Dasey v Anderson, CA1, 304 F.3d 148
Thursday, October 06, 2011
Dasey v Anderson, CA1, 304 F.3d 148
Wednesday, July 27, 2011
Friday, July 22, 2011
Thursday, July 14, 2011
Wednesday, June 15, 2011
Munger v Board of Educ. of the Garrison Union Free School Dist., 2011 NY Slip Op 05034, Appellate Division, Second Department
Munger appealed and the Appellate Division reinstated that branch of her petition seeking reimbursement for Medicare Part B premium payments
Ruling that the issue of the school district's obligation to reimburse Munger and her co-plaintiffs for their Medicare part B premiums was not decided in the prior arbitration proceeding, the Appellate Division held that the arbitrator's award did not have preclusive effect on Munger's Article 78 action.
The court then explained that in considering a motion to dismiss a pleading for failure to state a cause of action, “the court must accept the allegations of the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.”
Noting that Munger had submitted documents relating to the school district’s obligation, “as members of the statewide health care consortium,” to reimburse their retired employees for Medicare Part B premiums paid by the retirees pursuant to Civil Service Law §167-a, the Appellate Division observed that Civil Service Law §167-a requires that employers participating in the New York State Health Program for State and Local Governments to reimburse retirees who are 65 years of age or older for Medicare premium charges.
According, said the court, Munger and her co-plaintiffs every possible favorable inference from their allegations and supporting documents, the Garrison Union Free School District’s motion to dismiss Munger's first cause of action alleging breach of the collective bargaining agreements and seeking declaratory relief should have been denied.
Randall Comments: The Munger case appears to be another example of a public employer participating in the New York State Health Insurance Program attempting to circumvent the mandates of Civil Service Law §167-a* A brief review of the genesis of §167-a may be illuminating.
Many years ago Thomas McCracken, the then director of the Department of Civil Service’s health insurance unit, concluded that the State could realize substantial financial benefits in terms of a reduction in the employer’s contributions to the New York State Health Insurance Program for State and Local Government [NYSHIP] if individuals and the dependents of such individuals that were Medicare eligible retirees had Medicare as their primary insurer.**
Mr. McCracken was instrumental in the drafting and adoption of Civil Service Law §167-a to this end. He also successfully advocated modifying NYSHIP's health insurance contracts to “exclude” from NYSHIP coverage those benefits otherwise available to Medicare eligible retirees and their dependents under Medicare. The reason for this: Medicare premiums were less than the premium costs that would have been otherwise required were the State to continue to provide these benefits to retirees and their dependents were NYSHIP the primary insurer.
In developing the plan, Mr. McCracken realized that, in effect, “excluding” such coverage for retirees in the NYSHIP contracts for health insurance mandated that the Medicare eligible retirees designate Medicare as their primary insurer or lose a significant portion of their health insurance coverage as the NYSHIP contracts would only provide Medicare-eligible retirees and their dependents with health insurance benefits otherwise available to active employee that were not covered by Medicare.
To maintain their same level of health insurance benefits, the Medicare eligible retiree would be required to pay the Medicare premium otherwise required for Medicare as well as the full “employee contribution” required for NYSHIP. Hence the amendment of the Civil Service Law to provide for the reimbursement of Medicare premiums to the Medicare eligible retirees set out in §167-a.
As an illustration, if the employee contribution for individual coverage in NYSHIP was $xxx per year, the Medicare eligible retiree would be required to pay $xxx for his or her NYSHIP participation and, in addition, pay $yyy per year for Medicare premiums for a total of $zzz.Thus the Medicare eligible retiree would be eligible for the same level of health insurance benefits otherwise available to the non-Medicare eligible individual under NYSHIP but would be required to pay more in premiums for the identical coverage.
To eliminate this adverse financial impact on Medicare eligible retirees, §167-a was enacted in order to provide for the reimbursement of Medicare premiums to Medicare eligible retirees by the retiree’s employer, thus, once again, limiting their cost for health insurance to the $xxx per year that was required of active employees and non-Medicare eligibles in NYSHIP while NYSHIP continued to reap substantial financial savings to the benefit of the State and NYSHIP’s participating employers.
Simply stated, but for the Medicare eligible retirees participating in Medicare as their primary health insurance carrier, the health insurance costs to the State, participating employers and NYSHIP enrollees, active and retired, for health insurance benefits through NYSHIP would be higher.
* Civil Service Law §167-a, in pertinent part, provides: Reimbursement for medicare premium charges. Upon exclusion from the coverage of the health benefit plan of supplementary medical insurance benefits for which an active or retired employee or a dependent covered by the health benefit plan is or would be eligible under the federal old-age, survivors and disability insurance program, an amount equal to the premium charge for such supplementary medical insurance benefits for such active or retired employee and his or her dependents, if any, shall be paid monthly or at other intervals to such active or retired employee from the health insurance fund.
** Eligible individuals are not required by federal law to participate in Medicare upon attaining age 65 but if the individual elects not to do so, he or she may be required to pay higher Medicare premiums should he or she later decide to enroll in Medicare.
Wednesday, May 11, 2011
Friday, April 15, 2011
Friday, March 25, 2011
Pirozzi v Safir, App. Div., First Department, 270 AD2d 2, motion for leave to appeal denied, 95 NY2d 756
New York City police officer John Pirozzi was terminated from his position without a hearing after he was convicted of a crime he committed in the line of duty and that the appointing authority deemed constituted a violation of Pirozzi’s oath of office.
Claiming that he was entitled to administrative due process before he could be removed from his position, Pirozzi sued. The department, citing Section 30(1)(e) of the Public Officers Law, argued that Pirozzi was removed by operation of law upon his conviction and thus he was not entitled to a pre-termination hearing.*
The Appellate Division agreed and dismissed Pirozzi’s petition. The court said that Pirozzi was properly terminated from the Police Department without a hearing in light of his conviction of aggravated harassment in the second degree. The court cited Duffy v Ward, 81 NY2d 127, as authority for its ruling.
However, in the event a public officer is terminated pursuant to Section 30(1)(e) as a result of his or her conviction of a felony, or a crime involving the violation of his or her oath of office, and the conviction is later reversed or vacated, the individual may request reinstatement to his or her former position, except in cases where the former position was “an elective office.” In the event the appointing authority denies the individual’s request for reinstatement his or her former position, he or she is entitled to a hearing with respect to that decision if the initial conviction was the only basis for the termination.
* Section 30(1)(e) of the Public Officers Law applies only in cases where the individual is a public officer. A police officer is a public officer. Although every public officer is a public employee, not every public employee is a public officer.
The Discipline Book - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
Monday, February 28, 2011
Videotape made by witnesses that observed the alleged misconduct of the employee admissible as evidence in his or her disciplinary hearing
Matter of Heisler v Scappaticci, 2011 NY Slip Op 01472, Appellate Division, Second Department
Steven Heisler filed CPLR Article 78 petition challenging the decision of the Town Board of the Town of Harrison, acting in its capacity as the Town’s Board of Police Commissioners, terminating his employment with the Town of Harrison Police.
Abandoning his claim that there was no substantial evidence to support the Board’ determination, Heisler focused on alleged procedural errors in the disciplinary hearing that was held prior to his dismissal.
Heisler contended that the use of “hearing videotaped statements” made by individuals who witnessed the subject incident even though they did not testify at the hearing was improper.
The Appellate Division disagreed, holding that the Board properly admitted the videotapes into evidence as "[h]earsay is admissible in an administrative hearing and, if sufficiently relevant and probative, hearsay alone may constitute substantial evidence"
Citing A.J. & Taylor Rest. v New York State Liq. Auth., 214 AD2d 727, the court said that “… under appropriate circumstances, statements from witnesses absent from the hearing may form the sole basis for an agency's ultimate determination."
Also rejected was Heisler’s argument that the charges set out in the notice of discipline sent to him did not provide him with sufficient notice of the conduct with which he was charged. The Appellate Division said that “the disciplinary charges were ‘reasonably specific, in light of all the relevant circumstances, so as to apprise the party who is the subject of the hearing and to allow such party to prepare an adequate defense,’" citing Matter of Mangini v Christopher, 290 AD2d 740.
The court also sustained the penalty imposed, dismissal, holding that it was not so disproportionate to the offense as to be shocking to one's sense of fairness, the so-called test, Pell v Board of Education, 34 NY2d 222.
The decision is posted on the Internet at:
Friday, February 25, 2011
Matter of Ronga v Klein, 2011 NY Slip Op 01408, Appellate Division, First Department
A probationary administrator or teacher may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny the individual tenure prior to the expiration of the administrator’s or teacher’s probationary term, McManus v Hempstead Union Free School District, 87 NY2d 183.
Richard Ronga, appointed as a probationary principal by the New York City Department of Education [DOE], challenged DOE's terminating his employment on the theory that he was denied due process as he was not give the required pre-termination notice and hearing.
Ronga contended that he had attained tenure as a principal by “estoppel” and thus he was entitled to such due process as a matter of law.
Supreme Court dismissed Ronga’s petition, which ruling was unanimously affirmed by the Appellate Division.
In contrast to Ronga’s claim that he acquired tenure by estoppel, the Appellate Division said that the record established that he did not perform the duties of a principal with DOE's knowledge or consent beyond the expiration of his probationary term.
Further, the court noted, prior to the expiration of Ronga’s probationary period DOE notified him that he would not be granted tenure. According to the decision, Ronga and DOE then negotiated and signed a resignation agreement, which Ronga attempted to revoke later that same day.
The Appellate Division concluded that Ronga failed to demonstrate that he acquired tenure by estoppel and, further, failed to sustain his burden of showing that DOE acted in bad faith when it terminated his employment as a probationary principal, “as he provides no support for his claims.”
N.B. Continuation on the payroll for a brief period after the expiration of a probationary period does not automatically result in the individual attaining tenure by estoppel [Mendez v Valenti, 101 AD2d 612]. The court ruled that as long as the termination of a probationer [in the classified service] is effected within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.
The decision is posted on the Internet at:
Monday, January 24, 2011
Matter of Coleman v State of New York, Appellate Division, Third Department, 38 AD3d 1044
Coleman was involved in an off-duty automobile accident and was placed on disability leave pursuant to §72 of the Civil Service Law. After she had been continuously absent for more than one year, the Department terminated her in accordance with the provisions of §73 of the Civil Service Law.*
§73 provides that an individual terminated after being absent on leave pursuant to §72 may apply for reinstatement to his or her former position within one year after the termination the disability underlying being placed on §72 leave by applying to the civil service department or municipal commission having jurisdiction over the position “for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.”
When Coleman initially applied for reinstatement she was evaluated to determine is she was fit to perform the essential duties of a correction officer.
Ultimately, the New York State Department of Correctional Services disqualified Delores Coleman for employment as a correction officer based on the Department’s medical expert opinion that Coleman was not psychologically qualified for the position. Coleman appealed.
Although Coleman was initially approved for reinstatement, information subsequently provided by the Department resulted in a second evaluation that concluded that she was "poorly suited" for the position. According to the decision, Coleman’s responses to specific questions during a subsequent psychological interview raised significant concerns about her judgment and integrity and as a result, she was denied reinstatement to her former position of correction officer..
Coleman contended that: Corrections incorrectly utilized the standards required of a new correction officer outlined in Correction Law §8 in rejecting her request to be reinstated to her former position with the Department.
The Appellate Division rejected Coleman’s argument, noting that although prior to 2004, a correction officer seeking reinstatement was examined solely to determine whether the disability still existed, by January 2004, [the Department] changed the medical evaluation processing of correction officer reinstatements to mirror the processing of correction officer trainee candidates.**
Accordingly, said the court, Corrections had the statutory authority under Civil Service Law §73 to determine if Coleman was mentally fit to return to her position as a correction officer and its use of the psychological standards detailed in Correction Law §8 for that purpose was entirely proper, It then dismissed her appeal.
* Section 73 of the Civil Service Law provides for the removal of a tenured employee in the classified service if he or she has been continuously absent from work for one year or more because of a non-work related injury or illness. Termination pursuant to Section 73 is at the discretion of the appointing authority. [Termination following a cumulative period absence of one year or more due to a work-connected injury or illness is controlled by §71 of the Civil Service Law. Again, termination of an individual placed on a §71 leave of absence is at the discretion of the appointing authority.]
** Correction Law Section 8 (2) provides that all applicants for the position of correction officer must undergo a psychological evaluation to determine if they are "suffering from psychotic disorders, serious character disorders, or other disorders which could hinder performance on the job [and] may be deemed ineligible for appointment."
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