was based on an earlier decision by the Appellate Division holding that the “allocation of positions to salary grade is primarily related to a ‘mission’ of an employer and not to terms and conditions of employment” [Evans v Newman, 71 AD2 240].

The court found this persuasive and upheld PERB’s decision. Relying on the Evans decision, PERB properly found that local governments should not be compelled to negotiate allocations of positions to salary grades because such decisions are “an essential aspect of the level and quality of service to be provided by a public employer.”

The Appellate Division, noting that its power to overturn a PERB decision is limited as PERB has been given the authority to determine whether a particular matter is a term or condition of employment, said that PERB's determination will be judicially upheld so long as PERB’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections.

The Appellate Division also rejected CSEA’s argument that the reallocation and removal of 12 employees from the negotiating unit that resulted from the change was the product of improper motives on the part of the County.

According to the court, "it is clear from the record that the decision to reallocate these titles to higher pay groups was motivated solely by the County's demonstrated need to provide competitive salaries for these positions thereby correcting past recruitment and retention problems.

Correction officer charged with disobeying an order to take a post assignment

Correction officer charged with disobeying an order to take a post assignment
NYC Department of Corrections v Callabrass, OATH Index #1981/10

Regina Callabrass, a New York City correction officer, was served with a number of disciplinary charges alleging, among other things, that she was guilty of disobeying an order to take a post assignment.

OATH Administrative Law Judge Tynia Richard recommended that the charge that the Callabrass disobeyed an order to take an assignment be dismissed. ALJ explained that when Callabrass objected to the assignment, the supervisor did not repeat the directive but, instead, commenced looking for another correction officer to accept the assignment.

With respect to Callabrass’ threat “to call in sick” when she received the unwanted assignment, the ALJ said that this constituted “conduct unbecoming an officer.” In addition Judge Richard found that Callabrass had made a false or misleading logbook entry.

After considering Callabrass’ long service record with no prior discipline, ALJ Richard recommended the imposition of a 5-day suspension without pay as the penalty for these two acts of misconduct.

The decision is posted on the Internet at:

Oath of office must be timely filed

Oath of office must be timely filed
Formal Opinion of the Attorney General, 98-F6

The filing of a timely oath of office is critical to an individual’s lawfully holding public office. The inter-relationship of the eligibility of a candidate to assume elective office and the filing of the required oath was addressed by the Attorney General in his Formal Opinion 98-F6.

A candidate for election to the Supreme Court, if elected, would become qualified for the position on January 24. His term of office, however, would commence on January 1. If elected, could the candidate lawfully file the required oath of office upon becoming qualified for the post on January 24?

Pointing out that Section 30 of the Public Officers Law states that an elective officer must file his or her oath of office within thirty days of the beginning of his or her term of office, the Attorney General concluded that in this instance filing the required oath between January 24, and January 30, would meet the Constitutional mandate [Section 1, Article XIII] that a public officer file his or her oath before undertaking the duties of the office.

What happens if the required oath is not filed within the 30-day period allowed under Section 30? The office is declared vacant.*

Where are such oaths to be filed?

1. The oath of every State officer must be filed with the Secretary of State; the oath of a municipal officer, including an officer of a school district, with the clerk of the jurisdiction.

2. The oath of all other officers, including library trustees, and officers of a BOCES, is to be filed with the county clerk of the county in which he or she resides. In addition, judicial officers of the unified court system must file an additional oath of office with the Office of Court Administration.

As noted above, the officer’s failure to file a timely oath results in a vacancy in the office by operation of law as the ruling in Vetere v Ponce demonstrates. Patrick A. Vetere, ready to commence his third four-year term as a member of the Harrison Town Council and Village Trustee, failed to file his oath of office within the 30-day period expiring February 1, 1996 as required by Section 30 of the Public Officers Law.

The town clerk declared Vetere’s office vacant on February 19 because of Vetere’s failure to file his oath of office. Although Vetere filed an oath of office on February 23, a few weeks later the Town Council and Village Trustees held a special meeting at which Benjamin DeForce was appointed to the vacancy.

DeForce subsequently resigned from the position and Vetere was appointed to the vacancy. Vetere then attempted to have the “certificate of vacancy” prepared by the town clerk on February 19 annulled and sought a declaratory judgment by a State Supreme Court justice that he was now entitled to a full four-year term of office as a result his reelection the previous November.

Supreme Court Justice Nicholas Colabella ruled that there was no statutory authority for issuing such a judgment. This means that Vetere will have to run for election for the remainder of the term to which he had already been elected. The decision states that “notwithstanding equitable considerations and the [Town’s] consent to reinstatement, the court can only direct reinstatement in the event it finds the petitioner was improperly removed as a matter of law.”

As Vetere’s removal was held to be proper, the Court dismissed his petition.

* Section 30 excuses the failure to file the oath within the 30-day period if the individual “was on active duty in the armed forces of the United States and absent from the county of his [or her] residence at the time of his [or her] election or appointment....”

August 20, 2010

Burden of proof of the charges of alleged misconduct never shifts to the individual served with disciplinary charges

Burden of proof of the charges of alleged misconduct never shifts to the individual served with disciplinary charges
NYC Department of Sanitation v Torrence, OATH Index #2015/10

Leo Torrence, a New York Department of Sanitation, worker was required to possess a valid commercial driver's license. His commercial driver’s license was suspended for over one year while he was on a long-term line-of-duty injury leave.

The Department charged Torrence with violating its rule that all required licenses must be kept valid at all times based on its General Order 2008-14 which provides that a disciplinary complaint will be filed if, after ten calendar days from the date of notification that an individual’s license has been suspended, the employee “fails to restore it.”

Although Torrence testified that he was unaware that his license had been suspended while he was on leave and did not learn of the suspension until he applied to have it renewed, Sanitation contended that it is not required to prove that Torrence had received notice of the suspension his license to sustain the charges it had filed against him.

Rather, argued the Department, Torrence was required to prove that he did not receive any notice from Motor Vehicles that his license was suspended to rebut the charge. In other words, Sanitation contended that Torrence had the burden of "proving a negative."

Oath Administrative Law Judge Faye Lewis disagreed, ruling that placing the burden of proof on Torrence in this instance would impermissibly shift the burden of proof in the disciplinary action to the accused in contrast to its being the burden of the charging party. Lewis said that Sanitation was required to show that Torrence had received appropriate notice from Motor Vehicles that his license was suspended and then did nothing within the time permitted to renew it.

Simply stated, the burden is always on the employer to prove the allegations set out in the disciplinary charges filed against the employee.

ALJ Lewis also rejected the Department’s argument that the valid license requirement is a strict liability rule as contrary to the basic precept that a finding of misconduct requires some showing of fault by the employee.

Lewis recommended that the charges filed against Torrence be dismissed.

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

Retiree rights under an expired collective bargaining agreement

Retiree rights under an expired collective bargaining agreement
Myers v City of Schenectady, 244 A.D.2d 845, Motion for leave to appeal denied, 91 N.Y.2d 812

In Myers the Appellate Division ruled that under certain circumstances retirees may be entitled to benefits flowing from collective bargaining agreements that have expired.

The case arose after the City of Schenectady decided to change its reimbursement of Medicare premiums policy. For many years the city had encouraged its retirees to enroll in Medicare as their primary health insurance carrier upon attaining age 65. Part B of Medicare required enrollees to pay a premium for coverage.

The city promised in collective bargaining agreements to reimburse the retirees the full cost of any Medicare premium. If a retiree declined to enroll in Medicare, the city would provide him or her with “the same fully paid health insurance coverage as it provided its eligible employees.”

In March 1994 the city announced that it would only pay 50 percent of the cost of Medicare Part B to those who had enrolled in Medicare. Then the city advised retirees that effective June 1994 it would cease all reimbursements for Medicare.

A number of retirees sued, contending that they had a vested contract benefit to “fully paid health insurance” and the City could not unilaterally discontinue its reimbursement of their Medicare premiums. They contended that under the terms of the several collective bargaining agreements in effect when they retired, they were entitled to “the same fully paid Health Insurance coverage” as was available to “all eligible employees.”

The Appellate Division sustained a lower court’s ruling that the city had a contractual obligation to provide the retirees with fully paid health insurance, rejecting Schenectady’s argument that “the agreements themselves had very clear durational limits.”

The court gave considerable weight to “past practice” in determining the rights of individuals claiming benefits or rights flowing from an expired agreement. The city had continued to pay benefits under expired agreements for 19 years, the court noted.

This made it difficult for the city to argue it only intended to give retirees the Medicare benefit for the duration of the contract. “[T]here is no surer way to find out what parties meant than to see what they have done,” the court said.

Schenectady’s “own 19-year practice of continuing to provide fully paid health insurance coverage to [its retirees], even after the expiration of the various collective bargaining agreements ... [constitutes] very substantial evidence that the provisions [of the expired agreements] in question were intended to provide benefits to retirees for the entire period of their retirement,” the court said.

Pre-determination hearings not required unless a deprivation of a property or liberty interest is threatened

Pre-determination hearings not required unless a deprivation of a property or liberty interest is threatened
Taylor v NYS Dept. of Correctional Services, 248 A.D.2d 799

A psychologist advised a correctional facility’s superintendent that State Corrections Officer Mark Taylor “was dangerous and may lose impulse control at any time.” Taylor “became belligerent and abusive” when the psychologist refused to give him a copy of a report that he had prepared for Family Court. Taylor refused repeated requests to leave the psychologist’s office and ultimately police officers were called and escorted him from the office.

The superintendent then prohibited Taylor from carrying a concealed weapon while off-duty.*

Taylor complained that he was denied due process because he was not provided with a “predetermination hearing” before the superintendent prohibited him from carrying a weapon while he was off duty

The rules of the state Correctional Services Department allow it to prohibit an employee from carrying a weapon while off duty if it determines “the employee’s mental or emotional condition is such that his or her possession of a weapon represents a threat to the safety of the employee, the facility or the community.”

According to the Appellate Division’s ruling in the Taylor case, the right to a pre-determination hearing depends on whether or not the individual can demonstrate that administrative decision constituted involved some deprivation of a “property interest” or a “liberty interest.” The Appellate Division said the superintendent had not deprived Taylor of any such “liberty interest.”

The Court next addressed the “property interest” aspect of the case. How does an individual establish a property interest? By showing, said the Court, that he or she has a “legitimate claim of entitlement to it.”

The Appellate Division pointed out that it had previously ruled that the exemption set out in Section 265.20 “is not a vested right.” Accordingly, it did not constitute a property interest for the purposes of invoking claims to any right of due process.

Finding that the superintendent had a rational basis for the action and thus was neither arbitrary nor capricious, the Appellate Division dismissed Taylor’s appeal.

* Section 265.20 of the State Penal Law gives State correction officers a statutory exemption from prosecution for criminal possession of a weapon.

August 19, 2010

Correction officer charged with disobeying an order to take a post assignment

Correction officer charged with disobeying an order to take a post assignment
NYC Department of Corrections v Callabrass, OATH Index #1981/10

Regina Callabrass, a New York City correction officer, was served with a number of disciplinary charges alleging, among other things, that she was guilty of disobeying an order to take a post assignment.

OATH Administrative Law Judge Tynia Richard recommended that the charge that the Callabrass disobeyed an order to take an assignment be dismissed. ALJ explained that when Callabrass objected to the assignment, the supervisor did not repeat the directive but, instead, commenced looking for another correction officer to accept the assignment.

With respect to Callabrass’ threat “to call in sick” when she received the unwanted assignment, the ALJ said that this constituted “conduct unbecoming an officer.” In addition Judge Richard found that Callabrass had made a false or misleading logbook entry.

After considering Callabrass’ long service record with no prior discipline, ALJ Richard recommended the imposition of a 5-day suspension without pay as the penalty for these two acts of misconduct.

The decision is posted on the Internet at:

School board meetings are open to the public

School board meetings are open to the public
Goetschius v Greenburgh 11 UFSD, 244 A.D.2d 552

The school board of the Greenburgh 11 Union Free School District barred some of its educators from attending a board meeting at which it planned to consider the termination of certain teachers.

The educators sued, contending that the board’s action violated New York’s Open Meetings Law [Article 7, Public Officers Law]. The board, citing Sections 2801 and 3020-a of the Education Law, also argued that its action was lawful as those sections “supersede the Open Meetings Law.”

The Appellate Division rejected the board’s argument, pointing out that:

1. Sections 2801 and 3020-a “do not specifically allow the Board to exclude [the educators] from Board meetings” but, rather, allow boards of education to adopt rules and regulations for the maintenance of public order on school property;

2. Section 1708(3) specifically provides that “the meetings of all such boards [of education] shall be open to the public;”

3. Section 1708(3) overrides the general provisions of Sections 2801 and 3020-a; and

4. The State’s Open Meetings Law is not superseded by either Section 2801 or Section 3020-a.

The Appellate Division also observed that Section 110 of the Public Officers Law states that “any provision of a ... rule or regulation affecting a public body which is more restrictive with respect to public access shall be deemed superseded hereby to the extent that such provision is more restrictive than this article.”

The Appellate Division indicated that the Board “engaged in a persistent pattern of deliberate violations of the Open Meetings Law through insufficient notice, unreasonable starting times, improper convening of executive sessions, and improper exclusion of members of the public. It then upheld a Supreme Court justice’s ruling annulling certain of the board’s actions and awarding attorney fees to the educators.

The statute of limitations for litigating an alleged breach of a collective bargaining agreement is six years

The statute of limitations for litigating an alleged breach of a collective bargaining agreement is six years
Lagreca v City of Niagara Falls, 244 AD2d 862, leave to appeal denied, 91 NY2d 813.

The Lagreca decision points out that a law suit for an alleged breach of a collective bargaining agreement must be brought within six years of the act or omission claimed to constitute the breach.

When does the statute of limitations for the alleged breach of contract begin to run? On the date when the alleged breach occurred.

Bernadette J. Lagreca, the widow of a deceased city of Niagara Falls employee, sued the city because it had terminated her late husband’s life insurance policy in June 1988.

Lagreca contended that the cancellation of the policy violated the collective bargaining agreement then in effect. Lagreca, however, did not file her lawsuit until seven years after the insurance had been terminated. The court said that statute of limitation for breach of contract was six-years and had expired by the time the suit was filed.

The appellate division affirmed the Supreme Court’s dismissal of Lagreca’s petition, commenting that “the cause of action for breach of contract occurred at the time of the breach when the [city] terminated life insurance coverage of [Lagreca deceased husband] ... allegedly in violation of the collective bargaining agreement.”

Union security

Union security
Local 1095, AFSCME and Erie Community College, 30 PERB 4707

How much does it take to show that negotiating unit employees did not have “work exclusivity” with respect to a particular work site? If there is a history of work assignments being frequently switched between unit members and non-unit workers, the work is non-exclusive according to a PERB Administrative Law Judge.

Administrative Law Judge Jean Doerr ruled that Local 1095 failed to demonstrate that the union had “exclusivity” with respect to “second shift” security work being performed at an off-campus site of the college because employees of a private security company, Pro Service, had alternated with union members in providing security services at that location for a number of years.

In such cases, said Doerr, the “essential questions to be resolved are (1) has the work been performed exclusively by unit employees? and (2) are the reassigned tasks substantially similar to those previously performed by unit members? One of the points made in the decision was that “the work at issue shifted back and forth between [Local 1095] and Pro Guard from September 1995 through January 1997,” when Pro Guard again took over the entire operation.

Doerr said that given the “ever changing nature of the assignment,” it is difficult to see that [Local 1095] had any expectation that, after again resuming the work in April of 1996, the last “switch,” it would have the second shift assignment for any extended period of time.

August 18, 2010

Failure to exhaust available administrative remedies fatal to seeking court review

Failure to exhaust available administrative remedies fatal to seeking court review
White v Pozzi, 72 AD3d 1106*

Employee’s failure to exhaust his administrative remedies coupled with his failure to demonstrate an exception to the exhaustion requirement applied in his case requires the denial of his petition seeking judicial review of the disciplinary determination.

* Text of decision e-mailed to registered readers.

Disciplinary suspension without pay

Disciplinary suspension without pay
Empire Hook & Ladder Co. #1 v Nyack FD, [Not selected for publication in the Official Reports]

It is not at all unusual for an employee to challenge his or her disciplinary suspension by filing an Article 78 petition with a court.

In contrast, an Article 78 petition challenging the disciplinary suspension of a volunteer organization is not at all common. Yet a disciplinary suspension was the basis for a lawsuit filed by the Empire Hook and Ladder Company #1, a volunteer fire department, against the Nyack Fire Department.

The genesis of the action was the Village of Upper Nyack’s approval of a request submitted by a member of Empire to purchase a vehicle to be used to transport Empire members to fires as well as certain non-fire details.

The Nyack Fire Department, however, said that the member who submitted the request to the village had violated Nyack’s rules because the member had appeared before the village board without first obtaining permission to do so from Nyack’s chief. The chief declared that unless Empire apologized within 10 days “the matter would be reopened and appropriate action would be taken.”

No apology was received and Nyack told Empire it was suspended from service for 30 days for violating the department’s rules. The suspension, however, “did not include fires, emergencies or funeral detail.”

Empire sued, contending that its suspension was arbitrary and capricious. It argued that (1) it was never presented with written charges specifying the Nyack rule or regulation which it allegedly violated and (2) the penalty imposed -- suspension for 30 days -- violated General Municipal Law Section 209-i because it had not been given a hearing on the charges.*

According to the ruling, Empire was a member of the Nyack Fire Department. One of Nyack’s rules prohibited “an individual or company ... from communicating or asking to go before any village body for any type of equipment or any other reason without obtaining permission from the Chief of the Nyack Fire Department.”

Based on this prohibition, Acting Justice Weiner dismissed Empire’s petition, ruling that:

1. GML Section 209-i did not apply in this situation and therefore no “pre-suspension” hearing was required; and

2. The discipline imposed on Empire was not so disproportionate to the offense committed as to shock one’s sense of fairness.

* GML 209-i authorizes fire departments to make regulations governing removal of volunteer officers and volunteer members of such departments and member companies for incompetence or misconduct. The Section also requires “notice and hearing” before a member may be removed from his or her position. In Armstrong v. Centerville Fire Company, 83 NY2d 937, however, the Court of Appeals decided that in adopting Section 209-i the legislature did not intend to interfere with discipline in connection with the conduct of the internal affairs of a fire department.

August 17, 2010

Employer’s good faith suspicion of employee’s stealing defeats FMLA claim

Employer’s good faith suspicion of employee’s stealing defeats FMLA claim
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.

Gwendolyn Donald worked for Arby's as an assistant manger. Shortly after being hired she suffered a series of medical problems causing intermittent periods of extreme pain. She was granted FMLA leave for related surgeries. While working the drive-through window, Donald’s cash register was over $4.00. Concerned that this might be evidence of employee theft, the company conducted an investigation, including video surveillance.

The surveillance suggested that Donald was ringing folks up at the full amount while recording the transaction in the register as discounted, and pocketing the difference. The suspicion could not be confirmed because the customers could have been handing coupons to Donald, which would explain the discrepancy. The company confronted Donald with its suspicions. When she refused to acknowledge in writing that she was stealing, she was fired.

Donald sued alleging that she was terminated in retaliation for taking FMLA leave in the past. She also claimed that her termination interferences with her right to return to work from intermittent FMLA leave in the future.

The Court initially noted that there were substantial questions regarding her FMLA retaliation/interference claims. Such questions would normally defeat the employer's motion for summary judgment. Because, however, the court found that the company established a legitimate, nondiscriminatory reason to end Donald's employment, and that Donald had failed to establish that the reason was pretextual.

The court agreed that being $4.00 over may be evidence of theft. The court also credited the company's investigation, which confirmed the possibility of theft. The company's handbook cited theft as a reason for immediate termination. A demonstrable risk of theft, the court found, is a legitimate reason for an employer to end that person's employment.

The court rejected the non-theft explanations offered by Donald. The fact that the discrepancy could be explained because the customers could have presented discount coupons failed to diminish the legitimacy of the company's concerns. The court explained:

There may be other explanations for the discrepancies beyond the, but Plaintiff has offered no reason to believe Plum, Barocko, and Ballance fabricated their concern to cover up their unlawful discrimination. Indeed, whether Plaintiff was actually stealing or not is largely irrelevant, the relevant question is whether the evidence of theft was a sufficient reason and the actual reason for Plaintiff's termination. Plaintiff's evidence does not demonstrate that Defendant made up its reason for the termination, the stated reason was not the real reason, or that the stated reason is insufficient to justify the decision. Nor is there any evidence that the inconvenience associated with her requests for FMLA lave played any role in the decision to end Donald's employment.

Mr. Bosland Comments: So long as an employer can establish that it had a good faith belief that it took an adverse action against an employee for legitimate, nondiscriminatory reasons, the employer will likely be successful in defeating an FMLA at the summary judgment phase. The employer does not have to prove that its suspicions were, in fact, correct. It need only prove that it held those suspicions in good faith, and acted on those suspicions when it decided to terminate the employee.

To show pretext, an employee will have to demonstrate that the employer did not have a good faith belief that the employee engaged in conduct that could get them terminated. This is not an easy burden. Simply offering innocent, alternative explanations won't do it. Stated differently, the fact that the employer may not be able to prove theft "beyond a reasonable doubt" is not the standard. To defeat an FMLA claim, all the employer need prove is that it had a reasonable, good faith suspicion of theft.

Evidence of innocent, alternative explanations might, however, be used as evidence of a particularly substandard employer investigation. Coupled with some adverse comments incident to the use of FMLA leave in the past, and a short period of time between protected activity and the adverse action, and the employee can start to build a credible argument to survive the employer's inevitable summary judgment motion.

The case Donald v. Sybra Inc., No. 09-12252-BC (E.D. Mich. Aug. 11, 2010).

The decisions is posted on the Internet on the “Leagle” law blog at:

Alleged violations of a "Memorandum of Understanding" to a Taylor Law agreement may not be subject to contract grievance procedures

Alleged violations of a "Memorandum of Understanding" to a Taylor Law agreement may not be subject to contract grievance procedures
Pine Plains CSD v Federation of Teachers, 248 A.D.2d 612

It is not unusual for parties to a collective bargaining agreement to agree to provisions set out in a “supplemental agreement” or to sign a “memorandum of understanding” in the course of collective bargaining pursuant to the Taylor Law.

Typically this device is used to set out provisions that although they have been agreed upon, for some reason, one or both of the parties do not wish to have the item set out in the collective bargaining agreement. In other instances, the supplemental agreement or memorandum of understanding is used to explain or modify a term or contract provision contained in the agreement or provide something after negotiations have been completed.

The Pine Plains Central School District case considers a significant issue: how does a party resolve a dispute concerning a provision contained in a supplemental agreement or in a memorandum of understanding?

The case arose when the Pine Plains Federation of Teachers demanded that its grievance concerning an alleged violation of a provision contained in a “supplemental memorandum of agreement” between the parties be submitted to arbitration in accordance with the arbitration procedure set out in the collective bargaining agreement in chief between the District and the Federation.

The District won a stay of arbitration of the alleged violation on the grounds that the supplement did not contain an arbitration clause nor was the contract grievance/arbitration procedure incorporated by reference into the supplement agreement.

According to the ruling by the Appellate Division, unless there is an arbitration process specifically set out in a supplement to a collective bargaining agreement or a memorandum of understanding, or the supplement or memorandum specifically states that the collective bargaining agreement in chief's arbitration procedure will be used to resolve disputes arising under it, a party cannot demand that the issue be submitted to arbitration as a matter of right.

Delay in issuing arbitration decision did not constitute misconduct by the arbitrator within the meaning of Article 75 of the CPLR

Delay in issuing arbitration decision did not constitute misconduct by the arbitrator within the meaning of Article 75 of the CPLR
Squillini v State of New York, App. Div., 248 A.D.2d 391

Michael A. Squillini, a maintenance supervisor, was served with disciplinary charges alleging “theft and deceit.” The arbitrator issued a decision on December 20, in which he found Squillini guilty of the charges and imposed the penalty of dismissal.

Squillini contended that he had agreed to an extension of time for issuing the arbitration award through November 17, but the award was issued more than a month after that. This delay, Squillini said, constituted misconduct by the arbitrator within the meaning of Article 75 of the Civil Practice Law and Rules.

Squillini attempted to vacate the arbitration award alleging misconduct based on the arbitrator’s delay in his issuing the award.

The Appellate Division rejected Squillini’s petition to vacate the award, finding that “the arbitrator’s actions did not constitute misconduct.”

Further, said the court, “the arbitration award ... sustaining the penalty of dismissal from employment for theft and deceit, does not violate a strong public policy and is not irrational.”

August 16, 2010

New York Department of Correctional Services announces examination for Correction Officer

New York Department of Correctional Services announces examination for Correction Officer
Source: New York Department of Correctional Services - [Published by NYPPL as a public service].

A statewide competitive Civil Service exam for the position of correction officer trainee will be held on October 16, 2010. [Examination 25-431]

There are no minimum requirements for taking this written examination. However, at the time of appointment, applicants must have passed the written exam, must be 21 or older, a U.S. citizen and a resident of New York, and possess a high school diploma or GED. Appointees must also have passed medical and psychological screenings, as well as a background investigation.

Please note that although conviction for a felony automatically disqualifies anyone from becoming a correction officer, applicants having misdemeanor convictions are reviewed on a case-by-case basis to determine eligibility.

Applications must be postmarked by September 13, 2010.

The starting annual salary for a trainee is $36,420 and $43,867 after the one-year traineeship, subject to potential increase through contract negotiations, with additional geographic pay Downstate. In addition to the base salary, appointees will receive 16 college credits, a comprehensive health insurance program, retirement benefits, and pre-shift briefing and expanded duty pay which amount to $3,344 annually.

Officers working at correctional facilities in the New York City area and select Mid-Hudson areas will receive an addition to their salary - $3,210 annually for working in New York City or Nassau, Suffolk, Rockland or Westchester counties, or $1,195 annually for working in Dutchess, Orange or Putnam counties. There are also evening and night shift inconvenience pay programs.

The exam is administered by the New York State Department of Civil Service. Additional information is available at:,
or by telephone toll-free at (877) 697-5627, option 2.

Corrections Commissioner Brian Fischer said that “Corrections is a great career for the men and women of New York, and I encourage anyone looking for a challenging and rewarding job, especially women and minorities, to take this exam ... The important job of Correction Officer not only provides opportunities for career advancement but carries with it the honor of playing a critical role in keeping this State and its citizens safe and secure.”

To ensure a successful recruitment for October’s competitive exam, test announcements and applications will be distributed at multiple locations as well as the Department of Civil Service’s website (, its Albany location, its regional Civil Service offices, local New York State Employment Offices, and all State correctional facilities.

Examination announcements and applications can be obtained by contacting the Department of Correctional Services at NYSDOCS, Correction Officer Recruitment Unit, Building 2, The Harriman State Campus, 1220 Washington Avenue, Albany, NY, 12226 or by calling DOCS at (518) 457-8131, or via the internet at

NOTE: Candidates for the County Correction Officer/Trainee examination held on April 10, 2010, may apply for the State examination but such individuals will not be admitted to the written test on October 16, 2010. However, the Correction Department advises that if you apply for the State Correction Officer Examination, your results from the County Correction Officer/Trainee examination will be used to calculate your final score for the State examination.

The names of candidates scoring 70 or higher on the April 10, 2010 County Correction Officer/Trainee examination will be included on the eligible list for appointment as a New York State Correction Officer ONLY if the County Correction Officer/Trainee examination candidate files an application for the State Correction Officer Examination and pays the required non-refundable processing fee for the State Examination .


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.
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