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Friday, October 29, 2010

Jarema credit and eligibilty for tenure

Jarema credit and eligibilty for tenure
Barbaccia v Locust Valley CSD, 282 AD2d 674

The central issue in the Barbaccia case concerned a teacher’s eligibility for Jarema credit for the purposes of granting tenure. As the decision demonstrates, determining whether an individual qualifies for Jarema credit is not always an easy task.

The case arose when Tori Barbaccia was denied tenure prior to the end of his two-year probationary period. He claimed that he had acquired tenure be estoppel a year earlier as he was entitled to Jarema credit for one and one half years of prior service as a “permanent per diem” substitute teacher with his employer, the Locust Valley Central School District.

Barbaccia had served as a per diem substitute during the 1992-93 and 1993-94 school years. He was then appointed as a part-time four-fifths social studies teacher for the 1993-94 school year. In September 1, 1995, Barbaccia was given a two-year probationary appointment and by letter dated April 11, 1997, was advised that he would not be recommended for tenure. He was terminated effective August 1, 1997.

Claiming that he had acquired tenure by estoppel or acquiescence in February 1997, Barbaccia sued to compel the board to reinstate him to his former position with tenure and back salary on the authority of Section 3012(1)(a) of the Education Law. Section 3012(1)(a), sets a three-year probationary period for teachers, but allows a reduction of the probationary period for up to one year by extending a credit (referred to as “Jarema credit”) for up to two years of “satisfactory service as a regular substitute.”*

The school board argued that Barbaccia did not qualify as a “regular substitute” since he “did not take over the class of another teacher on a permanent basis for any definite time but rather substituted for other teachers on a daily basis or for other short periods of time.” Barbaccia, the district claimed, fell within the category of “itinerant substitute.”

Barbaccia substituted for many teachers and in different subject areas, including his certified area of social studies, but never replaced any teacher for any extended period of time and never for a full semester or term. The Appellate Division, however, said what is controlling is the character of the teacher’s actual service.

The ruling notes that the Commissioner of Education has classified substitute teachers: those performing regular substitute service and those performing itinerant substitute service.

A “regular substitute” is one who takes over the class of another teacher upon a permanent basis, i.e., under circumstances where the regular teacher for maternity reasons, or for sabbatical or sick leave, has been given a definite leave of absence” while the “itinerant substitute” is a person who is called in for half a day, for short periods or for a week or more, to take the place of a teacher who is temporarily absent because of sickness or otherwise.”

An itinerant substitute is paid upon a day rate, is not entitled to membership in the teachers’ retirement system, and receives no recognition by statute for that type of service” (65 NY St Dept Rep 65, at page 67).

In Matter of Spechler, 90 NY2d 110, the Court of Appeals held that whether one falls within the category of “regular substitute” or “itinerant substitute” must be based on the substitute teacher’s actual service. It said that the substitute teacher’s title, rate of pay (per diem or annual salary), and whether the teacher for whom the substitution is made was absent for a definite or indefinite period may be factors to be considered but each alone is not dispositive and “the distinction between definite and indefinite absences should not be rigidly applied.”

The Appellate Division decided that Barbaccia was not entitled to any Jarema credit for the fall 1992 semester because he did not provide services for the entire semester nor for the time he worked as a part time teacher. But since the part time employment was immediately prior to the probationary appointment, the court ruled that he may be entitled to Jarema credit for the time he served as a “permanent substitute” that may otherwise qualify.

To resolve the issue, the court remanded the question of whether Barbaccia qualified for Jarema credit to Judicial Hearing Officer Marie G. Santagata.

* "Jarema credit" is named after the bill's sponsor, Assemblyman Stephen J. Jarema.

Thursday, October 28, 2010

Mandatory retirement

Mandatory retirement
Mainello v McCall, 252 AD2d 235, motion to appeal dismissed, 93 NY2d 919

In 1988 the state amended the Retirement and Social Security Law to change the mandatory age of retirement for certain members of the Police and Firefighters’ Retirement System [PFRS] from age 60 to age 57 [Chapter 795 of the Laws of 1988].

State Police Assistant Deputy Superintendent John A. Mainello challenged the requirement that he retire from his position upon his attainment of age 57 [RSSL Section 381-b(e)].

He filed a lawsuit contending that the legislature’s action violated the state Constitution. He said it contradicted the so-called “Nonimpairment Clause” (Article V, Section 7), which provides that a retiree’s retirement benefits from a public retirement system of this state are contractual and may neither be diminished nor impaired.

Mainello argued that his retirement benefits would be compromised because he would “lose three years of member service.” The Appellate Division disagreed, holding that Mainello’s early retirement would have a “minor and entirely incidental” influence on his retirement benefits.

Furthermore, the Appellate Division pointed out that the law only protects the benefits of current retirees, not the potential benefits of employees who are approaching retirement. [“(T)he fact that there can be no Constitutional impairment of pension system benefits does not create a constitutional right to stay in public employment” (see Cook v City of Binghamton, 48 NY2D 323); “(An) expectation of remaining in public employment ... is not within the scope of protection afforded by the Nonimpairment Clause.” (see Lake v Regan, 135 AD2d 312)]

In addition, the amendment requiring PFRS members to retire at age 57 “was enacted to further a legitimate public policy goal,” the Appellate Division said.

Courts will probably apply a similar reasoning to other challenges to mandated early retirement on constitutional grounds.

Judge Cardona dissented, commenting that “it is settled law that “[t]he Nonimpairment Clause of the New York Constitution was adopted in order to prevent the reduction of an individual’s retirement benefits after he or she had joined a retirement system operated by the State or one of its civil divisions.” Judge Cardona also cited Lake v Regan [supra] in support of his position.

In effect Judge Cardona took the position that a member of a public retirement system is entitled to at least the level of benefits provided by law when he or she joined the system when he or she retires. Because the system provides a “defined benefit,” Judge Cardona concluded that a member suffers an impairment of his or her constitutionally protected retirement benefit if the calculation of his or her “defined benefit” would be adversely affected by any amendment to the Retirement and Social Security Law prior to his or her effective date of retirement.

Religious freedom and employment

Religious freedom and employment
Marchi v BOCES, 2nd Cir., 173 F.3d 469

A school risks violating the Establishment Clause of the U.S. Constitution if any of its teachers’ activities give the impression that the school endorses a religion.

But how far can a school board go in limiting a teacher’s classroom speech on religious issues before it tramples on another Constitutional guarantee: the right to free expression? The U.S. Court of Appeals for the Second Circuit, which includes New York State, wrestled with those issues in the Marchi case.

Dan Marchi, a certified special education teacher in the Capital Region BOCES, taught socially and emotionally disturbed high school students. Marchi said he “underwent a dramatic conversion to Christianity,” and admitted that he shared this experience with his students.

In the fall of 1991 he modified his instructional program to discuss topics such as forgiveness, reconciliation, and God. He used a tape, Singing the Bible, in class and voiced his thankfulness to God in at least one letter to a parent.

After Marchi ignored letters directing him to refrain from using religion as part of his instructional program, the BOCES filed charges of insubordination and “conduct unbecoming a teacher” against him. A state Department of Education hearing officer found that Marchi had committed an act of insubordination and imposed a penalty of six months’ suspension without pay.

However, Marchi’s return to teaching was conditioned on his commitment, in writing, to adhere to a directive that he would not discuss religion in class. Upon advice of his attorney, Marchi said that he would adhere to the directive.

Marchi then filed a civil rights complaint pursuant to 42 USC 1983, alleging that:

1. By suspending him in 1995, BOCES violated his rights to academic freedom, free association, free speech, and free exercise of religion, as well as his rights under the Religious Freedom Restoration Act;

2. BOCES violated his right to due process and retaliated against him when deciding his classroom assignment upon his return to teaching;

3. The directive he accepted was unconstitutionally vague and overbroad; and

4. The directive “proscribe(d) protected speech between Marchi and students’ parents.”

A federal district judge dismissed his complaint, saying “thousands of teachers of common intelligence are able to distinguish between their instructional program and their personal life and do so without violating the establishment clause.” In addition, the District Court found that the challenged directive “addresses only [Marchi’s] instructional program and no other aspect of [his] personal life”.

Marchi appealed the ruling. The Circuit Court agreed with the lower court, holding that while “the directive is unquestionably a restraint on Marchi’s First Amendment rights,” not all restraints on free exercise and free speech rights are invalid. The court said that the validity of a particular restraint depends on the context in which the expression occurs.

The Circuit Court noted that the decisions that governmental agencies make in determining when they are at risk of Establishment Clause violations are difficult.

In dealing with their employees, public employers cannot be expected to resolve so precisely the inevitable tensions between the Establishment Clause and the Free Exercise Clause “that they may forbid only employee conduct that, if occurring, would violate the Establishment Clause and must tolerate all employee conduct that, if prohibited as to non-employees, would violate the Free Exercise Clause.”

In discharging its public functions, said the Court, the governmental employer must be given some latitude and the employee must accept that he or she does not retain the full extent of free exercise rights that he or she would enjoy as a private citizen.

Wednesday, October 20, 2010

Rescinding a letter of resignation

Rescinding a letter of resignationGrogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756

Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.

Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.

The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”

In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.

Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.

The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.

The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”

It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.

For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.

In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:

Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.

Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”

The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."

New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."

When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.

The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."

The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.

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

Thursday, October 07, 2010

Civil Service Law Section 72 leave

Civil Service Law Section 72 leave
Lara v City of New York, 1999 WL 459803.

It is not unusual for an employee placed on disability leave pursuant to Section 72 of the Civil Service Law to allege that his or her employer’s action in placing the individual on such leave constituted unlawful discrimination because of a disability. In the Lara case, national origin discrimination was claimed to have motivated placing the employee on “an involuntary medical leave” that eventually resulted in Lara’s being placed on Section 72 leave.

Pablo Lara, who was born in the Dominican Republic, was employed as a Program Officer by the New York City Department for the Aging (DFTA). His duties included monitoring contracts between DFTA and community-based organizations.

The New York Foundation for Senior Citizens, for instance, wrote a letter complaining that Lara “continuously” compared the Foundation administration to “‘militant dictatorships in many African countries.’” Throughout a meeting, it was alleged, Lara’s voice was raised and “he seemed agitated.” He repeatedly mimicked Foundation staff at the meeting.

The department decided to place Lara on an involuntary medical leave of absence effective March 21, 1997. Lara was also instructed to report to Dr. Azariah Eshkenazi for a psychiatric examination. According to the decision, Dr. Eshkenazi diagnosed Lara as having a “personality disorder, paranoid type” and “generalized anxiety.”

Lara was also examined by a psychiatrist of his own choosing, Dr. Pedro Rodriguez. Dr. Rodriguez said he found no evidence of “serious psychiatric conditions, including psychosis and personality disorder that could have prevented [Lara] from doing his work.”

Administrative Law Judge [ALJ] Ray Fleischhacker was designated to hold a Section 72 hearing. The ALJ decided to adjourn the hearing so that Lara could be examined by a third psychiatrist, Dr. Myron Gordon. Dr. Gordon diagnosed Lara as having “paranoid personality disorder.”

On December 3, 1997, the ALJ issued a “Report and Recommendation” in which he concluded that Lara was “mentally unfit to perform the duties of his position.” He recommended that Lara be placed on Section 72 leave.

The Department placed Lara on Section 72 leave effective December 15, 1997. While on such leave, Lara was re-evaluated by Dr. Eshkenazi, who determined that “Lara’s mental condition had not improved and that Lara remained unfit to return to work.” The department terminated Lara’s employment effective December 15, 1998. Section 73 of the Civil Service Law authorizes the termination of an individual who has been continuously absent on Section 72 leave for at least one year.

Meanwhile, Lara filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on April 16, 1997, contending that the department’s decision to place him on involuntary medical leave constituted national origin discrimination. EEOC issued Lara a “right to sue letter” and Lara initiated litigation in federal district court.

A federal district court judge dismissed Lara’s petition, agreeing with the department that Lara had failed to perform his duties satisfactorily and, consequently, he failed to satisfy one of the critical elements required to establish a prima facie case of unlawful discrimination -- the individual’s ability to satisfactory perform the duties of the position.

Judge Cote said that the city had submitted “uncontroverted evidence” of Lara’s inappropriate behavior at staff meetings and that there was unrebutted evidence that “DFTA contractors complained repeatedly about Lara’s unprofessional behavior and requested that Lara be replaced by another program officer.” Accordingly, said the court, “Lara fails to raise an issue of fact that he was performing his job satisfactorily and [thus] fails to establish a prima facie case.”

The decision also notes an important procedural element. Lara had named the City, Shaffer, and DFTA as defendants. Judge Cote said that “[t]here is no individual liability under Title VII and the Title VII claims against Shaffer must be dismissed.” In addition, the court ruled that the Title VII claims against DFTA also had to be dismissed because under Chapter 17, Section 396 of the New York City Charter all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where otherwise provided by law.

Monday, October 04, 2010

Designating employee as managerial or confidential

Designating employee as managerial or confidential
Lippman v PERB, App. Div., Third Dept., 263 AD2d 891

The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In the Lippman case the Appellate Division, Third Department, set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.

PERB denied a request by the Office of Court Administration to designate nine high-level, nonjudicial Unified Court System [UCS] employees as managerial or confidential pursuant to Civil Service Law Section 201(7).

Employees designated “managerial or confidential” are excluded from the definition of public employees and are generally not covered “by the myriad of rights and protections afforded to public employees under the Taylor Law.”

The nine individuals served in position with the Court of Appeals, the Law Reporting Bureau and the First and Second Appellate Divisions and were then in a negotiating unit represented by the Civil Service Employees Association, Local 1000.

The Appellate Division affirmed PERB’s determination denying the nine managerial or confidential status on the authority of Court of Appeals decision in Rosen v Public Employment Relations Board, 72 NY2d 42.

Although UCS contended that the incumbents should designated managerial “based upon their role in the policy-making process of the courts where they work,” PERB had found that the nine did not “formulate policy” nor did they have a major role in personnel administration as contemplated by Civil Service Law Section 201(7)(a).

PERB’s “long-standing definitions of policy formulation” includes both “a person who has the authority or responsibility to select among options and to put a proposed policy into effect,” and a person “who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect.”

UCS contended that “employees need not be the ultimate decision makers to be designated as managerial policy formulators, and that it is sufficient if they assist the ultimate decision makers.” PERB, said the court, has recognized that the “definition of a policymaker is, and must be, sufficiently broad to include those relatively few individuals who directly assist the ultimate decision makers in reaching the decisions necessary to the conduct of the business of government.”

However, every employee who advise the ultimate decision makers is not automatically a policy formulator to be designated as managerial and excluded from the Taylor Law’s protections. Rather, the employer must demonstrate that the particular employee participates in the essential processes by which the employer makes its decisions regarding the department’s mission and the means by which those policy objectives can best be achieved.

The court said that it would defer to the expert charged with administering the Taylor Law -- PERB -- in view of its expertise with respect to the fundamental policies underlying that law.*

As to the standard the Appellate Division used: “‘[s]o long as [PERB’s] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections ... ‘“, the court said it would accept PERB’s construction if reasonable and not arbitrary or irrational, [Village of Lynbrook v PERB, 48 NY2d 398].

The Court said that “[t]he determination of who “directly assists” the ultimate decision makers necessarily involves drawing distinctions and lines among employees based, inter alia [among other things], upon the nature, timing and level of their involvement in the decision-making processes, and upon the practices and hierarchy of the employer.”

Based on the record before it, the Appellate Division concluded, PERB acted rationally in making such distinctions and determinations regarding these employees.

What about “supervisory employees working with or for managerial employees.” The decision notes that such personnel “are not automatically or presumably confidential employees within the meaning of Civil Service Law Section 201(7)(a)(ii).” “Indeed,” said the court, “knowledge of personnel or disciplinary matters is often inherent in supervisory positions and does not warrant a confidential designation where it is limited and does not encompass labor relations information significant to the basic mission of the employer.”

* In contrast, the Appellate Division pointed out that “where ... the question is one of pure statutory construction,” dependent only on accurate understanding of the legislative intent, judicial review is less restricted as “statutory construction is the function of the courts.”


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