Monday, May 31, 2010
Reduction of Medicare premiums reimbursed to retirees in NYSHIP, the NY State Health Insurance Program for State and Local Government proposed
Source: The NYS Legislative Retrieval Service - Assembly 9706-B
NYPPL notes the introduction of Assembly 9706-B, Part U, a measure that proposes an amendment to Civil Service Law §167-a that is draconian in nature and ignores completely the underlying reasons why §167-a was proposed and enacted into law in 1966.
A brief history lesson concerning the enactment of §167-a may be illuminating.
Many years ago Thomas McCracken, the then director of the Department of Civil Service’s health insurance unit, realized that the State could obtain substantial benefits in terms of a reduction in the employer’s contributions to the New York State Health Insurance Program for State and Local Government [NYSHIP] if individuals and the dependents of such individuals that were Medicare eligible retirees were to designate Medicare as their primary insurer.
Mr. McCracken was instrumental in the drafting and adoption of §167-a to this end. He also successfully advocated modifying NYSHIP's health insurance contracts to “exclude” from State health insurance coverage those benefits otherwise available to Medicare eligible retirees and their dependents under Medicare. The reason for this: Medicare premiums were less than the premium costs that would have been otherwise required were the State to continue to provide these benefits under NYSHIP.
In developing the plan, Mr. McCracken realized that, in effect, “excluding” such coverage in the NYSHIP contracts for health insurance mandated that the Medicare eligible retirees designate Medicare as their primary insurer or lose a significant portion of their health insurance coverage.
However, to maintain their same level of health insurance benefits, the Medicare eligible retiree would be required to pay the Medicare premium otherwise required for Medicare as well as their full employee contribution required for NYSHIP. Hence the amendment of the Civil Service Law to provide for the reimbursement of Medicare premiums to the Medicare eligible retirees set out in §167-a.
As an illustration, if the employee contribution for individual coverage in NYSHIP was $xxx per year, the Medicare eligible retiree would be required to pay $xxx for his or her NYSHIP participation and, in addition, pay $yyy per year for Medicare premiums. However, the Medicare eligible retiree would get the same level of health insurance otherwise available to the non-Medicare eligible individual under NYSHIP but would be required to pay more for the coverage.
To eliminate this adverse impact on Medicare eligible retirees, §167-a was enacted in order to provide for the reimbursement of Medicare premiums to Medicare eligible retirees, thus, once again, limiting their cost for health insurance to the $xxx per year that was required of active State workers and non-Medicare eligibles in NYSHIP while NYSHIP reaped substantial financial savings to the benefit of the State and NYSHIP’s participating employers.
Any action to reduce or impair the full reimbursement of Medicare premiums to Medicare eligible retirees as proposed by the drafters of Assembly 9706-B would result in the Medicare eligible retiree being required to pay more for the same level of health insurance benefits enjoyed by active employees and non-Medicare eligible individuals in NYSHIP, notwithstanding the fact that Medicare is providing benefits to Medicare eligible retirees that would otherwise be borne by NYSHIP thereby resulting in a significant reduced costs to the State and participating employers.
Simply stated, but for the Medicare eligible retirees participating in Medicare, the State’s and participating employer’s contribution for NYSHIP enrollees, active and retired, would be greater.
As to any argument that the State health insurance premiums need not be identical for active State employees and State Medicare eligible retirees, Civil Service Law §167, “Contributions,” demonstrates that the legislative intent was that such premiums be identical, regardless of employment or retirement status.
As evidence of this legislative intent, §167, in pertinent part, provides that “Nine-tenths of the cost of premium or subscription charges for the coverage of state employees and retired state employees retiring on or after January first, nineteen hundred eighty-three who are enrolled in the statewide and supplementary health insurance plans shall be paid by the state.” Accordingly, reimbursing the Medicare eligible retiree less than the full cost of his or her Medicare premium would be inconsistent with this legislative mandate that premiums for active employees and Medicare eligible retirees be identical.
To the same end, §167, in pertinent part, provides: “Three-quarters of the cost of premium or subscription charges for the coverage of dependents of such state employees and retired state employees shall be paid by the state.” Again, this intent of the legislative would be frustrated were the Medicare eligible retiree not reimbursed the full cost of Medicare eligible dependent Medicare premiums.
Clearly, §167 expresses the legislative intent that the premiums to be paid for health insurance were to be identical for active State employees, State retirees and State Medicare eligible retirees and their respective dependents.
Further, this is true with respect to “the premium or subscription charges for the coverage of each state employee or retired state employee who is enrolled in an optional benefit plan and for the dependents of such state employee or retired state employee.” §167 provides that such individuals are entitled to “the same dollar amount which would be paid by the state for the premium or subscription charges for the coverage of such state employee or retired state employee and his or her dependents if he or she were enrolled in the statewide and the supplementary health insurance plans, but not in excess of the premium or subscription charges for the coverage of such state employee or retired state employee and his or her dependents under such optional benefit plan.”
As to others in the State’s health insurance plan, §167 provides that “employees of the state colleges of agriculture, home economics, industrial labor relations, and veterinary medicine, the state agricultural experiment station at Geneva, and any other institution or agency under the management and control of Cornell University as the representative of the board of trustees of the state university of New York, and employees of the state college of ceramics under the management and control of Alfred university as the representative of the board of trustees of the state university of New York, shall be deemed to be state employees whose salaries or compensation are paid directly by the state.”
On a related point, there seems to be a perception on the part of some that §167-a distinguishes between Medicare Part A, Medicare Part B, etc. Clearly such is not the case. §167-a speaks to reimbursement of “Medicare premium charges” generically, not in terms of reimbursement of the cost of any part or subdivision of the Federal Old-age, Survivors and Disability Insurance Program and provides for the reimbursement of “an amount equal to the premium charge for such supplementary medical insurance benefits for such active or retired employee and his or her dependants.”
One can only hope that Medicare eligible retirees and their Medicare eligible dependents participating in NYSHIP are not faced with a situation whereby the proponents of this legislation are saying “don’t confuse us with the facts, our minds are made up!”
Saturday, May 29, 2010
Donohue et al v Paterson, USDC, Northern District of New York, 1:10-CV-00543 (LEK/DRH) [Filed May 28,2010]
Federal District Court Judge Lawrence E. Kahn ruled that the CSEA and the other unions suing the State in an effort to bar the furloughing of State workers “have met their burden of showing irreparable harm and a substantial likelihood on the merits of their claim.”
Judge Kahn issued a preliminary injunction enjoined the State “from submitting, enacting, or implementing emergency appropriations bills containing the furlough and wage provisions" objected to the unions.
The “Furlough of State Workers” decision by Federal District Court Judge Lawrence E. Kahn is posted on the Internet at: http://www.scribd.com/doc/32128536/Furlough-Decision1
Friday, May 28, 2010
Source: Office of the Governor
On May 28, 2010, Governor David A. Paterson reported that the State Legislature passed his bill authorizing an early retirement incentive. This bill, said the Governor, will provide State agency and local governments “with an additional mechanism to achieve necessary workforce cost savings.”
The statute, which was the Governor's Program Bill No. 249, establishes a temporary retirement incentive program for certain State and municipal public employees.
Public employees will be able either to retire without penalty at 55 years of age with a minimum of 25 years of service, or receive an additional month of member service credit in their retirement system – not to exceed 36 months – for each year of service.
According to a press release issued by the Governor’s Office, the early retirement incentive consists of two parts, Part A and Part B.
Part A: Part A provides a targeted incentive to positions that can be abolished and provides an additional month of retirement service credit for each year of credited service, up to a maximum of three years of additional member service credit.
Employers that elect to participate in Part A will be required to provide a 30- to 90-day open period to allow eligible employees adequate time to consider the incentive.
Municipalities that choose to “opt-in” to Part A must do so on or before August 31, 2010 and school districts must do so by July 30, 2010. Eligible employees must be currently eligible to retire, or be at least 50 years of age with ten or more years of service.
Part B: Part B provides employees in the Executive Branch of State government [and participating local government employees with the option to retire without penalty to employees at age 55 with at least 25 years of service. Participating employers will be required provide a 90-day open period to allow eligible employees adequate time to consider the incentive.
Employers may elect on or before September 1, 2010 to provide employees the benefits of Part B, and “education employers” must “opt-in” by July 1, 2010.
However, employees meeting the required criteria may not be permitted to participate in Part B if it the employer determines that the employee holds a position that is “critical to the maintenance of public health and safety.”
The text of the measure, Governor’s Program Bill 249, is available on the Internet at: http://www.ny.gov/governor/bills/pdf/gpb_249.pdf
N.B. Chapter 45 of the Laws of 2010, signed into law by the Governor on April 14, 2010, provides early retirement incentives to certain employees in public higher, secondary and elementary education employed by:
1. "Participating employers" i.e., an educational employer, the state-operated institutions of the State University of New York, and a community that employs members who hold positions represented by the recognized collective bargaining units affiliated with the New York State United Teachers Employee Organization]; and
2. "Educational employers" i.e., a school district, a board of cooperative educational services, a vocational education and extension board, an institution for the instruction of the deaf and of the blind as enumerated in Section 4201 of the Education Law, or a school district as enumerated in Section 1 of Chapter 566 of the Laws of 1967, as amended.
Chapter 45 covers employees holding positions represented by the recognized collective bargaining units affiliated with the New York State United Teachers employee organization that participate in the New York State Teachers' Retirement System and the New York State and Local Employees' Retirement System.
Appellate Division lacked “discretionary authority” to vacate the disciplinary penalty imposed by the appointing authority
The Court of Appeals held that the Appellate Division “has no discretionary authority or interest of justice jurisdiction in this CPLR article 78 proceeding to review the penalty imposed .…”
Buric v Safir, App. Div., 285 A.D.2d 255, leave to appeal dismissed, 98 NY2d 688
John Buric, a New York City police officer, found guilty of administrative disciplinary charges of assault and lying, was dismissed from his position.
The Appellate Division vacated this determination. Noting that “the threshold required to annul the Commissioner’s determination is a very high one,” the Court said that the Commissioner’s findings in this case clearly demonstrate, on this record, the lack of any rational basis.
According to the court:
The hearing examiner based her decision on the testimony of Mr. Dunham and the allegedly corroborating testimony of Ms. Fwilo, Mr. Small and Mr. Henson. Mr. Dunham, however, told different stories to different people .... The testimony of the three “corroborating witnesses” was incredible since none of them were present ... at the time this incident was alleged to have occurred.
Astonishingly, said the court, the hearing examiner ignored key details set out in the record in making her determination, instead lauding the credibility of Mr. Dunham, Ms. Fwilo, Mr. Small and Mr. Henson.
Annulling the Commissioner’s finding Buric guilty of charges of assault and lying, the Appellate Division addressed another charge, Buric’s removal of a prisoner from a cell without permission.
Buric, said the court, admitted he was guilty of removing the prisoner as charged. Accordingly, the court found it was necessary to remand the matter to the Commissioner for the purpose of imposing of an appropriate lesser penalty based on Buric’s admission with respect to the charges concerning the removal of the prisoner.
The language used by the court in remanding the matter appears to signal its view that dismissing Buric for this offense would not be an appropriate penalty under the circumstances.
Subsequently Buric asked for “back pay for the period of his improper termination without reduction for outside earnings during this period, (2) back pay for the first 30 days of his earlier suspension, and (3) interest on all back pay due and owing [Buric v. Safir, 4 A.D.3d 160].
The Appellate Division affirmed Supreme Court dismissal of Buric’s petition, holding that:
1. With respect to the reduction for outside earnings during the period of the improper termination, Civil Service Law § 77, which prohibits such a reduction, is of no help to Buric as, by its terms, it applies to employees who were removed “in violation of the provisions of this chapter.” Buric, however, was terminated pursuant to Administrative Code of the City of New York §14-115.
2. With respect to the first 30 days of the suspension, Buric could be suspended, without pay, for a period not exceeding 30 days pending the determination of the disciplinary charges preferred against him. Although two of the three charges were determined to be unfounded in the 285 AD2d 255, Buric was ultimately penalized five vacation days on the third charge, removing a prisoner from a holding cell without authority. The court rejected Buric’s argument that he would not have been suspended even one day had this been the only charge as “The operative statute (Administrative Code § 14-123) makes no distinctions based on the seriousness of the charges or severity of the penalty, and entitles the police officer to full back pay from the date of suspension only if not “convicted . . . of the charges.”
3. As to Buric’s demand for interest on the award of back pay, the Appellate Division said that Administrative Code §14-123) makes no provision for the payment of interest.
Thursday, May 27, 2010
Administrative Law Judge finds no “exceptional circumstances” justifying agency placing its employee on §72 leave involuntarily
New York City Administration for Children’s Service v J.M., OATH Index #3350/09
OATH Administrative Law Judge Tynia Richard found that written complaints sent to various agencies, without threats or inappropriate language, were insufficient to prove that special officer J.M. was mentally unfit to perform the duties of her position within the meaning of Civil Service Law §72.
The ALJ recommended J.M.’s immediate return to duty, plus back pay and restoration of leave credits,* as the employer did not show there were “exceptional circumstances” requiring immediate placement of J.M. on involuntary leave pursuant to §72.5 of the Civil Service Law.
Judge Richard said that J.M.’s should receive back pay and leave credits retroactive to the date J.M. was scheduled to return to work from medical leave.
Harvey Randall Comments: Civil Service Law §72 authorizes leaves of absence for State and municipal employees who suffer an "ordinary disability," i.e., a disability unrelated to any occupational injury or disease.**
§72.5 provides that an employee may be placed on an involuntary leave of absence in the event the appointing authority “determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations.”
In such cases the employee is entitled to use all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit in order to remain on the payroll. If the employee declines to use his or her accumulated leave credits in order to remain on the payroll, or having elected to remain on the payroll, exhausts his or her accumulated leave credits, he or she is placed in leave without pay status.
In the event the individual is ultimately determined to have been physically or mentally fit to perform the duties of his or her position at the time he or she was placed on §72 leave involuntarily, he or she is to be restored to his or her position and shall have any leave credits or salary that he or she may have lost because of such involuntary leave of absence restored to him or her. The amount of "lost wages" to be reimbursed to the individual is to be adjusted to reflect any compensation he or she may have earned in other employment or occupation and any unemployment insurance benefits he or she may have received during the relevant period.
If individual has been on §72 leave continuously for one year or longer, the appointing authority may, as a matter of discretion, terminate the individual from his or her position pursuant to §73 of the Civil Service Law.***
However, a "§73 termination" is not a “pejorative” dismissal and the individual may apply for reinstatement to his or her former position within one year after the termination of the underlying disability.
Further, in the event the individual's former position is not available, he or she may be appointed to another, appropriate, position, or to an appropriate position in a lower grade. Failing that, the individual’s name is placed on a preferred list.
If the individual's name is placed on a preferred, he or she will be eligible for reinstatement to an appropriate position in his or her former agency from the preferred list for four years.
* Although §72 leave is "leave without pay," the employee may used available leave credits to remain on the payroll while on such leave to the extent that he or she has vacation credits, sick leave or other leave accruals that may be charged during his or her absence. In some instances, "leave bank credits" may be available to the individual for this purpose upon the exhaustion of his or her leave credits.
** In contrast, Civil Service Law §71 -- Workers' Compensation Leave -- authorizes leaves of absences for State and municipal employees that are required as a result of an occupational injury or disease as defined in the Workers' Compensation Law.
*** The appointing authority may, as a matter of discretion, terminate an individual absent on §71 Workers’ Compensation Leave for a cumulative period of one year or more.
The decision is posted on the Internet at: http://archive.citylaw.org/oath/09_Cases/09-3350.pdf
Source: Jackson Lewis Legal Updates, http://www.jacksonlewis.com/legalupdates/default.cfm
New York Holds Faragher-Ellerth Defense Unavailable Under New York City Human Rights Law [posted by Jackson Lewis, Albany, New York]
A critical affirmative defense to workplace harassment claims available to employers under federal law is not available to New York City employers for similar claims brought under the New York City Human Rights Law ("NYCHRL"), New York State's highest court has ruled. Click here for more »
Matter of Duncan v Kelly, 9 NY3d 1024
New York City Police Department's Internal Affairs Bureau (IAB) conducted an interview probationary police officer Myron Duncan about a credit card incident that implicated his cousin in criminal activity that occurred prior to his appointment. Although Duncan denied knowledge of any such criminal activity, the IAB summarily determined that he had lied and terminated him for making false statements.*
The Appellate Division upheld Duncan’s termination, commenting “it was petitioner's post-hiring conduct, in making false and misleading statements to members of the Internal Affairs Bureau (IAB) concerning a crime he was allegedly involved in prior to his employment as a police officer, that provided ample basis for his termination [Duncan v Kelly, 43 A.D.3d 297]. The Court of Appeals affirmed the Appellate Division’s ruling.
The court said that the Police Commissioner has the authority to discharge a probationary police officer for conduct committed while serving as a member of the force, citing New York City Administrative Code §14-115. The court noted that a probationary employee may be discharged for "almost any reason, or for no reason at all" as long as the decision is not made "in bad faith or for an improper or impermissible reason."
The court rejected Duncan’s argument that he was dismissed solely due to pre-hiring conduct.
The Commissioner, said the court, relied upon Duncan’s post-hiring conduct that involved giving false and misleading statements to members of the Internal Affairs Bureau in making his determination to dismiss Duncan from his position.
* The IAB investigation absolved Duncan of two other alleged crimes.
Wednesday, May 26, 2010
Mt. Vernon v PERB, 289 A.D.2d 674, motion for leave to appeal denied, 97 N.Y.2d 613
In considering the appeal of the City of Mt. Vernon, the Appellate Division ruled that under certain circumstances negotiating a contract disciplinary procedure is not a mandatory subject of collective bargaining under the Taylor Law.
Mt. Vernon had appealed a PERB determination that held that its disciplinary procedures were a mandatory subject of collective bargaining in response to the City’s claim that its police officers union had submitted a number of nonmandatory or prohibited subjects of collective bargaining for compulsory interest arbitration, one of which involved disciplinary procedures.
The City’s argument: Its 1922 City Charter established disciplinary procedures for its police officers and the continuation of such procedures is protected by Civil Service Law Section 76(4). Accordingly, the City said could not be forced to negotiate its disciplinary procedure on the theory that it was a term or condition of employment.
Supreme Court agreed, determining that PERB’s decision was “irrational, unreasonable and legally impermissible” and granted the City’s motion.
PERB appealed contending that because Section 76(4) was passed years before the Taylor Law, it “could not reasonably be read to reflect ‘any intent on the part of the Legislature to exclude or preclude bargaining as to discipline’“.
Section 76(4), in pertinent part, provides:
Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter.
The Appellate Division said that although the Taylor Law requires good faith bargaining concerning all terms and conditions of employment which have been held to be a mandatory subject of collective bargaining, here the police officer discipline procedures contained in the City’s Charter enacted in 1922 are specifically protected from repeal or modification by Section 76(4).Affirming the lower court’s ruling, the Appellate Division held that under these circumstances, the disciplinary procedures applicable to Mt. Vernon’s police officers are not mandatory subjects of negotiation.
Voss v Rockland County Community College, 38 A.D.3d 880
When Thomas Voss’ contract as Acting President of the Rockland Community College was not extended beyond its fixed date of expiration, he sued to “recover damages for breach of contract.”
Supreme Court dismissed Voss’ complaint and he appealed.
Affirming the lower court’s dismissal of his petition, the Appellate Division observed that Education Law §6306(2) provides, in relevant part, that “[t]he board of trustees of each community college shall appoint a president for the college, subject to approval by the state university trustees.”
In rejecting Voss’ appeal, the court said that the Community College “made a prima facie showing” of its entitlement to summary judgment dismissing Voss’ cause of action to recover damages for breach of contract, “as the State University of New York Board of Trustees did not approve the contract seeking to extend the appointment of …. Thomas G. Voss as the interim community college president.”*
Contract’s setting terms and conditions of employment are relatively rare in the public sector and are most frequently encountered in an education setting.
For example, Education Law §1711.3 provides for the Board of Education of a union free school district entering into a contract with its superintendent “for a period of not less than three and not more than five years” while Education Law §2507.1, which applies to city school districts in cities having a population of less than 125000 inhabitants, provides, in relevant part, that “The superintendent and any associate superintendent of schools in each school district shall hold his position subject to the pleasure of the board of education, except that the superintendent of schools may be appointed for a term of not to exceed five years….”**
* N.B. §6306(2) provides, in relevant part, that “[t]he board of trustees of each community college shall appoint a president for the college” but does not set any minimum or maximum period for such appointment. Further, §6306(2) does not specifically provide for entering into a “contract for such service.”
** Education Law §2507.1 also provides that insofar as compensation is concerned, the terms of any such employment contract shall not be tied to the terms of any contract or collective bargaining agreement that the board of education has or will enter with the teachers or other employees of the school district.
Public employers cannot violate Civil Service Law §209-a.2(a), which addresses improper employee organizations practices
Angela Fail-Maynard and Long Beach City School District and Long Beach Administrators’ Union, Decisions of the Director #29565
The Director dismissed the charge, as amended, against the District ruling that public employers cannot violate Civil Service Law §209-a.2(a), the Taylor Law.*
§209-a.2(a) prohibits “Improper employee organization practices” and bars an employee organization or its agents from deliberately interfering with, restraining or coercing public employees in the exercise of their rights under the Taylor Law or attempting to cause a public employer violate such rights given by statute to the employee.
The Director also dismissed the amended charge alleging that the Union breached its duty of fair representation ruling that there were no facts to arguably establish the Union’s conduct as arbitrary, discriminatory or in bad faith.
* N.B. §209-a.1(a) of the Civil Service Law, not §209-a.2(a), addresses “Improper employer practices.”
Health and Hospitals Corp. v Goodman, OATH Index #1632/07
In an employee discipline case, video evidence established a special officer permitted a psychiatric patient to be admitted with his belt and shoelaces and made a lengthy personal phone call.
ALJ Julio Rodriguez also found that the officer slapped a female patient across the face and said, "I am simply doing my job."
The ALJ recommended that Goodman be terminated.
Tuesday, May 25, 2010
Muniz v Giuliani, 282 A.D.2d 246
The Appellate Division, First Department, sustained the penalty of a suspension without pay for twenty days imposed on New York City police officer Clifford Muniz after Muniz was found guilty of continuing to argue with his desk sergeant after the sergeant had instructed him to leave the precinct house following the morning roll call and the assignment of duties.
Noting that Muniz's testimony supported a finding of guilty, the court said that the penalty imposed "does not shock our sense of fairness."
Subsequently Muniz forfeited an addition 10 vacation days after being found guilty of engaged in conduct prejudicial to the Police Department while off-duty [Muniz v. Giuliani , 282 A.D.2d 343].
Again the Appellate Division said that “The penalty of a forfeiture of 10 vacation days is not so disproportionate to the offense that petitioner was found to have committed as to be shocking to our sense of fairness,” citing Trotta v Ward, 77 NY2d 827.
Source: Jackson Lewis Legal Updates http://www.jacksonlewis.com/legalupdates/default.cfm
Second Circuit Rules Failure to Investigate Discrimination Complaint Not Adverse Employment Action [posted by Jackson Lewis, Albany, NY]
Affirming summary judgment for the employer in a race discrimination and retaliation action, the federal appeals court in New York has held that, under the circumstances, the employer's failure to investigate a complaint of alleged employment discrimination is not an adverse employment action. Click here for additional information - more »
Terminating a probationary employee without providing him or her with a pre-termination administrative hearing
Johnson v City of New York, 281 A.D.2d 322
Elaine Johnson, a probationary employee, challenged her termination from her position as a Caseworker with the New York City Administration for Children’s Services [ACS].
According to the decision, Johnson suffered a job-related injury while she was serving as a provisional Caseworker.
ACS permanently appointed Johnson to the position of Caseworker while she was on leave. Her permanent appointment was subject to her satisfactory completion of a one-year probationary period. Still on leave, Johnson was terminated from her position before completing her probationary period.
The Appellate Division upheld Johnson’s termination, rejecting her allegation that she was terminated in retaliation for a complaint she had made while a provisional about her supervisors’ communication skills.
The court said that there was “ample evidence of [Johnson’s] unacceptable work performance as a provisional that her supervisors began to document before she made her complaint about them.”
However, there are some troublesome aspects to this case.
According to the ruling, Johnson never actually performed any services as a Caseworker while a probationer -- she was absent on an authorized leave prior to and following her permanent appointment. ACS, said the court, relied on her “performance as a provisional in making its decision to terminate her permanent appointment.
Typically, a probationary period is extended if the individual is absent during his or her probationary period.
As to actually being evaluated on his or her performance while a probationer in contrast to his or her performance while serving in some other capacity -- i.e., as a temporary or provisional employee -- in Matter of DeCecca, 25 Misc2d 425, the court ruled that a probationary employee may not be dismissed until he or she has been given an opportunity to demonstrate his or her capacity to satisfactorily perform the duties of the position – in this instance the completion of the minimum period of probation.
Finally, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows:
After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.
The York decision is viewed as authority for requiring that a probationary employee be given administrative due process in the form of providing the employee with “notice and hearing” if the appointing authority decides to terminate the individual during his or her minimum period of probation.
Monday, May 24, 2010
The general rule is that once the public officer or employee delivers his or her resignation to the appointing authority or the appointing authority's designee, approval of a request to withdraw or rescind the resignation is subject to the discretionary approval of the appointing authority.
Employee's dismissal for not taking scheduled lunch breaks held disqualifying misconduct for the purposes of qualifying for UI benefits
Gil v Commissioner of Labor, 2010 NY Slip Op 04312, decided on May 20, 2010, Appellate Division, Third Department
The Appellate Division confirmed a determination by the Unemployment Insurance Appeals Board denying benefits to Teresa D. Gill after she was terminated from her employment with the Middletown Community Health Center, Inc.
The reason for Gil’s disqualification: she didn’t take her scheduled lunch breaks. In this instance, said the Board, not taking lunch breaks as scheduled constituted “disqualifying misconduct” insofar as her eligiblity for unemployment insurance benefits was concerned.
Instead of taking lunch breaks as scheduled by her employer, Gil would leave work to run personal errands and then skipped her lunch break in an effort “to make up the lost time.”
Gil’s supervisor instructed her to take her lunch at a specific time and use her personnal leave credits for absences. Despite her supervisor’s instructions, if Gil arrived late to work she did not charge her leave credits but, instead, did not take her lunch break as scheduled.
As a result, Gil was terminated from her position with the Health Center.
The Board concluded that Gil had refused to obey reasonable rules set by her employer despite being instructed to follow its rules and procedures. It ruled that her actions constituted misconduct within the meaning of the Unemployment Insurance Law, thus disqualifing her for unemployment insurance benefits.
The decision is posted on the Internet at:
Source: Jackson Lewis, a law firm
Jackson Lewis announced the launch of its newest law blog, the Disability, Health and Leave Management Blog.
Jackson Lewis indicated that the blog will be updated frequently and address cutting-edge issues in the very dynamic areas of disability, leave and health management law.
Among others, the blog will address issues that regularly challenge employers as they attempt to comply with often overlapping and sometimes conflicting laws concerning employee leaves.
You can access this blog through the Jackson Lewis website (www.jacksonlewis.com); directly at (http://www.disabilityleavelaw.com/) or though a link in NYPPL’s sidebar to the right, where it is listed in the section labeled "Links to Other Useful Web Pages."
Friday, May 21, 2010
School board's attempt to remove one of its members for neglect of duty rejected by Commissioner of Education
Application of the Board of Education of the City School District of the City of Elmira for the removal of Dianna Brewer-Jackson as a member of the board. Commissioner's Decision No. 16,051
The Board of Education of the City School District of the City of Elmira asked the Commissioner of Education to remove Board Member Dianna Brewer-Jackson from her position. The Board alleged that Brewer-Jackson had “engaged in a willful violation of the law and neglect of duty by failing to cooperate with an investigation and failing to disclose evidence in her possession regarding a potential risk to the children of the district.”
The Commissioner denied the Board’s application.
The Commissioner said that a member of the board may be removed from his or her office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that a board member or the board president has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education.
In this regard, said the Commissioner, the party seeking to have the individual removed has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which relief is sought.
In this instance the Commissioner said that he “must dismiss” the Board’s claim that Brewer-Jackson willfully failed to cooperate with an investigation in this matter. Further, said the Commissioner, “the record reveals that the board members, the board president, the superintendent and the police department were aware of the alleged perpetrator’s name and the alleged school building and there is nothing in the record to suggest that Brewer-Jackson withheld any additional information.”
The Board also alleged that Brewer-Jackson “willfully failed to report the allegation" of child abuse. Article 23-B of the Education Law requires certain school employees to report allegations of child abuse in an educational setting (Education Law §§1125-1133).”*
Commissioner Steiner ruled that the Board “failed to meet its burden to show that Brewer-Jackson willfully failed to report an allegation in violation of Article 23-B in that it did not offer any evidence that Brewer-Jackson had received required training regarding the reporting requirements of Article 23-B.**
Turning to an element flowing from this application by the School Board -- reimbursing Brewer-Jackson for her legal expenses in defending herself in this matter, the Commissioner commented that Education Law §3811(1) does not provide for reimbursement of legal expenses incurred to defend “a criminal prosecution or an action or proceeding brought against ... [a board member] by a school district ... including proceedings before the Commissioner of Education ....”
Accordingly, Commissioner Steiner ruled that Brewer-Jackson was not entitled to a "certificate of good faith" because the application for her removal was brought by the school district in which she served as an officer.
* “Child abuse” for such purposes is defined in Education Law §1125. Education Law §1126 provides, in pertinent part, as follows: Where an oral or written allegation is made to a ... school board member ... that a child has been subjected to child abuse by an employee or volunteer in educational setting, such person shall upon receipt of such allegation: (a) promptly complete a written report of such allegation including the full name of the child alleged to be abused; the name of the child’s parent; identity of the person making the allegation and their relationship to the alleged child victim; the name of the employee or volunteer against whom the allegation was made; and a listing of the specific allegations of child abuse in an educational setting.
** §100.2(hh)(2) of the Commissioner’s regulations provides that each school district is required to establish and to implement on an ongoing basis a training program regarding the procedures set forth in Article 23-B for teachers, administrators, various staff and school board members. The Commissioner urged the Board “to ensure that training of board members regarding Article 23-B is implemented on an ongoing basis.”
The Commissioner’s decision is posted on the Internet at:
The statute of limitations to challenge an administrative decision starts to run when the determination becomes “final and binding”
Fager v Board of Educ., Rochester City School Dist., 2010 NY Slip Op 04003, decided on May 7, 2010, Appellate Division, Fourth Department
Kevin Fager appealed the Supreme Court’s dismissal of his Article 78 petition after Supreme Court ruled that was untimely.
The Appellate Division said that “Supreme Court erred” in granting the school district’s motion to dismiss Fager’s petition as time-barred and reversed the lower court’s ruling.
The court observed that "A CPLR Article 78 proceeding must be commenced within four months after the determination sought to be reviewed becomes final and binding…..”
When does a decision become final and binding: “when it definitively impacts and aggrieves the party seeking judicial review."
In this instance the Appellate Division found that Fager had filed his Article 78 action less than four months after school district’s determination became final and binding.
N.B. A request submitted to the administrator or administrative body making the "final" determination for “reconsideration” of the decision does not toll the running of the relevant statute of limitations.
The decision is posted on the Internet at:
Source: New York State Department of Civil Service
The New York Department of Civil Service has published a Summary of the New York State Civil Service Law.
The Department describes the publication as a “newly-revised guide summarizes important aspects of the statutory basis for our State's merit system of public employment."
It was developed to provide readers with "a valuable reference tool that provides increased access to information about the laws, rules and regulations that affect the civil service system” in New York State.
The Summary is posted on the Internet at:
The text of the Alert is on the Internet at: http://www.harrisbeach.com/news/articleviewer.cfm?aid=871
Thursday, May 20, 2010
Failing to report wrongful conduct by another member of the Police Department results in a forfeiture of 30 days of vacation credits
Matter of D'Andrea, et al v Kelly, 2010 NY Slip Op 04234, decided on May 18, 2010, Appellate Division, First Department
New York City Police Commissioner found Gary D’Andrea and a number of other police officers serving with the Department, guilty of failing to report wrongful conduct by another member of the Police Department. The penalty imposed: forfeiture of 30 vacation days.
The officers appealed, contending that the Commissioner’s determination should be annulled because "the fact that there was a leak of information was known to everyone at the [Applicant Processing Division] and [they] … reasonably believed that the [Police Department] knew the source of the leak."
The Appellate Division dismissed their appeal, commenting that “Substantial evidence supports the finding that [the police officers], having improperly provided confidential information to a fellow officer, failed to notify proper authorities when [they] learned that the information had been leaked to a newspaper reporter."
The court also rejected the officers’ argument that the Department Advocate conceded that they "committed no misconduct when they provided the confidential information to the fellow officer."
The court’s rationale: “Regardless of whether the argument is correct as a matter of fact, it is wanting as a matter of law because [the police officers] knew that the leak had occurred and did not report it even though they unquestionably had information relevant to the issue of who had committed the misconduct."
Noting that the Assistant Deputy Commissioner who presided over the hearing in this matter considered "the otherwise fine service records" of the officers involved in determining the appropriate penalty for their misconduct, the Appellate Division said that the penalty imposed “does not shock our conscience.”
The decision is posted on the Internet at:
Adverse references to FMLA leave usage sufficient to defeat employer's claim that it terminated employee for performance deficiencies
Goelzer v. Sheboygan County, Wisconsin, No. 09-2283 (7th Cir. May 12, 2010)
Source: The FMLA Blog - http://federalfmla.typepad.com/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.
Dorothy Goelzer was a long-term employee of Sheboygan County, Wisconsin, serving as the administrative assistant to the County Administrative Coordinator, Adam Payne. She consistently received good performance evaluations.
In 2002 Goelzer began to have significant health issues necessitating the use of FMLA leave, which was approved. All told she used 312 hours of sick leave in 2002, the equivalent of nearly 39 days.
In her 2002 performance review Payne noted that Goelzer "had" an excellent attendance record in the past, but that she used 39 days of sick leave in 2002. Goelzer's health problems continued in 2003. She used 176 hours of approved FMLA leave for additional surgery and doctors appointments throughout the year, a fact noted by Payne in her 2003 performance review.
This time, however, he did not award her a merit increase. In response to Goelzer's challenge to the decision, Payne referenced her use of nearly 113 days of sick leave and vacation during the past two years. In 2004 she used 94 hours of sick leave. She took approved intermittent FMLA leave in 2004 and 2005 to care for her mother. While she received merit increases in 2004 and 2005, she was told that the increases were not more because of her absences to care for her mother.
In 2006, Goelzer requested two months of FMLA leave to undergo foot surgery. Her request was approved. In the meantime, Mr. Payne's position was changed to County Administrator. In his new position, he had the authority to discharge Goelzer on his own accord. Payne terminated Goelzer two weeks before she was scheduled to take FMLA leave. He hired a replacement sometime thereafter.
Goelzer filed suit alleging that her termination and failure to reinstate her from leave violated the FMLA. The County argued that Payne simply exercised his legal authority to replace Goelzer with someone of his own choosing who had a grater skill set, and that it had nothing to do with her exercise of FMLA rights.
In reversing the award of summary judgment for the County, the Seventh Circuit initially conceded that this was one possible explanation for the termination decision a jury might choose to believe. However, the Court went on to find that a jury might also choose to believe that the decision to terminate Goelzer was due to her protected FMLA activity. As evidence, the Court noted:
1. Comments made by Payne expressing frustration with Goelzer's use of FMLA leave in her past performance evaluations;
2. References in her performance evaluations contrasting her past "excellent" attendance with her current heavy FMLA leave usage;
3. Payne's explanation that Goelzer did not receive a larger merit increase because she took off too much time to care for her mother- on FMLA leave;
4. The absence of evidence in performance reviews evidencing Payne's alleged concern with her deficient skill set and consistent satisfactory performance ratings;
5. The absence of evidence that Payne had taken action to remove Goelzer for performance deficiencies before he received his promotion;
6. The absence of evidence that Payne was restructuring Goelzer's job to include a greater skill set; and
7. The fact that he terminated Goelzer shortly after her request for two months of FMLA leave.
Mr. Bosland comments: The FMLA prohibits an employer from interfering with or discriminating against an employee for exercising FMLA rights. It is also well established that an employee's exercise of FMLA rights does insulate the employee from performance-based adverse actions, including removal. However, in order to effectively establish that the adverse action is due to performance deficiencies and not the exercise of FMLA rights, the facts must be consistent with the employer's non-discriminatory explanation.
That was not the case in Goelzer. The references to leave usage, including FMLA leave, in annual performance evaluations, the denial of merit benefits based on leave usage, including FMLA leave, and the absence of evidence supporting the employer's assertion of deficient performance, led the Court to conclude that there was sufficient material facts at issue to defeat summary judgment. While the County may ultimately convince a jury that it did not violate the FMLA, the cost to litigate or settle this matter rose dramatically as a result of the Seventh Circuit's decision.
Employers would be well advised not to include references to FMLA usage in performance reviews, however benign the intention. If the employee does not receive perfect performance marks and the highest monetary bump, it is relatively easy for the employee to point to the reference to FMLA usage as the real reason for their less than stellar performance review. As demonstrated in Goelzer, that could be an expensive mistake.
The case also reaffirms that managers who have problems with an employee's performance need to address that problems. You might think that by giving an employee a satisfactory performance review you have really given them a bad review. In Goelzer, that strategy backfired. The satisfactory review undermined the County's argument that the employee was unsatisfactory, at least for purposes of summary judgment.
The Seventh Circuit covers Wisconsin, Illinois, and Indiana.
Wednesday, May 19, 2010
Matter of McCaffrey v Town of E. Fishkill, 42 A.D.3d 22
General Municipal Law §207-c(1) provides for the continuation salary payments to a police officer injured in the line of duty until such time as the officer is able to return to full duty or, in some instances, limited duty.
Town of East Fishkill police officer Jonathan R. McCaffrey was receiving benefits pursuant to §207-c when he applied for, and was granted, Social Security Disability Insurance [SSDI] benefits. Upon learning of this, the Town told McCaffrey that it would reduce the amount it was paying to him pursuant to §207-c by the amount he was receiving from the Social Security Administration as SSDI benefits.
The Appellate Division ruled that the Town could not do this because “the statute provides for no such setoff and that, therefore, there is no authority for a town to do so.”
Although the Town could discontinue McCaffrey’s §207-c salary continuation benefits upon his retirement for disability or upon his attaining the age of mandatory retirement, it could not simply “reduce” such payments as an offset to his SSDI benefits. According to the ruling, SSDI benefits do not constitute an accidental disability pension similar to the statutory allowance provided by Retirement and Social Security Law §§363 and 363-c.
In the words of the court: SSDI benefits are available only to persons totally disabled, i.e., who cannot perform even sedentary work. Thus, said the court, the SSDI program is not an “accidental disability pension” similar to the pensions available under the Retirement and Social Security Law, as would be required to support a setoff or deduction pursuant to General Municipal Law §207-c(2),” citing Matter of County of Erie v Hevesi, 17 AD3d 967.
In the view of the Appellate Division, “General Municipal Law §207-c is a statutory command that the Town continue to pay the salary of a disabled police officer despite the officer’s disability.” The Town was directed to pay to McCaffrey “the amounts that were improperly withheld from his paycheck, retroactive to July 8, 2005,” together with statutory interest.
The Appellate Division commented that “Whether it is fair or unfair for [McCaffrey] to receive both General Municipal Law §207-c payments and SSDI benefits is for the Legislature to decide.”
In contrast, in Farber v City of Utica, 97 NY2d 476, the Court of Appeals ruled that the employer may reduce the §207-a supplement it paid to a firefighter receiving a disability retirement allowance from the Retirement System by the amount of any cost-of-living [COLA] adjustments to the retirement allowance being paid by the System to the retired firefighter.*
In Farber the court ruled that the appointing authority “may take into account the [Retirement and Social Security Law] Section 378 supplemental allowance" in determining the amount of the §207-a supplement to which the retired firefighter is entitled.
* §207-a of the General Municipal Law provides that a disabled firefighter receiving a disability retirement allowance from the State Employees’ Retirement System is to paid a supplement to his or her retirement allowance so that he or she will receive a total benefit equal the salary he or she would have received had he or she remained in the employer’s service until his or her mandatory age of retirement.
The decision is posted on the Internet at:
For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2010 AELE
A prominent law firm has noted that social media now permeates the entire life cycle of employment: during pre-employment inquiries, throughout the period of employment, and after separation from employment.
Employers must fully consider the use and misuse of social media at each stage. The firm warned that employers that ignore the dangers of social media in the workplace risk legal liability and embarrassment.
The fact that an employee’s writings appear on an Internet profile does not mean that the conduct is private. As the armed forces appellate court has noted, an Internet profile “is the modern equivalent of standing on a street corner in uniform with a sign saying ‘I’m in the Army and I am a racist and Aryan extremist.’” U.S. v. Wilcox, #05-0159, 66 M.J. 442, 2008 CAAF Lexis 1216 (2008).
Public agencies in general, and law enforcement agencies in particular, should have a written policy on social networking, blogging, email and texting. Some of the areas that need to be addressed include the following:
1. A warning that misuse of electronic media will be grounds for disciplinary action, including termination.
2. A prohibition of the use of the agency’s name, logo, patch, badge, marked vehicles and other identifying symbols. Consider registering indicia as official trademarks.
3. A prohibition against posting one’s photograph while wearing the agency’s official uniform (or in a similar attire, which could be misidentified as the official uniform).
4. A ban on the disclosure of the agency’s confidential or proprietary information.
5. A rule that employees must not surf, post, text or blog during duty hours, unless for agency purposes.
6. A prohibition against using agency e-mail addresses to register for or to respond to social media sites.
7. A rule requiring all employees who maintain a blog, or who reply to blogs that identify the agency must identify themselves, and include a disclaimer that their viewpoints are personal, private, and do not necessarily reflect the position of the agency.
8. A policy that encourages employees to voluntarily refer work-related complaints to their supervisors or the [agency’s personnel office] before blogging or posting about such complaints.
9. A prohibition against knowingly or recklessly posting false information about the agency, superiors, coworkers, public officials and others who have a relationship to or with the agency. This should include the wrongful disparagement of fictitious characters that resemble known personnel or officials.
10. Exceptions to the agency’s electronic media policies must be approved, in writing, by the chief of the agency or designated subordinates.
In a 2009 presentation at the IACP annual conference, Orlando attorney Jody Litchford offered “Policy and practice tips for employers.” See Employment Issues Related to Electronic Communications at pp. 3-4, which is posted on the AELE website.
Litchfored advised that management should encourage employees to “interact positively” with an employer’s social networking site, and to have policies in place that ensure that the agency’s reputation is enhanced.
The article is posted on the Internet at:
Reargument of the issues presented in a prior appeal to the Commissioner of Education is not a basis for reopening the earlier appeal
Application of Janet C. Wilson to reopen an appeal from action of the Board of Education of the Harborfields Central School District, Decision No. 16,055
Janet C. Wilson asked the Commissioner to reopen her earlier appeal, reported as 47 Ed Dept Rep 448, Decision No. 15,750, which dismissed her challenge to the determination of the Board of Education of the Harborfields Central School District not to extend her employment contract.
The Commissioner declined to reopen the matter, citing §276.8 of the Commissioner’s regulations.
§276.8 provides that such applications are addressed solely at the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the initial decision was made.
Further, said the Commissioner, a reopening of an appeal may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal.
In Decision No. 15,750 then Education Commissioner Mills found, among other things, that at most there was a technical violation of board policy with respect to providing Wilson a notice of a meeting and that this “technical violation” did not entitle Wilson to an extension of her employment contract.
Although Wilson pointed out that New York State Supreme Court Judge Costello in Janet C. Wilson v. Bd. of Educ., Harborfields Central School Dist., Index No. 21707/07, subsequently concluded that the relevant notice “was inadequate under the Open Meetings Law,” the adequacy of notice was considered by Commissioner Mills in her prior appeal.*
The Commissioner concluded that Wilson did not demonstrate that Commissioner Mill’s decision was rendered “under a misapprehension of fact nor has she presented any new material evidence that was not available at the time the decision was made.”
Characterizing this appeal as an attempt to reargue the original appeal, the Commissioner said that “It is well settled that mere reargument of the issues presented in a prior appeal is not a basis for reopening an appeal” and dismissed the appeal.
* In reaching this conclusion, the decision notes that Commissioner Mills made no determination whether school district had complied with the provisions of the Open Meetings Law (Public Officer’s Law §100 et seq.). The Commissioner has consistently stated that he does not have jurisdiction to rule on allegations concerning the Open Meetings Law.
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16055.htm
Tuesday, May 18, 2010
As 2 of the 7 charges were not supported by substantial evidence, appointing authority directed to reconsider the disciplinary penalty imposed
Mason v Board of Fire Commissioners of Jericho Fire District, 2010 NY Slip Op 04199, Decided on May 11, 2010, Appellate Division, Second Department
A disciplinary hearing officer found volunteer firefighter Keith Mason guilty of seven charges of misconduct and recommended the termination of his membership with the Jericho Fire District. The Board of Fire Commissioners of the Jericho Fire District to adopted the findings and recommendation of hearing officer and terminated Mason’s membership with the fire district.
Mason appealed and the Appellate Division found that there was substantial evidence in the record to support finding Mason guilty of charges one through five, which involved his removing a primary piece of fire department equipment (a saw) from a front line fire truck, without permission and for his personal use.
However, said the court, the Board's determination that Mason was guilty of charges six and seven, involving an alleged violation of a "Chief's order," was not supported by substantial evidence in the record, as Mason was not on duty at the time of the alleged misconduct.
The Appellate Division granted Mason’s petition “to the extent that so much of the determination as found [him] guilty of charges six and seven and as imposed a penalty.”
The matter was then remanded to the Board of Fire Commissioners for a new determination as to the penalty to be imposed based solely on the remaining five charges that were supported by substantial evidence.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04199.htm
County not required to defend or indemnify an employee being sued if alleged act or omission was not within the scope of the employee’s duties
Rew v County of Niagara, 2010 NY Slip Op 04009, decided on May 7, 2010, Appellate Division, Fourth Department
Public Officers Law §17, with respect to State officers and employees and Public Officers Law §18, with respect to officers and employees of political subdivisions of the State, provide for the defense and indemnification of such persons being sued as a result of an act or omission in the performance of their official duties.
Michael J. Rew initiated a lawsuit naming "John Doe" among the several respondents listed in his complaint. Rew was seeking damages for injuries he sustained as the result of his being shot by Doe, a deputy sheriff employed by County of Niagara Sheriff''s Department. Doe was named as a respondent and characterized as the "being [the] deputy on duty and involved in [the] shooting incident."
Doe asked Supreme Court to dismiss Rew’s action on the representation that Rew failed to name him in the notice of claim, contending that General Municipal Law §50-e bars an action against an individual who has not been named in such notice of claim. When Supreme Court dismissed Doe’s motion he appealed, arguing that such notice was a “condition precedent” to Rew’s maintaining an action against him.
Not so, said the Appellate Division. Such a notice "is not a condition precedent to the commencement of an action against [Doe] unless the county is required to indemnify [him]."*
Further, a county's duty to indemnify an employee  "turns on whether [the individual was] acting within the scope of [his or her] employment" and  "whether the obligation to indemnify the individual was formally adopted by a local governing body."
In this instance, said the Appellate Division, even if County was required to indemnify Doe, [which was not clear that it was based on the record before the court], Rew alleged that Doe "did willfully, maliciously, and intentionally discharge his weapon and shoot without provocation."
Thus, "the conduct of [Doe] as alleged in the complaint amounts to [an] intentional tort." The Appellate Division ruled that under the circumstances, the acts alleged by Rew falls outside the scope of Doe’s employment and thus is not encompassed within the County’s duty to indemnify him should Rew prevail.
Accordingly, naming Doe in any notice of claim otherwise required by General Municipal Law §50-e is not, under the circumstances, a "condition precedent" to Rew maintaining his lawsuit against Doe.
* See Public Officers Law §18  [a], [b];  [a]
The decision is posted on the Internet at:
Dismissed probationer has the burden of showing the termination was for an unlawful or other improper conduct
Johnson v New York City Dept. of Education, 2010 NY Slip Op 04195, decided on May 11, 2010, Appellate Division, Second Department
Citing Matter of Swinton v Safir, 93 NY2d 758, the Appellate Division said “A probationary employee may be discharged without a hearing* and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."
Finding that Beulah P. Johnson, a probationary librarian employed by the New York City Department of Education, failed to carry her burden of presenting competent proof that her termination was in bad faith, for illegal reasons, or in violation of statutory or decisional law, the Appellate Division affirmed Supreme Court’s dismissal of her petition seeking to overturn the Department’s decision to terminate her during her probationary period.
In the words of the court, Johnson “failed to meet her burden of demonstrating that the judgment was procured as a result of fraud, misrepresentation, or other improper conduct” on the part of the New York City Department of Education.
* N.B. Case law hold that a probationary employee is entitled to notice and hearing in the event he or she is being terminated prior to the completion of his or her minimum period of probation. The rationale advanced by the courts for this exception: an individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.
The decision is posted on the Internet at:
Monday, May 17, 2010
Mere conclusion that individual was properly appointed to public office insufficient to establish a standing to sue
Brown v Foster, 2010 NY Slip Op 04185, Decided on May 11, 2010, Appellate Division, Second Department
Mary F. Foster, as Mayor of the City of Peekskill, directed Leesther Brown “to refrain from exercising the duties and responsibilities of the offices of Commissioner and Chairperson of the City of Peekskill Housing Authority Board as the certificates of her appointment to those offices had not been filed with the Commissioner of the New York State Division of Housing and Community Renewal.”*
Claiming that she had been "duly" appointed for a term commencing on February 24, 2007, and ending on February 23, 2010, Brown filed an Article 78 petition in Supreme Court challenging the Mayor’s directive. Supreme Court granted the Mayor’s motion to dismiss Brown’s petition “for failure to state a cause of action” and dismissed the proceeding.
Brown appealed but the Appellate Division sustained the lower court’s ruling.
The Appellate Division said that for the purposes of considering the matter, all of the allegations in Brown’s petition are deemed true, and Brown is accorded the benefit of every possible inference.
Here, however, said the court, Brown’s petition failed to allege that she was properly appointed to the offices of Commissioner and Chairperson of the City of Peekskill Housing Authority Board as it does not claim that the relevant certificates of reappointment were filed with the Commissioner of the New York State Division of Housing and Community Renewal, as required by Public Housing Law §30(2).**
Brown’s petition, said the court, presented the “bare legal conclusion” that she was "duly appointed" to these offices for a term ending on February 23, 2010. The Appellate Division ruled that this was insufficient to make out a claim that Brown was appointed to her positions in accordance with requirements set out in §30(2).
The Appellate Division also noted that Brown’s lawsuit named the City of Peekskill as a respondent in her Article 78 petition.
However, said the court, the City itself is not a proper party to the action as only the mayor of the City had the authority to appoint Brown or direct her to refrain from exercising the duties and responsibilities of the offices of Commissioner and Chairperson of the City of Peekskill Housing Authority Board.
* On August 5, 2009 Peekskill’s “Journal News” reported that “Leesther Brown, a former chairwoman of the city's housing board, is set to run an independent campaign for the mayor's office.”
** §30.2 controls in this instance as the Peekskill Housing Authority was not created by a special act of the legislature. Accordingly, the mayor is required to file with the Commissioner of Housing “a certificate of appointment or the reappointment of any member” to effect such appointments.
The decision is posted on the Internet at:
Appointing authority must diligent in avoiding even the appearance of any personal involvement in making a disciplinary determination
Matter of Baker v Poughkeepsie City School Dist., 2010 NY Slip Op 04184, decided on May 11, 2010, Appellate Division, Second Department
The Board of Education of the Poughkeepsie City School District, after receiving and adopting the findings and recommendations of a hearing officer, dismissed Jeffrey Baker from his position.
The hearing officer had found Baker, the District’s Business Manager, guilty of eight charges of misconduct and, or, incompetence.
Baker challenged the Board’s action complaining that in the course of the disciplinary hearing, two members of the Board testified and subsequently the Board, including the members who had testified at the disciplinary hearing, issued a final determination adopting the hearing officer's findings and recommendations, and terminating his employment.
The Appellate Division sustained Baker’s appeal, annulled the Board’s determination and remanded the matter back to the Board for its reconsideration, excluding the members of the Board of Education of the Poughkeepsie City School District who testified at the disciplinary hearing.
The court charged the Board with  reviewing the findings and recommendations of the hearing officer;  determining of the amount of back pay and benefits owed to the Baker, if any, and  making for a new determination with respect the charges and the penalty, if any, to be imposed.
The decision notes that “Due to their personal involvement in the matter, the two members of the Board who testified at the disciplinary hearing should have disqualified themselves from reviewing the recommendation of the hearing officer and acting on any of the charges.”
This is so in order to avoid any question as to the impartiality. In Informal Opinions of the Attorney General, 99-21, 7/19/99, the Attorney General, considering the impartiality of a disciplinary tribunal, said that this “is a critical element in any disciplinary action … even the appearance of any impropriety must be avoided.
Here the Attorney General concluded that a trustee should recuse herself as a member of the disciplinary tribunal because “the trustee may not be able to make an impartial judgment solely in the public interest if her son is called as a witness.” Under the circumstances the Attorney General concluded that “there is at least an appearance of impropriety” and thus the trustee should recuse herself and “should not participate in or be present at the hearing, any deliberations, including deliberations conducted during an executive session of the board of trustees, or the determination of the disciplinary proceeding….”
Another example: The Appellate Division annulled the dismissal of Saratoga County’s director of data processing, who had been found guilty of sexual harassment and incompetence [Ernst v Saratoga County, 234 AD2d 764.] The court concluded that Ernst had been denied a fair and impartial tribunal because the Chair of the County Board of Supervisors had (a) met with the county’s attorneys “to discuss the pending investigation;” (b) met with the employees involved; (c) signed the notice of the charges against Ernst; (d) voted to bring charges against Ernst; (e) served as a witness at the disciplinary hearing and (f) voted to accept a hearing officer’s findings of guilt and impose the recommended penalty.
As to the Appellate Division's directing the Board to determine if any back pay and, or, benefits were due Baker, in another case, Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, the Court of Appeals ruled that that "[a] disciplinary proceeding will be voided and the status quo ante restored when there has been some error that taints the entire proceeding … such as [lack of] jurisdiction or bias of the presiding officer…."
In the event the disciplinary decision is annulled, such back salary and benefits are to be paid to the individual even if the subsequent determination is that the employee is guilty of one or more charges and the penalty imposed is, again, dismissal.
The Baker decision is posted on the Internet at:
Sunday, May 16, 2010
Donohue v Paterson, USDC, Northern District of New York, CV-00543
A federal district court judge, concluding that the unions' actions alleging proposed actions by the Governor would violate the rights of the employees they represent in violation of Article I.10.1 of the U.S. Constitution has a likely chance of success, has issued a temporary restraining order prohibiting placing state workers on furlough pending a review of their complaint on the merits.
The Court's decision is posted on the Internet at:
Thursday, May 13, 2010
Incumbent serving a term appointment not reappointed for a succeeding term serves as a “holdover” until replaced or terminated from the position
Slagle v Keeney, 2010 NY Slip Op 04004, Decided on May 7, 2010, Appellate Division, Fourth Department
Richard E. Slagle sued the Village of Celoron contending that he was wrongful termination of his employment as a Village Code Enforcement Officer in August 2009.
The Village appealed Supreme Court's rejection of its motion to dismiss Slagle’s petition.
The Appellate Division commenced its review of the Village's appeal by noting that the position in question, Code Enforcement Officer, was filled by means of a “term appointment.”*
It was conceded that Slagle’s predecessor term of office ended in March 2007 and that Slagle was appointed to the position in April 2008. The question presented to the court: What was Slagle’s status when he was terminated from the position in August 2009?
If Slagle’s predecessor had been reappointed to the position in March 2007 and subsequently vacated the position, Slagle term would have been "for the balance of [the] unexpired term" of his predecessor pursuant to Village Law §3-312(3)(a), i.e., through March 2009.
If no action was taken to reappoint Slagle's predecessor in 2007, then the predecessor held the position through April 2008 in a holdover capacity until March 2008 when Slagle was appointed to the position for its remaining term -- i.e., through March 2009.
The Appellate Division cited Public Officers Law §5 which provides that "An appointment for a term shortened by reason of a predecessor holding over shall be for the residue of the term only" as its authority for this result.
Thus, regardless of the "incumbered status" position at the time of Slagle's appointment, Slagle's term of office ended in March 2009, and to the extent that he continued to serve in such office after that date, it was as a “holdover appointee.”
Finding that Slagle was not serving in the capacity of a person reappointed to the position for a term certain, the Appellate Division concluded that his term of office ended in March 2009, prior to his termination in August 2009, and reversed the lower court’s ruling and granted the Village’s appeal.
* The Village's Local Law No. 2-1985 provides that the term of office for the position of Code Enforcement Officer is for two years.
Other statutes may provide for term appointments. For example, §15(b) of the Civil Service Law provides that "The term of office of a [county] personnel officer shall be six years." Such a personnel officer has all the powers and duties of a municipal civil service commission. The same is true with respect to "regional personnel officers" [see §15(d)].
The decision is posted on the Internet at:
Alleged abolishment of positions in violation of a provision in a CBA held to be subject to grievance arbitration
Matter of Johnson City Professional Firefighters Local 921 v Village of Johnson City, 2010 NY Slip Op 02890, Decided on April 8, 2010, Appellate Division, Third Department
Supreme Court, Broome County, denied the Village of Johnson City’s petition to stay arbitration between the parties concerning the Village’s abolishment of certain firefighter positions. The Village appealed, contending that Union's grievance should not be submitted to arbitration because restrictions on the Village's right to abolish positions would violate public policy and interfere with the statutory mandate of Civil Service Law §80.
The Appellate Division sustained the lower court’s determination noting:
The CBA provides that "[t]he Village shall not lay-off any member of the bargaining unit during the term of the contract" (hereinafter the no-layoff clause).
The CBA also includes a grievance procedure by which disputes "involving the interpretation or application of any provisions of [the CBA]" are subject to binding arbitration.
Here, said the court, the Village abolished the positions of six firefighters, alleging that this action was required by economic distress. The Union and the firefighters filed a grievance asserting that the Village's action violated the CBA's no-layoff provision.
The Appellate Division said that in deciding whether a grievance is arbitrable, "[w]e first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance," citing Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273.
If, said the court, there is no such prohibition, "we then examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue.”
In this instance the Appellate Division found that the CBA's no-layoff clause is not subject to any prohibition against arbitration as a public employer does not violate public policy by voluntarily including a reasonable job security provision in a CBA.*
As to the second prong of the test, the Appellate Division said that the grievance is arbitrable if the parties have agreed to do so. Here the court found that the relevant CBA sets out a broad grievance and arbitration provision, whereby disputes "involving the interpretation or application of any provisions of [the CBA]" are subject to arbitration.”
As the current dispute depends on the interpretation of the CBA's no-layoff clause in order to determine whether that provision is applicable to the Village's action in abolishing six firefighters' positions, the court ruled that this was an issue that the parties agreed to submit to arbitration.
Thus, said the court, Supreme Court properly determined that the parties' substantive disagreement as to the meaning and application of the no-layoff clause is to be resolved by arbitration and dismissed the Village’s appeal.
* The Appellate Division noted that public policy limitations on arbitrability are rare and "almost invariably" involve a nondelegable constitutional or statutory duty,” citing Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660
The decision is posted on the Internet at:
Wednesday, May 12, 2010
A probationary employee may terminated without a hearing or explanation absent dismissal in violation of law or for an unconstitutional purpose
Matter of Bienz v Kelly, 2010 NY Slip Op 04035, decided on May 11, 2010, Appellate Division, First Department
New York City Police Commissioner Raymond Kelly terminated probationary police officer Christopher E. Bienz based on Bienz’s alleged substandard performance.
Dismissing Bienz’s petition seeking reinstatement to his former position, the Appellate Division said that "[i]t is well settled that a probationary employee may be discharged without a hearing* and without a statement of reasons in the absence of any demonstration that [the probationer's] dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law."
Here, said the court, Bienz failed to provide any evidence of bad faith. Further, the Appellate Division said that Bienz’s allegations that he was the target of animosity by some police department personnel did not rise to the level of constitutionally impermissible conduct, or conduct in violation of any law or statute.
In the view of the court, Bienz’s “substandard performance history” provided a rational basis for Commissioner Kelly’s determination, especially as Bienz “was given ample opportunity to improve.”
Another element in this case noted by the Appellate Division: Bienz was terminated in lieu of facing formal charges and specifications of misconduct. In this regard, however, the court ruled that Bienz “only raises factual disputes that do not entitle him to a hearing” and do not demonstrate bad faith on the part of Commissioner.
N.B. In some instances the rules of the civil service commission having jurisdiction may impose limitations controlling the termination of an individual during his or her probationary period. The Scherbyn case [Scherbyn v Wayne-Finger Lakes BOCES, 77 NY2d 753], illustrates this exception to the general rule permitting the dismissal of probationary employees.
In Scherbyn it was held that where the rules of a civil service commission specifically set out the reasons for which a probationary employee may be dismissed, the appointing authority's broad discretion with respect to terminating the services of probationers is subject to the limitations imposed by those standards.
* Case law indicates that a probationary employee may be terminated at any time after the completion of his or her minimum period of probation prior to his or her completion of the maximum period of probation unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.
The decision is posted on the Internet at:
Education Law §3813 notice of claim involving “a matter of personal interest” distinguished from vindicating a “matter of public interest”
Matter of Harris v Board of Educ., Union Springs Cent. School Dist., 2010 NY Slip Op 03996, Decided on May 7, 2010, Appellate Division, Fourth Department
The Appellate Division confirm the determination of the Union Springs Central School District’s Board of Education’s dismissing Thomas Harris from his position of a school bus driver noting that the Board “was not bound by the Hearing Officer's recommendation in determining the appropriate penalty.” It then said that it concluded that the “penalty of dismissal is not ‘so disproportionate to the offense as to be shocking to one's sense of fairness,’" citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.
However a preliminary consideration was required to be made by the court: did the notice of claim served on Harris' behalf by the union representing employees of School District complied with "notice of claim" requirement set out in Education Law §3813?
The Appellate Division concluded that the union’s “notice of claim” properly complied with Education Law §3813 as "The prime, if not the sole, objective of the notice requirements of such a statute is to assure the [respondents] an adequate opportunity to investigate . . . and to explore the merits of the claim while information is still readily available."
In this instance, said the court, the notice of claim served by the union satisfied that objective.
Filing a timely notice of claim is often critical to going forward with a lawsuit involving a school district or a BOCES.
Essentially such notice is required when the individual is seeking to vindicate what the court will deem a private right as was the case in Stevens v McGraw CSD, 261 A.D.2d 698.
Here McGraw Central School District bus driver Arthur Stevens' failure to comply with Education Law §3813 proved fatal to his challenging his dismissal from his position following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.
The hearing officer found Stevens guilty of seven of the charges preferred against him and recommended that he be discharged. The district accepted the hearing officer's findings and recommendation. When Stevens challenged his termination, the district raised the technical defense that Stevens had failed to comply with notice of claim requirements set out in §3813 of the Education Law.
The Appellate Division affirmed a lower court's ruling dismissing Stevens' Article 78 action, holding that "the mere fact that [Stevens] seeks only reinstatement to his former position, as opposed to reinstatement coupled with back pay and benefits, does not exempt him from the requirements of Education Law Section 3813, as a review of the petition makes clear that [Stevens] nonetheless primarily is seeking to enforce a private right" [emphasis supplied].
In contrast, in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights" [emphasis supplied].
Presumably this means that although a teacher who is terminated for cause pursuant to §3020-a of the Education Law is not required to file a notice of claim as a condition precedent to his or her filing an appeal pursuant to Article 75 of the CPLR, [see Education Law §3020-a.5], a person in the classified service who is terminated after a §75 hearing must satisfy the requirements of §3813 in order to file an Article 78 action challenging the disciplinary action as otherwise permitted pursuant to §76 of the Civil Service Law.
It would seem that the fact that the Civil Service Law providing an aggrieved employee with a statutory right to appeal an adverse disciplinary action to a civil service commission or to the courts via a CPLR Article 78 petition should have the same standing with respect to such an employee's "tenure rights" as is provided pursuant to §3020-a.5 insofar as the "tenure rights" of educators are concerned, i.e. such rights should also be considered “matter of public interest.”
The lessons here: lawsuits based on what the courts determine involve efforts to vindicate a "private interest" such as the denial of a benefit resulting from an alleged violation of a provision set out in a Taylor Law agreement or a penalty imposed following a disciplinary action must comply with the procedural requirements set out in §3813 unless there is clear evidence that the school district has waived its right to such notice as exemplified by the Lakeland decision.*
Accordingly, although exceptions to the "notice of claim" requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district consistent with the provisions set out in §3813(1) rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
* In CSEA v Lakeland Central School District, 230 A.D.2d 703, the Appellate Division rejected the School District's theory that CSEA's action for damages "for breach of a collective bargaining agreement" should be dismissed because CSEA had not complied with the "notice of claim" requirements set out in §3813 of the Education Law. The Court said that "the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement" by the School District.
The Harris decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03996.htm
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