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Tuesday, June 29, 2010

Provisional employee has no right to continued employment as a provisional

Provisional employee has no right to continued employment as a provisional appointee
Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]

In the Singletarly case Judge Gammerman sets out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee. In a nutshell, the court held that provisional appointments cannot, “with one rare exception inapplicable here,* ripen into a permanent appointment” and provisional employees have no civil service status and acquire no vested rights by virtue of their temporary or provisional service.

Singletarly was serving as a permanent Fraud Investigator, a position in the noncompetitive class. The New York City Department of Homeless Service provisionally appointed him to a vacant Associate Fraud Investigator position, a competitive class position, effective February 20, 1998.

On June 8, 1998 the Department reinstated him to his permanent title, Fraud Investigator. Claiming that this change constituted a “demotion,” thus entitling him to notice and a hearing within the meaning of Section 75 of the Civil Service Law, Singletarly sued.

Justice Gammerman dismissed Singletarly petition, noting that as his “appointment was a provisional appointment from the non-competitive class” and as he never took or passed a civil service examination** for any position or title, nor was he on or selected from an eligibility list” ... Singletarly “has no entitlement to any position or to any particular title.”

Describing Singletarly’s status as a provisional employee as that of “an employee at will” Justice Gammerman concluded that Singletarly “could be terminated from any position without good cause.”***

The court also briefly analyzed the status of a provisional employee, commenting that when there is no appropriate eligibility list available for filling a [wholly] vacancy in the competitive class the position may be filled on a provisional basis.

A provisional employee, however, has no expectation of tenure rights, including the right to notice or hearing prior to termination, or being given the reason for his or her termination. Thus, said the court, “a provisional employee may be terminated at any time without charges proffered, a statement of reasons given or a hearing held.”

* The “rare exception” referred to by the Justice Gammerman is probably the one leading to the decision in Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611. In Roulett the court held that the continued provisional employment of a person eligible for permanent appointment to the position when the individual is qualified for permanent appointment from a nonmandatory eligible list results in that individual being deemed permanent in the position upon the completion of the period of probation otherwise required [Section 64.5, Civil Service Law].

** Section 52 of the Civil Service Law authorizes the State Department of Civil Service to allow noncompetitive and labor class employees in the service of the State to compete in promotion examinations when such examinations are held in conjunction with open competitive examinations for the same title.

*** This, however, may not be entirely accurate with respect to Singletarly insofar as termination from his noncompetitive class position is concerned if he (1) is a veteran who served in time of war or is an exempt volunteer firefighter or (2) satisfies the requirements set out in Section 75.1(c) of the Civil Service Law. Further, a collective bargaining agreement negotiated pursuant to the Taylor Law may give persons not otherwise protected by Section 75 certain pre-termination due process rights.

Monday, June 21, 2010

Disciplinary probation

Disciplinary probation
Feliciano v Safir, Supreme Court, [Not officially reported]
Garnett v Safir, 253 A.D.2d 700, Motion for leave to appeal denied, 92 N.Y.2d 817

The Feliciano Case:

Although the specific events underlying the Feliciano case are but rarely encountered, the decision demonstrates that an employee’s “disciplinary probation status” may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status.

Nelson Feliciano became a New York City police officer when the New York City Transit Authority Police Department [TAPD] was merged with the New York City Police Department [NYPD] in April 1995. Feliciano was serving a “dismissal probation” as a result of his settlement of disciplinary charges that had been filed against him by TAPD when the merger took place.

NYPD required Feliciano to sign a waiver allowing it to assume jurisdiction over the disciplinary charges as a condition of his transfer to NYPD.

NYPD dismissed Feliciano effective October 30, 1997 without holding a pre-termination hearing because of his alleged misuse of sick leave.

Feliciano had called in sick on April 30, 1997. When an officer from the NYPD’s Absence Control and Investigations Unit (“ACIU”) appeared at Feliciano’s house at about 2:00 p.m. the next day, “Feliciano was inexplicably not at home.”

Feliciano called the ACIU and represented to one of the ACIU officers that he had a valid medical pass which excused his absence from his home between the hours of 4:00 p.m. and 8:00 p.m. through May 1, 1997. Upon checking, ACIU learned that Feliciano’s medical pass expired on April 23, 1997. When confronted with this information, Feliciano apologized for his “misstatement” about the validity of his medical pass. Ultimately NYPD dismissed Feliciano.

Claiming that “[w]ithout the waiver, the disciplinary matter could have been resolved in a much more favorable manner and ... [he] would not have been on probation,” Feliciano sued. He asked the court to order his reinstatement with back salary and benefits. In addition Feliciano contended that [1] Safir acted arbitrarily and capriciously by dismissing him without benefit of a pre-termination hearing; [2] the penalty imposed was excessive; and [3] the decision to terminate him was made in bad faith.

Justice Cozier dismissed Feliciano’s petition, noting that “[u]nless there is a demonstration of bad faith or a constitutionally or statutorily impermissible purpose, the Commissioner has broad discretion to terminate probationary employees at any time, without stating a reason, and without a pre-termination hearing.”

The decision notes that Feliciano failed to comply with sick-leave regulations, an infraction which was subject to summary dismissal. As Feliciano had abused the NYPD’s sick leave regulations, which go directly to his ability to perform his job duties in a satisfactory manner, Justice Cozier concluded that because Feliciano was a probationer, a pre-termination hearing was not required and ruled Feliciano’s dismissal from his position with NYPD lawful under the circumstances.

The Garrett Case:

The facts in the Garrett case are more typical of the disciplinary probation situations.

Renee Garrett, another New York City police officer, was found guilty of various disciplinary charges and was suspended without pay for 60 days. She was also placed on a “one-year disciplinary probationary dismissal” effective January 24, 1997. On July 9, 1997, the Commissioner terminated her.

According to the decision, Garrett’s disciplinary probation was imposed after she was found guilty following allegations that [1] she was absent without permission from her assigned post; [2] she failed to perform her duties as directed; and [3] she engaged in an oral altercation and was discourteous to a superior officer.

Garrett sued, challenging the underlying disciplinary action and penalty and, in addition, contending that she was unlawfully terminated as a probationer and that she was dismissed in bad faith.*

The Appellate Division, First Department, upheld Garrett’s dismissal, commenting that “her termination within the probationary period was validly premised upon misconduct predating the commencement of the probationary period.” It noted that she had been found guilty of charges filed against her and that “the penalty of probationary dismissal does not shock our sense of fairness, particularly in light of [Garrett’s] less than exemplary service record.”

The court then said that Garrett’s probationary termination was justified by an incident during the probationary period. According to the decision, Garrett was “late in relieving another officer from her post.”

Accordingly, Garrett had no right to a pre-termination hearing under the circumstances. As to Garrett’s claim that her termination was made in “bad faith,” the Appellate Division simply noted that “there is no credible evidence to support [her] allegations.”

* Garrett had challenged both the disciplinary determination of January 24, 1997 and her probationary termination of July 9, 1997. Both actions were consolidated and considered in this appeal.

The text of the opinion is at:

If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

Monday, June 14, 2010

Applying the confidentiality provisions of Civil Rights Law §50-a

Applying the confidentiality provisions of Civil Rights Law §50-a
Matter of Crowe v Kelly, 38 AD3d 435

Kieran Crowe, a New York City police lieutenant, was served with a notice of discipline setting out disciplinary charges and specifications based on allegations made by two of the sergeants he supervised. He entered pleas of not guilty to these charges and invoked his right to a hearing.

Crowe asked for “copies of specified confidential documents” concerning the two sergeants’ alleged misconduct unrelated to the disciplinary charges served on Crowe. When the Department refused to provide Crowe with this information, he asked Supreme Court to issue an order directing the Department to provide him with the records. Following an in camera* review of these records by the court, the Department was directed to produce certain records from the sergeants’ disciplinary files for use at Crowe’s administrative hearing.

The Appellate Division vacated the lower court’s order. It said that the records “…fell within the ambit of the confidentiality provisions of Civil Rights Law §50-a.”

According to the ruling, in order to overcome the confidentiality requirements applicable to the personnel records of police officers, firefighters and certain other civil servants, satisfying each the following requirements is critical:

1. The court to which such application for disclosure is made must conduct a hearing on the application, giving all interested parties an opportunity to be heard.

2. The party requesting disclosure has the initial burden of making “a clear showing of facts sufficient to warrant the judge to request records for review.”

At the conclusion of the hearing, if the requisite showing is made, the court can order that the records be sealed and delivered to it.

After conducting an in camera inspection, the court must make a finding that such records, or portions thereof, are “relevant and material” to the underlying action before it can release those records to the person requesting them.

The Appellate Division ruled that the documents in question have no direct bearing on any issue in Crowe’s disciplinary hearing except with respect to the credibility of the sergeants. The sole use of the sergeants’ disciplinary records would be as extrinsic evidence to contradict or refute any false or evasive testimony the sergeants may give when questioned on cross-examination regarding these prior acts of misconduct to impeach their credibility. This, said the court, falls squarely within the collateral evidence rule. But, noted the Appellate Division, Crowe, “as the sergeants’ supervisor, already has sufficient knowledge of the facts surrounding the prior acts of misconduct that can be adduced during cross-examination.”

Under these circumstances, the Appellate Division ruled that the “protections afforded to disciplinary records should not be set aside” and vacated the order issued by Supreme Court.

* Typically, an in camera review of documents is conducted by the judge in private rather than in open court.

The decisions is posted on the Internet at:

Friday, June 11, 2010

Employee’s placement on involuntary administrative leave alleged to constitute defamation and infliction of emotional distress

Employee’s placement on involuntary administrative leave alleged to constitute defamation and infliction of emotional distress
Clark v Schuylerville Cent. School Dist., 2010 NY Slip Op 04902, Decided on June 10, 2010, Appellate Division, Third Department

Linda Clark, a teacher at Schuylerville Central School District, was placed on administrative leave after showing the R-rated movie Macbeth to her 10th grade class “in violation of the [d]istrict's policy and procedures."].

Clark sued the School District and others, alleging defamation and intentional infliction of emotional distress.

Here the Appellate Division considered certain allegations made by Clark in the third of three appeals.

In the previous appeal the court said that the only surviving claim concerned Clark’s “cause of action for defamation” based on statements that Clark alleged were made by the principal of Schuylerville Junior/Senior High School, Thomas S. Martin. Clark had appealed a Supreme Court ruling that denied her motion to compel the District and Honeywell to give additional deposition testimony. The Appellate Division affirmed the Supreme Court’s ruling.*

In this, the third appeal, Clark asked the Appellate Division to vacate a Supreme Court order that granted the school district’s motion dismissing Clark's sole remaining cause of action for defamation, and denied Clark's motion for a default judgment based upon the alleged spoliation of evidence.** The Appellate Division affirmed Supreme Court’s rulings.

The Appellate Division explained that Clark’s defamation claim was based upon her assertion that Martin told the District's attorney that Clark had shown an "R" rated film to students in violation of the District's policies and procedures.

Martin, however, denied ever having made the statement alleged in the complaint and Clark, said the Appellate Division, failed to raise a triable issue of fact in that regard.

Notwithstanding Martin’s denial, however, the Appellate Division noted that even had Martin made such a statement, Clark conceded that in the absence of such statements having been made with malice, the doctrine of “qualified privilege” would have applied as “the communication occurred between persons with a common interest in the subject matter.”***

As to Clark’s claim that the statements she alleged had been made by Martin constituted “malice,” the Appellate Division commented that malice includes spite, ill will, knowledge that a statement is probably false or a reckless disregard for its falsity, and that "spite or ill will refers not to speaker’s general feelings about the individual, but to the speaker's motivation for making the defamatory statements"

On this issue, the court concluded that Clark “failed to present any competent evidence that the alleged statement was ‘made with an intent to harm [her,] . . . with a reckless disregard for [its] truth, . . . [or] solely because [Martin] disliked [her],’ thus she failed to demonstrate an issue of fact regarding the existence of malice sufficient to defeat the qualified privilege.

As to Clark’s seeking sanctions on based on her allegations of “spoilage of evidence,” the Appellate Division decided that the record did not support a conclusion that Martin improperly destroyed documents related to this action. Further, said the court, Clark’s “vague and speculative allegations regarding prejudice arising from the alleged destruction of documents do not support a claim of spoliation.”

* Clark v Schuylerville Cent. School District, 57 AD3d 1145. The Appellate Division sustained a Supreme Court ruling that denied Clark’s motion to compel District officials and Honeywell, the District’s attorney, to give additional deposition testimony. The court said that the District its burden of establishing that the attorney-client privilege attached as the school officials were seeking legal advice from their attorney relating to the management of the District's teaching staff, and that their conversations with their attorney were “confidential and private."

** “Spoliation of evidence” refers to the intentional or negligent withholding, or destruction of relevant evidence in a legal proceeding.

Under certain conditions even a false statement made by a superior concerning an employee may subject to what is termed a "qualified privilege" if the statement was made without malice in the course of a public officer's or employee's performance of his or her official duties. In such cases the employer may defend itself on the basis of "good faith" notwithstanding the fact that the statement is later shown to be false. In any event, the privilege is lost if the objected to material is given to an “unprivileged person” or to both privileged and unprivileged persons. [See, generally, Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250.]

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04902.htm

Wednesday, June 09, 2010

Writ of mandamus granted compelling employer to pay retiree for accrued vacation credits

Writ of mandamus granted compelling employer to pay retiree for accrued vacation credits
Matter of Sabatino v Suffolk County, 2010 NY Slip Op 04797, Decided on June 1, 2010, Appellate Division, Second Department

From July 3, 1984, until December 31, 2003, Paul Sabatino II served as Counsel to the Suffolk County Legislature. He retired as Chief Deputy Suffolk County Executive, after 30 years of service to Suffolk County in various positions as a "managerial exempt employee."

Upon his retirement Suffolk County paid Sabatino for accrued vacation in the amount of 630 hours. Sabatino, however, contended that he was entitled to be paid for an additional 444 hours of accrued vacation time,* or a total of 1074 hours of credit.

Sabatino argued that the additional 444 hours of accrued vacation credit was due him, having been "previously approved" by Suffolk County Resolution No. 659 on January 1, 1989. When the County declined to pay him for these additional 444 hours of vacation credit, Sabatino filed a petition in the nature of mandamus** seeking a court order compelling the County to pay him the additional amount he claimed was due him.

Supreme Court granted Sabatino’s petition; the Appellate Division affirmed Supreme Court’s action.

The Appellate Division said that Suffolk County Resolution No. 659 was subsequently enacted as Suffolk County Administrative Code §631-1(C). It provides that "Upon separation from County service by retirement, … an exempt employee shall be granted payment by the County for unused vacation time for all unused vacation time accrued prior to December 31, 1988, which has vested in such exempt employee as of that date and remains unused at the time of separation …."

In this instance, said the court, “it is clear from the record” that, prior to the effective date of §631-1(C), Sabatino, then a member of the "legislative personnel" of Suffolk County, was granted written approval by the Presiding Officer of the County Legislature to carry over the 444 hours of his vacation credits. Accordingly, the Appellate Division held that consistent with the terms of §631-1(C), “those 444 hours vested in him, and he was entitled to be paid for them upon his retirement from service with the County.”

The Court also commented that “While a municipality's interpretation of its local laws is entitled to great deference, and its interpretation will be upheld if it is not irrational, unreasonable, or contrary to governing language,” in situations where the issue involved is one of the “pure legal interpretation,” such deference is not required.

Ruling that Supreme Court properly determined that Sabatino satisfied the requirements of §631-1(C), the Appellate Division said that the County “may not impose additional requirements which are not present” in the Code.

* The cash value of the 444 hours of the unused vacation accruals claimed by Sabatino: $40,221.97.

** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send it record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:

Out-of-title work Article 78 petition dismissed for failure to exhaust remedy provided in the collective bargaining agreement

Out-of-title work Article 78 petition dismissed for failure to exhaust remedy provided in the collective bargaining agreement
CSEA v Groton Cent. School Dist., 2010 NY Slip Op 50982(U), Decided on June 7, 2010, Supreme Court, Tompkins County, Judge Robert C. Mulvey [Not selected for publication in the Official Reports]

CSEA complained that the library aide job assignments given to negotiating unit members Tracy Cooper and Elizabeth Hill violated the out-of-title prohibition contained in Civil Service Law Section 61.*

Cooper and Hill were appointed to non-competitive teacher aide positions by the Groton Central School District. CSEA filed a petition pursuant to CPLR Article 78 seeking a court order directing Groton to compensate both Cooper and Hill “for all work performed in the higher level 'Library Clerk' job title.”

The school district, seeking summary judgment, submitted a verified answer to CSEA's petition and raised a number of objections and defenses.

The record indicated that Cooper and Hill, who held non-competitive teacher aide positions with the Groton Central School District, were informed that they would be assigned to the library in their respective schools for the 2009-2010 school year and their duties were designed to support the Library Media Specialists there.**

The two major arguments were advanced by the school district in support of its action:

1. Cooper and Hill were teacher's aides and properly placed in their respective school libraries to assist the teachers in charge of those libraries and that their continued classification as a "Teacher Aide" after such placement was in accordance with law and was neither arbitrary nor capricious; and

2. Neither Cooper nor Hill exhausted their available administrative remedies inasmuch as "their respective complaints were not processed through the contract grievance procedure available to them."

Judge Mulvey found this latter argument persuasive, noting that CSEA was the collective bargaining representative for both Cooper and Hill and they are bound by the terms of the collective bargaining agreement CSEA negotiated on their behalf.

The court said that “the terms of the agreement appear to cover out-of-title work … and … the agreement establish a three-stage grievance procedure."

The record indicated that [a] none of the grievance procedures outlined in the agreement were initiated by either Cooper or Hill and [b] CSEA had not satisfactorily demonstrated that it initiated any grievance procedures. Under these facts, the Court concluded that CSEA's petition should be dismissed due the failure of Cooper and Hill to exhaust their available administrative remedies.

Further, said the Judge Mulvey, had the available administrative remedy been exhausted and the Article 78 action thereafter inititated, CSEA's petition would have been dismissed "on the merits."

Considering their alleged “out-of-title” work claims, Judge Mulvey said that Cooper’s and Hill’s continued classification as Teacher Aides was appropriate and should not be overturned, noting that the fact that “there is some overlap of duties performed by Cooper and Hill as teacher aides in the library and those of a ‘Library Clerk’ does not warrant the relief requested.”

According to the ruling, the record indicated that a significant portion of Cooper’s and Hill's duties involve supervision of children in the library as well as providing assistance to the Library Media Specialist. Such duties, the court said, are not included in the job description for a "Library Clerk."

Judge Mulvey ruled that the continued classification of Cooper and Hill as Teacher Aides has a rational basis and was neither arbitrary nor capricious and dismissed CSEA's Article 78 petition.

* Civil Service Law §61.2 sets out a prohibition against out-of-title work, providing that "No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work."

** Both employees started working in the libraries in September 2009 and their positions continued to be classified as non-competitive Teacher Aide “with the approval of the Civil Service Commissioner of Tompkins County.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_50982.htm

Rescinding a tenure appointment

Rescinding a tenure appointment
Shaffer v Schenectady City School Dist., USCA2, LEXIS 20463

If an appointing authority claims that it made a mistake in taking or confirming a personnel action, may it rescind the action or correct the error if the individual voices an objection? This is the underlying issue in the Shaffer case.

Commenting that relevant provisions of "Education Law admits of multiple readings" and that there is no relevant case law concerning the issue, the U.S. Circuit Court of Appeals, Second Circuit, has "certified the question" to the New York State Court of Appeals to determine whether a teacher granted tenure by a school board resolution that states it is to be effective at some future date is immediately entitled to the protections of Section 3020-a of the Education Law available to tenured personnel.

Special education teacher Sharon Shaffer was told by the Superintendent that she would not be recommended for tenure at the end of her probation period. On June 2, 1998 the School Board adopted the following resolution:

"In accordance with the recommendation of the Superintendent of Schools in his written report ... the person whose name is set forth below is hereby appointed on tenure effective on the date set forth below."

A list consisting of thirty-three names, including Shaffer's entitled "Recommendation For Tenure" was appended to the resolution. The "tenure list" indicated the respective tenure areas, and effective tenure dates of the persons listed. Shaffer's tenure date was listed as September 1, 1998.

Claiming that its June 2, 1998, resolution incorrectly included Shaffer's name, on June 17, 1998, the Board voted to rescinded her "tenure appointment." Its theory: on June 17, 1998, Shaffer "was not yet a tenured teacher, but one with merely an expectation of becoming tenured on September 1."

Shaffer sued the District claiming it violated her rights under 42 USC 1983 when it revoked her tenure and dismissed her from her position. The District, on the other hand, contends that Shaffer inclusion on the "tenure list" attached to its June 2, 1998 resolution "was merely the result of a clerical error when [her name] was mistakenly included on a list of teachers to whom tenure was to be granted" and it acted promptly to correct the error.

The critical issue to be determined: did Shaffer acquired tenure as a result of the Board's action on June 2, 1998, and, if so, was the subsequent revocation of that tenure was lawful?

In Gould v Board of Education, 81 NY2d 446, the New York State Court of Appeals held that a "tenured teacher has a protected property interest in [his or] her position and a right to retain it subject to being discharged for cause in accordance with the provisions of [the Education Law]."

Considering the Board's argument that it cannot be bound if its action was the result of an "error" and therefore Shaffer cannot claim any right to tenure, summarized below are two decisions concerning the impact of a mistake made in reporting or recording a personnel action:

1. The Commissioner of Education, in Longshore v Massena Board of Education, 32 CEd 12839, considered the status of a part-time teacher whose "personnel action sheet" described his appointment as "probationary from September 1, 1991 until September 1, 1992." Finding that "[t]he record supports [the District's] contention that the references in the personnel action sheet and notification of appointment form were erroneous," the Commissioner ruled that Willard M. Longshore "was not appointed to a probationary position." Accordingly, the District was not required to meet the notice requirements in Education Law Sections 3031 and 3019-a in order to terminate his employment.

2. In Moore v Smithtown Central School District, 116 AD2d 273, a "layoff seniority" case, the Appellate Division held that the fact that the district had, in error, included a communications skills teacher -- Moore -- on the "reading seniority list" was not controlling thus would not be relevant in determining Moore's preferred list status and reinstatement rights.

Timely reporting of “the accident” critical to claiming line of duty disability benefits

Timely reporting of “the accident” critical to claiming line of duty disability benefits
Matter of Sorano v Hevesi, 38 A.D.3d 1137

Debbie Sorano, a police officer for the City of Yonkers, filed an application for performance of duty disability retirement benefits based on an incident that occurred on January 18, 2001. Her application was rejected by the New York Employees’ Retirement System because she failed to file a notice or report of the incident with her employer within 30 days of the event as mandated by 2 NYCRR 331.2[b].*

Sorano sued, seeking a court order overturning the System’s determination pursuant to the “good cause” exception set out in the Regulation.

The Appellate Division affirmed the System’s decision, ruling that in order for Sorano to “have received the benefit of the good cause exception,” she had to show that she, or someone on her behalf, had filed a written report of the accident within 30 days of the event.

Sorano argued that she had, in fact, satisfied the 30-day requirement because she filed two medical reports with her employer within the relevant 30-day period.

The Appellate Division disagreed, holding that Sorano’s filing did not meet the requirements of the regulation because neither report “made any mention of a January 18, 2001 incident, much less set forth any of the specifics concerning the time, place, nature or cause thereof.”
Accordingly, the court ruled the System’s rejection of Sorano’s application for performance of duty disability retirement benefits for failure to provide the necessary written notice is supported by substantial evidence and will not be disturbed.**

* Retirement and Social Security Law §363-c [e] [b] (3) permits the “late filing” of a claim in the event “a failure to file notice has been excused for good cause shown as provided by rules and regulations promulgated by the comptroller.” The relevant regulation, 4 NYCRR 331.2 [b], provides, in pertinent part, that “good cause” means that the applicant, or someone on his or her behalf, filed a written notice with his employer setting forth the particulars of the time, place, nature and cause of the accident and the nature of the injury within 30 days of the event. The regulation further provides that “The applicant or applicant’s employer being unaware of the requirements of [§363(c)(b)(1)] of the Retirement and Social Security Law or this [regulation], regarding timely filing of notice of accident, shall not constitute good cause for failure to file timely notice.”

** Similar requirements control with respect to employees seeking disability benefits pursuant to §63(c)(b)(1) of the Retirement and Social Security Law.

The decision is posted on the Internet at:

Tuesday, June 08, 2010

Distinguishing between “constructive criticism” and a “reprimand” in the nature of disciplinary action

Distinguishing between “constructive criticism” and a “reprimand” in the nature of disciplinary action
Cohn v Board of Educ. of the City School Dist. of the City of New York, 2010 NY Slip Op 04711, Decided on June 3, 2010, Appellate Division, First Department

Hickey v New York City Dept. of Educ., 2010 NY Slip Op 04712, decided on June 3, 2010, Appellate Division, First Department

Typically courts have viewed placing a memorandum in a personnel file that the writer characterizes as a “reprimand” or uses a phrase such as “you are hereby reprimanded” constitutes disciplinary action within the meaning of statutory disciplinary procedures, entitling a tenured individual to notice and hearing.

In both of the Cohn and Hinkey cases the Appellate Division concluded that under “the current collective bargaining agreement” negotiated by the United Federation of Teachers and the New York City Board of Education, letters placed in a teacher's personnel file that do not result in administrative charges or actual disciplinary sanctions are no longer subject to the previously available grievance procedures.*

Further, said the court, that characterizing a writing as a “letter as a reprimand” in contrast describing it as a counseling memorandum as defined in the collective bargaining agreement, does not convert it into a 'reprimand' in a disciplinary sense,” citing Holt v Board of Educ. of Webutuck Cent. School Dist., 52 NY2d 625.

In Holt the Court of Appeals said that letters in an employee's personnel file commenting on that employee's conduct or performance that the employer found unsatisfactory did not constitute discipline. The Court of Appeals also indicated that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

The Appellate Division concluded that in the absence of any evidence that the educator was subjected to disciplinary charges, and “aside from mischaracterizing a critical letter as itself constituting a disciplinary charge,” neither Cohn nor Hickey alleged that their respective employment status was adversely affected as a consequence of the letter, which, by operation of new Article Twenty-One (A)(5), would be automatically removed from their respective personnel files. Accordingly, the Appellate Division concluded that neither educator could avail herself of the hearing procedures set out in Education Law §3020-a.

Further, while a counseling letter is “active” in a personnel file, the district may subsequently initiate disciplinary action based on the same event and the memorandum itself could be introduced as evidence in the course of the disciplinary proceeding.

On this point, as the Court of Appeal ruled in Patterson v Smith, 53 NY2d 98, should a "counseling memorandum" be placed in an individual's personnel file and disciplinary charges involving the same event(s) subsequently be served upon the individual, such action does not constitute "double jeopardy.”

In contrast, as the Commissioner of Education indicated in Matter of Irving, [Decisions of the Commissioner of Education 14,373], counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

* The Appellate Division noted that there were certain “narrow exceptions not applicable herein.”

The Cohn decision is posted on the Internet at:

The Hickley decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04712.htm

Employees of an entity providing services to a school district pursuant to a contract are not employees of the school district

Employees of an entity providing services to a school district pursuant to a contract are not employees of the school district
Handley v New York State Teachers' Retirement Sys., 2010 NY Slip Op 04667, decided on June 3, 2010, Appellate Division, Third Department [5 proceedings]

Brett A. Handley, Kenneth M. Ford, Theresa Phillips, Neil Tebbano, and Thomas M. White all worked for Project Lead The Way, Inc. [PLTW], a not-for-profit corporation, providing services to public schools pursuant to contracts. All of the individuals employed by PLTW were previously employed by one or more school districts and had joined and were, thereby, members of the New York State Teachers’ Retirement System [TRS].

Following their employment by PLTW each individual continued to be reported to TRS as an employee of the school district, a participating employer in TRS, and thus were accumulating retirement member service credit in TRS.

Following an investigation, TRS said that the individuals employed by PLTW were not entitled to member service credit as a result of such employment because they were not employees of a participating employer or, alternatively, because they were not providing teaching services within the meaning of Education Law §501.

The five sued and a State Supreme Court judge granted their petition, annulling the recalculated service credit or retirement benefits determined by TRS.

The Appellate Division reversed the lower court’s ruling. In the words of the court: “The actual transactions between the contracting parties — and not the labels assigned to their relationships pursuant to a contract or otherwise — determine whether an employer-employee relationship exists.”

Accordingly, the issue to be resolved was whether the five individuals were employees of the several educational institutions that had contracts with PLTW. The Appellate Division concluded that based on the record before it they were not. Rather, said the court, the record indicated that they all were employees of PLTW.

Among the elements supporting the determination that the five were employees of PLTW and thus ineligible for TRS member service credit by reason of such employment and, or, TRS retirement benefits based on their respective service with PLTW:

1. The salaries, benefits and expenses of all of the individuals were ultimately paid by PLTW

2. Their job responsibilities involved developing and promoting the PLTW program nationally and were not specific to their school districts.

3. With one exception, none of the individuals had an office at any of the facilities of the school districts with which PLTW had a contract and either worked from their home or from PLTW's offices.

4. All of the individuals received their job assignments from PLTW and there was nothing in the record to indicate that any of the individuals were supervised by any school district administrator or employee.

Ruling that TRS presented evidence that was ample to support its determination that the five individuals were not employees of the relevant school districts, the Appellate Division concluded that the respective determinations made by TRS with respect to the member service credit and retirement allowances to be paid to the five individuals were neither arbitrary nor capricious.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04667.htm

No Layoff Provision In Public Sector CBA Does Not Violate Public Policy

No Layoff Provision In Public Sector CBA Does Not Violate Public Policy
Source: Adjunct Law Prof Blog;
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Professor Rubinstein writes: I bring Johnson City Professional Firefighters v. Village of Johnson City, ____A.D.3d ___(3d. Dept. April 8, 2010), because it contains an excellent primer on stays of arbitration on the basis of public policy. In a nutshell, the court held that a no-layoff clause in a public sector CBA did not offend public policy. Therefore, the grievance was arbitrable. As the court explained:

Applying the first prong of this test, we find that the CBA's no-layoff clause is not subject to any prohibition against arbitration. A public employer does not violate public policy by voluntarily including a reasonable job security provision in a CBA (see Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 274-276 [1976]; Matter of Burke v Bowen, 40 NY2d 264, 267 [1976])[FN2].

The clause at issue here was not shown to be unreasonable, as the CBA's three-year duration was relatively brief [FN3] (see Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d at 275), and the agreement was not negotiated by parties of unequal bargaining power during a financial emergency (see id.; Matter of Burke v Bowen, 40 NY2d at 267). Further, public policy limitations on arbitrability are rare and "almost invariably" involve a nondelegable constitutional or statutory duty (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, 668 [1990] [internal quotation marks omitted]; accord Matter of City of Schenectady [City Fire Fighters Union, Local 28, I.A.F.F., AFL-CIO], 85 AD2d 116, 118 [1982]). Civil Service Law § 80 sets forth no such nondelegable duty pertinent to the provision at issue.

Among other things, Civil Service Law § 80 establishes the manner in which suspensions and demotions must be implemented upon the abolition of positions (see Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 520 [2007]).

In Chautauqua, the Court of Appeals found that the statute imposed a nondelegable duty upon municipalities to determine which job titles were essential in delivering public services and then to protect employees in such titles according to their seniority (id. at 521).

Thus, a CBA provision that set out a conflicting manner of implementing suspensions "represent[ed] an impermissible intrusion on [the] statutory scheme" (id. at 520), and a grievance arising from such a provision was not arbitrable. In contrast, Civil Service Law §80 neither creates a public employer's power to abolish positions nor requires it to exercise such a power.

Thus, we find no conflict between the no-layoff clause under examination and any "'plain and clear prohibition in statute or controlling decision[al] law, or restrictive public policy'" that would bar arbitration of the grievance (id. at 518-519, quoting Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d at 273 [internal quotation marks omitted]; see Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d at 278).

Under the second prong of the test, the grievance is arbitrable if the parties have agreed to do so (see Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d at 278). "Where a CBA contains a broad arbitration clause, our analysis in resolving whether the parties have so agreed is limited to 'determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA'" (Matter of City of Elmira [Elmira Professional Firefighters' Assn., AFL-CIO, I.A.F.F.-Local 709], 34 AD3d 1075, 1076 [2006], quoting Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d at 279; see Matter of City of Binghamton [Binghamton Firefighters, Local 729, AFL-CIO], 20 AD3d 859, 860 [2005]).

Under the CBA's broad grievance and arbitration provision, disputes "involving the interpretation or application of any provisions of [the CBA]" are subject to arbitration. Resolution of the current dispute depends on the interpretation of the CBA's no-layoff clause to determine whether that provision is applicable to the Village's action in abolishing six firefighters' positions. As this dispute is reasonably related to the CBA, we find that the parties agreed to arbitrate it (see Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 143 [1999]).

Therefore, 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 we do not reach the parties' arguments on that subject.

Mitchell H. Rubinstein

Harvey Randall comments: However, not every provision in a collective bargaining agreement addressing layoff may be controlling or, indeed, its alleged violation arbitrable.

For example, that seniority for the purposes of layoff pursuant to Civil Service Law §§80 and 80-a may not be diminished nor impaired by the terms of collective bargaining agreement is demonstrated by the decision in City of Plattsburgh v Local 788, 108 AD2d 1045.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff pursuant to §§80 and 80-a, i.e., the individual's date of initial permanent appointment in public service.

This was the problem in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first.

Plattsburgh won an order prohibiting arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once ... an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees."

If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/

Incomplete medical certification is not a “negative” certification for the purposes of the FMLA

Incomplete medical certification is not a “negative” certification for the purposes of the FMLA
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.

In Verkade v. US Postal Service, No. 09-1268 (6th Cir. May 27, 2010), the Court rejected the determination of the trial court that the USPS was entitled to rely on prior incomplete medical certifications as negative certifications to deny Verkade's request for FMLA leave. The Court found that an incomplete medical certification is not the same thing as a negative certification.

The difference is important because an employer may rely on a negative certification to deny an employee's request for FMLA leave.

A "negative certification" is one that is complete, but that "facially demonstrates that the absence was not FMLA-qualifying" [Stoops v. One Call Commc'ns, Inc., 141 F.3d 309, 311 (6th Cir. 2006)].

For example, a certification that indicated that the employee would not need to be absent from work is a "negative certification." The certifications in Verkade were not invalid; rather they were incomplete and lacked sufficient information to make a determination whether the condition was FMLA-qualifying. The Court went on to affirm the award of summary judgment in favor of the Postal Service on other grounds.

A second noteworthy aspect of the decision involves the Court's determination that five days afforded Verkade a reasonable opportunity to cure the cited deficiencies in one of the medical certifications he submitted. The Court found five days reasonable in light of the extensive "history of Verkade's interaction" with the Postal Service FMLA Office, including multiple prior notices detailing the deficiencies with the prior, substantively identical certifications he submitted.

Mr. Bosland Comment: The decision teaches: (1) employers may not rely on incomplete certifications as "negative certifications" to deny FMLA leave; and (2) the calculation of a reasonable period to cure medical certification deficiencies may be influenced (e.g., lengthened or shortened) by the employee's prior awareness of what is required to submit a complete, valid medical certification to support FMLA leave.

The decision is based on version of the FMLA regulations that was superseded by revised regulations that went into effect on January 16, 2009. Under the revised regulations, the employer must give an employee at least seven calendar days to cure identified deficiencies. If seven days is not practicable despite the employee's good faith efforts, the employer must provide an unspecified amount of additional time. If the employee fails to cure the deficiencies within the seven days (or longer, if impracticable), the employer may deny the taking of FMLA leave. See 29 CFR 825.305(c).

With respect to the calculation of a reasonable period to cure certification deficiencies, the Verkade decision should remain viable where it is not practicable for an employee to cure deficiencies within seven calendar days.

Monday, June 07, 2010

Applying the rule of three in selecting candidates on an eligible list for appointment

Applying the rule of three in selecting candidates on an eligible list for appointment
Hatala v McCaul, App. Div., First Dept., 253 A.D.2d 666, Motion for leave to appeal denied, 93 N.Y.2d 809

Although Terry J. Hatala scored higher than a number of other applicants in a written test for promotion to Supervising Bank Examiner, he was passed over because he “did not do as well as other eligible job aspirants in the evaluative interview conducted by the Banking Department’s promotion committee.”

The Appellate Division rejected Hatala’s challenged to the process used by the Department to make its promotion determination.

The Court concluded that the Department’s use of an interview to determine which of the three then eligible candidates for promotion should in fact be promoted was consistent with Section 61.1 of the Civil Service Law -- generally referred to as the rule of three.

According to the decision, Section 61.1 “affords a State agency broad discretion to adopt procedures to determine a candidate’s merit and fitness for employment” and an appointing authority may adopt and use such procedures after an eligible list has been promulgated and candidates certified for appointment.”

Hatala also claimed that the interview procedure violated his right to “Equal Protection.”

The Appellate Division rejected his argument, holding that the department’s use of an interview process to make its promotion selection involved a contemporaneous evaluation of all candidates for the promotion and thus they all “were subjected to the same evaluative process.”

Some history concerning the evolution of the “rule of three."

In 1899 New York State civil service appointments from eligible lists were based on the rule of one, also referred to as "the rule of the list."

The Civil Service Law of 1883 had been amended [Chapter 354, Laws of 1883] to provide for “the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission.”

In 1900 the "rule of one" set out in then Civil Service Law Section 14 was struck down by the Court of Appeals as unconstitutional.

In People v Mosher, 163 NY 32, the Court of Appeals ruled that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power.”

Following the Mosher decision, then Section 14 of the Civil Service Law was amended by Chapter 370 of the Laws of 1899 to provided that “appointments shall be made from among those graded highest,” thus restoring the language initially set out in the Civil Service Law of 1883.

Ultimately the so-called "rule of three"* as currently set out in Section 61 of the Civil Service Law, was enacted in concert with the recodification of the Civil Service Law in 1959 [Chapter 790 of the Laws of 1958] and provides for the appointing authority's selecting from among the three candidates who stand highest on the eligible list and who are interested in the appointment.

While the rule of three permits the appointing authority to select from among the three highest scoring candidates for appointment to positions in the competitive class, there may tied scores. In the event there candidates have tied scores, essentially the appointing authority may select from among all those having the same score.

For example, under rule of three, if 2 candidates achieved a score of 96 and 14 got a test score of 95, all 16 candidates would be certified and the appointing authority could select any one of the 16 for the appointment.

In contrast, were there 14 candidates attaining a score of 96 and 2 attained a score of 95, the appointing authority could select from among the 14 “top rated eligibles” rather than the 16 under the conditions described in the first example.

In some instance an appointing authority may follow a "rule of one" by always selecting the top-scoring individual for the position. In some instances this is done on the basis of tradition [see, for example, Matter of Horowitz, 70 AD2d 85], in other instances pursuant to the terms of a collective bargaining agreement.

Indeed, in a “rule of the list” case flowing from an alleged violation of the collective bargaining agreement, Matter of Professional, Clerical, Technical Employees Ass'n (Buffalo Bd. of Education), 90 N.Y.2d 364, the Court of Appeals concluded that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain members of an eligible list where a probationary period is required in order to attain tenure in the position to which they have been permanently appointed.

In contrast to a "rule of the list" mandated by a civil service commission, an appointing authority may itself elect to establish or agree such a rule in the course of collective bargaining and be bound thereby.

The Buffalo decision indicates that selection for appointment following the rule of one can be agreed to in a collective bargaining agreement for positions in the competitive class and for both interdepartmental and intradepartmental promotions in concert with providing for appointments subject to probationary period as Section 63 of the Civil Service Law provides that "every original appointment to a position in the competitive class and every interdepartmental promotion ... shall be for a probationary term" while Section 61 authorizes appointing authorities to require "probationary service upon intradepartmental promotion" by rule.

One statutory "rule of the list" has thus far survived. Section 81 of the Civil Service Law, providing for appointment from a preferred list, subject to certain exceptions, requires that "the names of persons on a preferred list shall be certified therefrom for reinstatement to a vacancy in an appropriate position in the order of their original appointments."

* The rule of three was held lawful by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.

Suing for damages for a "line of duty injury" suffered in the course of performing firefighter and police officer duties

Suing for damages for a "line of duty injury" suffered in the course of performing firefighter and police officer duties
Alcalde v Riley, 2010 NY Slip Op 04528, Decided on May 25, 2010, Appellate Division, Second Department

The so-called Firefighters Rule, which has been extended to police officers,* bars firefighters and police officers from recovering for line of duty injuries that occur as a result of the specific risks inherent in performing the duties of firefighter or police officer.

The Firefighters Rule, however, has been tempered by General Municipal Law §205-a and by General Obligations Law §1-106.

In Alcalde the Appellate Division explores these two provisions of law in considering the lawsuit brought by Jason Alcalde, a New York City firefighter, against a number of defendants, including homeowner Jacqueline Riley, to recover damages for personal injuries he allegedly sustained while responding to a fire at Riley's single-family home in Queens, New York.

The court explained that GML §205-a “provides a right of action for firefighters where the negligence of any person in failing to comply with the requirements of any of the statutes, ordinances, or rules of the federal, state, or local governments directly or indirectly caused the firefighter's injury or death during the discharge of his or her duty,” while GOL §11-106 ”largely abolished the former so-called ‘firefighter's rule’ by giving firefighters a cause of action in negligence for injuries suffered while in the line of duty except as to actions against municipal employers and fellow workers.”**

In the event a firefighter seeks to recover for injuries pursuant to GML §205-a, he or she must "identify a statute or ordinance with which the defendant failed to comply," and must "set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused" his or her injuries.”

The court then indicated that GOL §11-106 provides that "[i]n addition to any other right of action or recovery otherwise available under law, whenever any . . . firefighter suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity, other than that . . . firefighter's employer or co-employee, the . . . firefighter suffering that injury . . . may seek recovery and damages from the person or entity whose neglect, willful omission, or intentional, willful or culpable conduct resulted in that injury."

Here, said the Appellate Division, the fire incident report stated that the fire originated "in combustible roofing material on the roof of the first-floor rear setback and that the cause of the fire was the reckless use of an open flame...."

Although homeowner Jacqueline Riley's made a prima facie showing that she neither created, nor had actual or constructive notice of, any dangerous condition on the subject premises that resulted in Alcalde‘s injuries, the Appellate Division said that Alcalde raised a triable issue of fact through the expert affidavit of Michael F. Cronin, the principal of a consulting firm specializing in the areas of fire protection, fire safety, and fire analysis.

Cronin stated that a blocked interior staircase at the premises constituted a safety hazard that increased the likelihood of harm to the Alcalde.

As Riley's son-in-law had indicated that Riley resided in the house around the time of the fire, the Appellate Division concluded that there is a triable issue of fact as to whether Riley had actual or constructive notice of the blocked staircase that allegedly contributed to Alcalde’s injuries.

Accordingly, said the Appellate Division, Supreme Court’s granting Jacqueline Riley’s motion for summary judgment dismissing the complaint against her was incorrect and reversed the lower court’s order.

* See Santangelo v City of New York, 71 NY2d 393

** These provisions do not affect the eligibility of firefighteres for GML §207-a benefits or the eligiblilty of police officers for GML §207-c benefits.

N.B. An employer may be able to seek reimbursement from a third party "person or entity" for benefits it paid to disabled firefighters pursuant to GML §207-a. or for benefits paid to police officers puruant to GML §207-c.

GML §207-a.7 provides that "Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality or fire district aforesaid for reimbursement in such sum or sums actually paid as a salary or wages and/or for medical or hospital treatment treatment, as against any third party against whom the fireman shall have a cause of action for the injuries sustained.

Similarly, §207-a.6 provides that "Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and or for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04528.htm

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

Correction officer denied accidental disability retirement benefits

Correction officer denied accidental disability retirement benefits
Source: Law Offices of Kevin P. Sherrin, Civil Service Attorney Law Blog, http://civilservice.sheerinlaw.com/ Reproduced with permission. Copyright © 2010

Matter of Richard Benedetto v Thomas DiNapoli, as State Comptroller [2010 NY Slip Op 04322]

This Article 78 appeal was brought about to review a determination of the Comptroller denying petitioner his application for accidental disability retirement benefits. Petitioner was a corrections officer who injured his back in 2004 by falling on stairs in a correctional facility.

Following the accident, petitioner did not return to work. In 2005, petitioner applied for accidental disability retirement benefits and was denied. Petitioner then requested a redetermination but the Hearing Officer upheld the denial at his hearing and the Comptroller adopted this decision. Petitioner then commenced this Article 78 proceeding to challenge the determination.

In his report following the accident, petitioner stated that he slipped while escorting a prisoner down stairs to the facility’s basement. Later on, petitioner said that his accident occurred when he slipped on a sheet of ice on the stairs. Regardless of the fact that these two stories were slightly different, the petitioner bore the burden of proving that the injury was accidental and the Comptroller’s decision must be upheld if supported by evidence.

The Comptroller has the authority and discretion to determine if the incident was a sudden and extraordinary event not related to the ordinary risks of performing routine duties. In this case the Comptroller determined that the injury was the result of a misstep related to ordinary duties.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petition.

Read more about this Article 78 accidental disability retirement benefits case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to http://www.negligenceatty.com/.

Using and misusing employee bulletin boards

Using and misusing employee bulletin boards
Source: Source: AELE Law Enforcement Legal Center, http://www.aele.org/

The AELE Law Enforcement Legal Center has posted an article concerning employee bulletin boards, stating that such boards are “like a firearm in a desk drawer; they have been misused to post defamatory or demeaning content, giving rise to suits for racial or sexual harassment.”

The article also indicates that employee bulletin boards “have been useful in defusing labor-management tensions, in building worker loyalty and in providing worthwhile information.”

Topics covered include:

• Types of bulletin boards
• When employers must allow postings
• When employers can deny postings
• Union bulletin boards
• When are employers liable for disparaging content?
• New technologies
• Policies, Notes and References

The entire article is posted on the Internet at:

Friday, June 04, 2010

The anatomy of a disputed claim for GML §207-c benefits

The anatomy of a disputed claim for GML §207-c benefits
Parker v Village of Johnson City, 2010 NY Slip Op 50957(U), Decided on May 26, 2010, Supreme Court, Broome County, Ferris D. Lebous [Not selected for publication in the Official Reports]

The general guideline followed by court is considering an appeal from an administrative decision is that the court must confirm an administrative decision if there exists a rational basis for the determination, applying the standard set by the Court of Appeals in Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222. As the Court of Appeals explained in Pell, “Arbitrary action is without sound basis in reason and is generally taken without regard to the facts."

Rudy Parker, a Village of Johnson City police officer, appealed the Village’s rejection of his claim for General Municipal Law §207-c benefits notwithstanding the hearing officer’s recommendation to the contrary.

Parker appealed, asking the court to annul the Village’s denial of his General Municipal Law §207-c benefits on the grounds that such denial was arbitrary and capricious, an abuse of discretion and affected by error of law and fact.

In addition, Parker demanded payment of his salary with longevity that he is entitled to for absences commencing January 25, 2009 without charging his accrued leave time; reinstatement of all paid leave time charged for since absences since January 25, 2009; a written statement of taxable income for 2009, excluding from his taxable income salary paid to him during all absences on leave pursuant to GML § 207-c;* and reimbursing the Medicare and social security contributions withheld from salary paid to him during his absences on GML §207-c leave in 2009.

According to Judge Lebous’ findings, Parker had take a supervisor vehicle parked in the Department’s “east parking lot” to “pick up his lunch at a nearby store.”** He returned and ultimately parked the vehicle in Department’s the rear west parking lot where was later to be washed. After parking the vehicle, Parker exited the vehicle and walked around the front end when he slipped and fell on ice. Parker finished his shift on the date of the accident, but thereafter was out of work until he returned to light duty on September 1, 2009.

The then Mayor, Harry Lewis, issued an initial letter determination denying Parker's application for GML §207-c benefits stating, in pertinent part, that "[t]he claimed injury and/or disability did not occur as the result of the performance of your duties." Objecting to the Mayor’s decision, Parker requested a hearing regarding the Village's Initial Determination denying his GML §207-c application.

Hearing Officer Dennis J. Campagna subsequently issued a written "Report and Recommendation" finding the Initial Determination to have been issued in error and recommending the Mayor reverse the Initial Determination and pay Parker retroactive to the date of injury.

Mayor Lewis issued a Final Determination in which he rejected the Hearing Officer's Report and Recommendation, finding Parker ineligible for GML §207-c benefits “for the reasons set forth in the Initial Determination.” Parker filed a timely CPLR Article 78 petition seeking a court order vacating the Mayor’s decision and awarding him appropriate §207-c benefits.

Judge Lebous said that GML §207-c (1) provides that any member of a police force "[w]ho is injured in the performance of his duties...so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality...the full amount of his regular salary or wages from such employer until his disability arising therefrom has ceased...."

Consistent with the Village's "Police Officer Municipal Disability Benefit Procedure", the burden of proof with respect to initial entitlement to GML §207-c benefits was on Parker to show a direct causal relationship between the job duties and the claimed injuries.

Although the City’s Initial Determination found Parker had failed to meet his burden of proof, the Hearing Officer disagreed and found that Parker had, indeed, his burden of proof.

Although there were a number of elements recited in the Village's Final Determination, its primary focus was an analysis and interpretation of case law involving GML §207-c benefits as applied to the facts of this case, as well as a credibility assessment of witnesses** and review of factual evidence in the record.

According to the decision, key to the Village's Final Determination denying the GML §207-c benefits sought by Parker was “his choice of parking lots, … and the fact that petitioner was returning from a paid meal break.”

Judge Lebous ruled that the Village's Final Determination contained error of law and fact. Significantly the court said that GML §207-c is a remedial statute enacted for the benefit of law enforcement personnel injury in the performance of duty and, as such, should be liberally construed. In addition, citing Matter of Theroux v Reilly, 1 NY3d 232, Judge Lebous commented that the that Court of Appeals has stated that injury for the purposes §207-c of does not have to be sustained performing any heightened risk duties.

As to the City’s reliance on Parker’s “choice of parking lots,” which essentially rationalize the ruling on the theory that Parker “should not have parked the supervisor's police vehicle in the rear west parking lot where he ultimately slipped and fell.”

Judge Lebous decided that Village's Parker benefits because of his choice of parking lots was arbitrary and capricious. The court concluded that “Where [Parker] parked the car is of no moment as he was acting within the scope of his duties at the time and had every right, indeed obligation, to be using the supervisor's vehicle at that time as demonstrated by the record.

Concluding that Parker had established a direct causal relationship between his job duties and the resulting injury, Judge Lebous granted his petition in its entirety.

* In Revenue Ruling 72-45, the Internal Revenue Service [IRS] concluded that service connected disability retirement benefits paid to New York City police officers and firefighters were excludable from gross income under the Internal Revenue Code because they were disability payments in lieu of workers' compensation.

** As to “meal break,” it was undisputed that police officers are required to work straight 8 hour shifts during which time they are to remain in service at all times and use police vehicles during breaks.

*** Addressing the issue of the Mayor’s “finding that the hearing testimony of Chief Potts was credible,” in support of his determination, the court said that it found that the Village's Final Determination improperly reached a credibility determination which is within the purview of the hearing officer. A Hearing Officer's factual findings including issues of credibility are entitled to great weight.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_50957.htm


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


Workers’ Compensation held the exclusive remedy available to an employee injured on the way to a work-related meeting

Workers’ Compensation held the exclusive remedy available to an employee injured on the way to a work-related meeting
Sulecki v City of New York, 2010 NY Slip Op 04706, Decided on June 3, 2010, Appellate Division, First Department

Robert Sulecki, an engineer employed by the New York City Department of Design and Construction, was injured after tripping on a sidewalk adjoining a City-owned building while on his way to a work-related meeting. When he sued the City to recover for the injuries he suffered, the City moved to dismiss Sulecki’s complaint, contending that workers’ compensation was Sulecki’s exclusive remedy.

The Appellate Division agreed, holding that the Workers' Compensation Law provides the exclusive remedy “where, as here, the employer and the landowner are essentially the same party and the plaintiff is injured while performing his job.”

The court’s rationale: No exception should be made simply because Sulecki’s injury did not occur at the location of the work-related meeting.

Another “off the premises” workers’ compensation claim was considered in Neacosia v NY Power Authority, 85 NY2d 471. The decision demonstrates that while Workers' Compensation Benefits are available to individuals who are injured in the performance of their duties they may also be available to individuals injured in the course of performing a “special errand” on behalf of his or her employer.

In Neacosia the Court of Appeals decided that an employee who was injured after he stopped on his way home to leave his work uniform at a cleaning shop was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Michael Neacosia was employed as a security officer by the New York State Power Authority.

The Authority provided its security officers with uniforms and required that they keep the “uniforms clean and presentable.” To assist in this, the Authority had made arrangements with a number of cleaning establishments to clean the uniforms and bill the agency for their services.*

Neacosia, after completing his shift, stopped to deliver his uniforms to one of the cleaners on the Authority’s "authorized cleaners" list. After dropping off his uniforms, Neacosia headed home along his usual route. During the trip he was involved in an automobile accident and sustained severe injuries. Neacosia's claimed his injuries arose out of and in the course of his employment and filed for Workers' Compensation Benefits.

The Authority controverted his claim, arguing that he had been involved in an accident while driving his personal automobile on a public highway after leaving work and was not engaged in any work related activity at the time he was injured.

An Administrative Law Judge's decided that under the facts of this claim, which were stipulated, Neacosia's travel had a dual purpose which served to extend the scope of his employment. The Board rejected the Authority's appeal, holding that Neacosia was entitled to him Workers' Compensation benefits. The Court of Appeals affirmed the Board's determination.

Although the general rule is that injuries sustained during travel to and from the place of employment covered by the Workers' Compensation Law, there are exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer. The Court sustained the Board's ruling that Neacosia was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

* In the alternative, security personnel could arrange for the cleaning themselves and submit bills for the cost of the cleaning.

The Sulecki decision is posted on the Internet at:

Employee privacy in texting case to be decided by US Supreme Court

Employee privacy in texting case to be decided by US Supreme Court

Source: Posted on the Internet in CCH Workday [ http://www.employmentlawdaily.com/ ] Reproduced with permission. Copyright© CCH 2010, All rights reserved.*

On December 14, 2009, the U.S. Supreme Court decided to review whether or not a public employee had a reasonable expectation of privacy in text messages sent to and from his work-issued pager that were stored in the server system of a third-party service provider (City of Ontario v Quon, Dkt No 08-1332). The case is currently pending before the Court. In the meantime, it is worth considering the potential implications of Supreme Court action.

A third-party service provider contracted with the city of Ontario, California, to provide wireless text-messaging services using pagers. The city distributed the pagers to its employees, including the police department of which the employee was a member of the Special Weapons and Tactics (SWAT) team. While it had no policy explicitly addressing text-messaging using pagers, the city did have a general “Computer Usage, Internet, and E-mail Policy,” which stated that use of those devices was limited to city business only and that employees were to have no expectation of privacy when using those devices. City employees also signed an acknowledgment to that effect.

As part of an overage audit, the employer read transcripts of the messages sent by the employee from his work-issued pager, and determined that many of the messages were personal (and even sexually explicit) in nature. After learning that their messages were read by their employer, the officer and the officers he texted sued the city for violating their privacy rights.

As it currently stands, the law allows employers to adopt lawful policies relating to computer, Internet, and e-mail use to protect the assets and reputation of a business, ensure employee productivity, and guarantee compliance with corporate policies. Employers may enforce such policies by disciplining an employee who violates the policy.

* From an Interview conducted by CCH, a Wolters Kluwer company, of Joseph Poluka, a partner in the Philadelphia office of Blank Rome LLP, and Michelle Gitlitz Courtney, 1 Logan Square, Philadelphia, PA 19103; telephone: 215-569-5500 (www.blankrome.com).

The full text of the article is posted on the Internet at:

Thursday, June 03, 2010

Concerning name-clearing hearings

Concerning name-clearing hearings
Browne v City of New York, 2010 NY Slip Op 04583, Decided on May 25, 2010, Appellate Division, Second Department [Browne II]

In general, a name-clearing hearing is to provide an employee who claims that he or she has been “stigmatized” by his or her employer with an opportunity to clear his or her name* The individual seeking such a hearing has the burden of proof in the proceeding.

Typically the individual seeks a name-clearing hearing if he or she believes that such alleged stigmatization has or will adversely affect his or her reputation in the community or his or her future employment opportunities.

As the Court of Appeals held in Matter of Stanziale, 55 NY2d 735, where it is alleged that the basis or reason for dismissal is of a "stigmatizing nature" the individual is entitled to some due process so as to clear his or her name.

In 2005 Androniki Browne was serving as the provisional Director of Administrative Services with the New York City Employees’ Retirement System. She was removed from this position without a hearing and placed in a lower grade position with the System, associate staff analyst.

Browne sued in an effort to obtain a court order compelling the appointing authority to give her a name-clearing hearing.

Although Supreme Court dismissed her petition, the Appellate Division modified the lower court’s determination and granted her petition with respect to its demand for a name-clearing hearing [Browne v City of New York, 45 AD3d 590, [Browne I].

The Browne I the Appellate Division explained that as Browne was a provisional employee, she could be demoted to her former position of associate staff analyst without a hearing in the absence of a showing that her demotion was in bad faith, or for a constitutionally impermissible purpose, or otherwise in violation of law.

The court then decided that there was a factual dispute regarding whether there was public dissemination of the statement Browne claimed was stigmatizing. Accordingly, said the court, Browne was entitled to a "name-clearing hearing to afford her the opportunity to prove that the stigmatizing material purportedly in her personnel file is false.”

Browne was then given a name-clearing hearing conducted by an Administrative Law Judge designated by New York City's Office of Adminstrative Trials and Hearings [OATH].

The Administrative Law Judge decided that Browne did not meet her burden of proof.** Diane D'Alessandro, the System’s Executive Director, adopted the OATH Judge's findings and recommendation.

Browne appealed this action by the Executive Director [Browne II] but this time the Appellate Division dismissed her appeal. The Browne II court said that Browne had “failed to negate the stated reasons for her demotion” and found that there was substantial evidence in the record to support the administrative law judge’s determination.

Randall comments: A name clearing hearing, it should be remembered, serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by the employer.

Prevailing at a name-clearing hearing does not entitle the individual to reinstatement or to reemployment in his or her former position. This means that being provided with a hearing and having thereafter cleared his or her name is, at best, all the relief an individual can expect.

In considering an individual’s right to a name-clearing hearing, the courts typically reject such an application if the individual fails to show that the employer had publicly disclosed the allegedly stigmatizing reasons for his or her dismissal or demotion.

Although in most instances name-clearing hearings are demanded in situations where the individual has been dismissed from his or her position, in one case the individual sought a name-clearing hearing following his “coerced retirement.” The Appellate Division ruled that the individual was entitled to such a hearing [Murphy v City of New York, 35 AD3d 319].

Further, on the issue of “public disclosure,” courts have ruled that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" was not required because of such intra-agency communications.

In another probationary termination case, Carlo v City of New York, 549 NYS2d 160, the Appellate Division, Second Department, ruled that a probationary police officer who had been terminated had failed to show that his termination was made in bad faith.

As to Carlo's demand for a name clearing hearing concerning his probationary termination, the court said that he did not show that he was entitled to such a hearing. The Appellate Division indicated that a name clearing hearing will be provided where it is shown that facts related to the termination have been publicly disseminated.

Carlo did not offer any evidence of such public dissemination. The opinion notes that "the mere possibility of dissemination in the future is only speculative and is insufficient to warrant a hearing."

In Bazemore v Koehle, 169 A.D.2d 574, the Appellate Division decided that inasmuch as a probationary employee may be discharged without a hearing of statement of the reasons for the termination so long as the discharge is made in good faith and without any constitutionally or statutorily impermissible motive, no defamatory impression was created and the discharged provisional employee is not entitled to a name clearing hearing.

On the issue of name-clearing hearings, the Commissioner of Education has held that "a public employee is entitled to a due process hearing to clear his or her name only when dissemination of the charges implicated the employee's good name, reputation, honor or integrity thereby foreclosing the employee's freedom to take advantage of other employment opportunities [Decisions of the Commissioner of Education #12785].

In order to be entitled to such a hearing, said the Commissioner, the individual must show that there has been a public disclosure of the stigmatizing charges.

In a similar case, Decisions of the Commissioner of Education 13538, the Commissioner found that the alleged derogatory statements were actually disseminated to the public by the former employee and not the school district, thereby defeating the individual’s possible entitlement to a name-clearing hearing.

In Donato v Plainview-Old Bethpage Central School District, 96 F.3d 623, the United States Court of Appeals, Second Circuit, held that although a non-tenured public employee typically is not entitled to notice and hearing if he or she is discharged during a probationary period, under certain circumstances the individual may be entitled to a "name-clearing hearing."

In this instance the court decided that Donato, who was terminated during her probationary period, was entitled to a name-clearing hearing because the statements made concerning her performance in the job "impugn [her] professional reputation in such a fashion as to effectively put a significant roadblock in [her] continued ability to practice his or her profession."

In Donato's case, said the court, her allegations had satisfied the test as the comments made concerning her performance were "... so harsh as to be likely to persuade any other school board not to hire [her] as a supervisor."

To summarize: New York courts have directed "name-clearing hearings" for probationary employees and for employee without tenure who have been "stigmatized" as a result of “State action” and the employer has made such "stigmatizing" information public.

What have the courts considered to be stigmatizing? "Name-clearing hearings" have been ordered in cases involving dismissals because of alleged mental instability, dishonesty, incompetence, rape and sexual molestation, narcotic addiction, being psychologically unfit, and misconduct involving public funds.

In addition, courts have ruled that a name-clearing hearing is warranted even if there has been no publication concerning the reason for the employee's dismissal in cases where it determines that discharging the employee for the reasons stated does, in fact, stigmatize the individual and may adversely affect the individual's prospects for future employment.

* Name-clearing hearings are usually requested by terminated employees provisionally or temporarily appointed to their position or individuals that have permanently or contingently permanently appointed to their position but terminated after completing their minimum period of probation but prior to the end of their maximum period of probation.

** Browne v Employees' Retirement System, OATH Index No. 1696/08. The OATH Administrative Law Judge found that Browne’s testimony in her own defense was inconsistent and was contradicted by the credible testimony of several of her co-workers, who testified that she was, indeed, involved in an affair with her supervisor although she denied being so involved.

The decision in Browne I is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2007/2007_08456.htm

The decision in Browne II is posted on the Internet at:

Quid pro quo in the nature of the withdrawal of disciplinary charges not required to validate disciplinary settlement agreement

Quid pro quo in the nature of the withdrawal of disciplinary charges not required to validate disciplinary settlement agreement
Matter of Newman v Fire Dept. of the City of New York, 47 A.D.3d 444

Joseph P. Newman settled pending disciplinary charges filed against him by entering into a “settlement agreement” with the New York City Fire Department. The agreement that he signed extended his one-year probationary period as a firefighter to 18 months.

The agreement also stipulated that Newman waived his right to a pre-termination disciplinary hearing in the event he tested positive for “the presence of alcohol in [his] blood or urine which could lead to termination.”

Rejecting Newman’s argument to the contrary, the Appellate Division said that it was not required that the settlement agreement constitute a quid pro quo for the dismissal of pending disciplinary charges, so long as Newman’s waiver of rights to a pre-termination hearing was knowingly and freely made.

Contrasting the “ineffective agreement” considered in Vega v Civil Service Commission, 385 F Supp 1376, an agreement that the Appellate Division characterized as “merely spelled out statutory rights not authorizing the appointee’s termination,” the court ruled that Newman had signed a settlement agreement that gave the Department new rights with respect to its ability to terminate him and thus it was enforceable.

Similarly, in Wilson v Jackson, 161 A.D.2d 652, a Section 75 disciplinary action was discontinued when Wilson agreed to a stipulation of settlement which, in part, provided that she waived her rights to any hearing concerning allegations that she violated any of the provisions of the stipulation.

Wilson was subsequently terminated "for having violated a provision of the stipulation,” and she appealed.

The Appellate Division upheld her dismissal despite the fact that she was not given a pre-termination Section 75 hearing.

The court said that Wilson was not entitled to a hearing as she had waived all such rights when she agreed to the terms of the settlement. The opinion again notes that "[p]rovided the waiver is freely, knowingly, and openly arrived at, without taint of coercion or duress, a party may, by stipulation, waive her right to the procedural due process to which she is otherwise entitled under New York State Civil Service Law."

Accordingly, the settlement must stipulate that the disciplinary charges are "withdrawn" there is no implied withdrawal of such charges upon execution of the agreement.

Citing Barry v City of New York, 21 AD3s 551, the court ruled that Newman was still a probationary employee at the time of his failed a test for “alcohol in his blood or urine,” and therefore he could be terminated by the Fire Department without a pre-termination hearing because he tested positive for such substance.

The decision is posted on the Internet at:


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