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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.
N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.
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:
Source: Lamb & Barnosky, LLP, http://www.lambbarnosky.com/about/ Reproduced with permission. Copyright © 2011
The law firm of Lamb & Barnosky has offered the following hints and observations concerning designating employees as managerial or confidential within the meaning of the Taylor Law [Civil Service Law Article 14]:
"With the New Year upon us, it is a good time to review the composition of your bargaining units to ascertain whether there are any employees who should not be in a union due to their "managerial" and/or "confidential" status.
"As a general proposition, a "managerial" employee sets, or effectively recommends, employer-wide policy; e.g., a Superintendent or an Assistant Superintendent of Schools, a Director of Labor Relations or Operations, and some department heads. In deciding whether to remove the employee from the bargaining unit, the Public Employment Relations Board ("PERB") will look to both the person's actual duties as of the date on which the application is filed, as well as those that are reasonably expected to be performed in the near future.
"Clerical and other personnel who regularly work in a confidential capacity with managerial employees, on confidential matters involving labor relations, will be designated by PERB as "confidential." In the case of a confidential employee, PERB looks to the actual duties that are being performed at the time of the application to see whether they meet the test.
"The procedure for removing an employee from a bargaining unit due to the employee's managerial and/or confidential status is for us to file an application with PERB that provides the affected employee's name and title, whether a contract covers the persons within the job titles which the employer claims are managerial and/or confidential, summarizes his or her relevant duties and a factual statement in support of the application. A copy is sent to the union, which has the right to dispute the application all the way through a formal hearing at PERB. If the employer prevails, the employee may leave the unit during the 7th month before the contract expires or 120 days following the contract's expiration. Removal from the unit has no impact on an employee's underlying civil service status.
"An employer can file only one managerial/confidential application that is processed all the way to completion (i.e., a decision following a hearing) per contract term. As a result, it is usually a good idea to file one omnibus application covering all potentially affected employees rather than several separate ones."
If you have any questions regarding managerial and/or confidential employee status or changes, feel free to contact Lamb & Barnosky, LLP.
Lamb & Barnosky cautions that:
“THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.”
Riverhead v Foote, State Sup. Ct., [Not selected for publication in the Official Reports]
Exposure to the possibility of suffering a line of duty disability is a significant occupational hazard for law enforcement and fire personnel. Sections 207-a and 207-c of the General Municipal Law were adopted to give law enforcement and fire personnel some economic protection should they be disabled in the course of their performance of their official duties.
However, these provisions of law set few guidelines with respect to their administration. Accordingly, contracts negotiated under the Taylor Law are including provisions concerning the implementation and administration of Sections 207-a and 207-c with increasing frequency. Current negotiated provisions typically deal with processing disability claims and the procedure for evaluating disabilities for the purpose of receiving, or continuing to receive, Section 207-a benefits payable to disabled firefighters or 207-c benefits payable to disabled law enforcement personnel.
Courts are now setting out the basic principles to be applied in negotiating such provisions and in resolving disputes arising under such provisions.
The Riverhead case involved the determination of an arbitrator concerning assigning a disabled police officer to light duty. In Riverhead, the basic issue submitted to arbitration concerned a determination as to whether or not Riverhead police lieutenant Frederick Foote, then receiving Section 207-c benefits, could perform light duty.
Section 207-c.3, as does Section 207-a.3, provides for the discontinuation of benefits in the event a disabled individual refuses to accept an appropriate light duty assignment for which he or she is determined to be medically qualified to perform.*
In Foote’s case, the negotiated agreement provided that if Riverhead proposed to terminate the Section 207-c benefits being paid to a police officer and the police officer objected, he or she could submit the issue to arbitration. The agreement authorized the arbitrator to make a de novo determination, but provided that the arbitrator could not amend, modify, nullify, ignore, add to, or subtract from the provisions of the contract procedure.
The question Riverhead and Foote presented to the arbitrator:
Did Riverhead, by a preponderance of the evidence, show that Foote was capable of performing light duty work and [i]f so, or if not, what shall his employment status be?
After considering the evidence presented, the arbitrator concluded that Riverhead failed to provide sufficient evidence to demonstrate that Foote was capable of performing light duty work. But the arbitrator went further, finding that Foote was capable of performing very light duty work with severe restrictions and said the question should be submitted to a third impartial physician, to determine the nature of such very light duty work.
Riverhead filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the award; Foote asked the court to confirm the award.
The arbitrator’s referral of the matter to a third impartial physician for the purpose of determining an appropriate light duty assignment for Foote proved fatal to his award. State Supreme Court Judge Lester E. Gerard decided that:
1. The award was inherently contradictory; and
2. The arbitrator failed to make any determination as to Foote’s ability to perform light duty work as required by the agreement.
Judge Gerard vacated the award, holding that the arbitrator, under the terms of the collective bargaining agreement, was required to make a de novo determination concerning placing Foote in a light duty assignment and that he failed to satisfy this obligation.
While Riverhead deals with the resolution of an appeal from an administrative decision, sometimes a negotiated agreement will go beyond matters concerning the consideration and processing of Section 207-a and Section 207-c claims.
The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.
The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.
Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c. Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement. Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.
Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary.
Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.
Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:
1. Had been included in the contract by mistake and
2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.
The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.
Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.
As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.
Accordingly, it appears that Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement are entitle to Section 207-a type benefits.
* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.
Auguste v NYC Health and Hospitals Corp., 271 AD2d 215 [Appeals on Constitutional grounds dismissed, 95 NY2d 930, motion for leave to appeal denied, 96 NY2d 704]
Section 45 of the Civil Service Law sets out the rights of the employees of a private sector employer in the event the State or a municipality takes over the private entity. However, sometime special legislation addressing a specific takeover situation is adopted. Section 7390 of the Unconsolidated Law is an example of such special legislation.
Section 7390 was enacted in the early 1970s in response to the New York City Health and Hospital Corporation’s [HHC] decision to take over many of the functions then being performed by a number of voluntary hospitals. This change was expected to have an impact on several thousand workers. In particular, Section 7390(2) gave civil service status to the employees affected by HHC’s reorganization changes under certain conditions.
The Appellate Division in deciding the Auguste case ruled the provisions of Section 7390(2) applied in a takeover situation that occurred some 30 years after the statute was enacted.
Gislaine Auguste, a Senior Medical Laboratory Technologist at Lincoln Hospital, was an employee of New York Medical College [NYMC]. NYMC provided Lincoln with pathology services under an affiliate agreement with HHC. When HHC decided not to renew its affiliation agreement with NYMC in 1997, Auguste found herself without a job.
Arguing that her position at Lincoln was transferred rather than abolished, Auguste sued. Her theory: she had a statutory right under Section 7390(2) to continued employment based on her seniority and her status with NYMC and other affiliate employers. The Appellate Division agreed and directed HHC to reinstate her with back salary.*
Auguste’s basic argument: The 13 new positions were civil service positions with duties similar to those of her former position with NYMC and she had civil service status without having to qualify by examination pursuant to Section 7390(2).
Auguste, who had 32 years of service to her credit at the time she was terminated, apparently was employed by an HHC affiliate when Section 7390 was enacted. Although she was not affected by the administrative changes HHC actually made during the 1970s, this employment presumably gave her a vested right to the benefits granted employees of HHC affiliates by Section 7390 so long as she continued in uninterrupted service with HHC affiliates.
The Appellate Division specifically rejected HHC’s contention that Section 7390 was intended to apply only to the staffing changes resulting from its 1970s reorganization plan.
Citing Butler v New York City Health and Hospitals Corp., 82 AD2d 136, the Appellate Division held Section 7390:
1. Gave civil service status to former employees of a voluntary hospital whose functions were transferred to an HHC affiliate; and
2. Specifically provides that employees of voluntary hospitals providing services that are assumed by HHC shall be transferred to HHC.
The bottom line: the court said that Section 7390, although enacted to address situations arising in the 1970s, was not limited to that specific period but operates to continue affected employees in their employment in similar or corresponding positions as HHC employees, including individuals affected by the non-renewal of the HHC-NYMC affiliation agreement in 1997.
Accordingly, Auguste continued to be protected by Section 7390 when her employment by an HHC affiliate was discontinued through no fault of her own some 30 years later.
* Eleven former Lincoln/NYMC pathology department employees, together with two new employees, were appointed to new HHC positions of Associate Laboratory Microbiologist.
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:
Declining to reveal “sensitive family information” held mitigating circumstances sufficient to justify recommending a less severe disciplinary penalty
Department of Sanitation v Anonymous, OATH Index #181/11
An employee admitted she was absent without leave for almost one year.
In mitigation, the employee testified regarding personal and health problems and said that she did not request leave because she would have to reveal sensitive information about her family, and was afraid it would not be kept confidential.
OATH Administrative Law Judge Faye Lewis found that although leave would have been granted had the employee properly requested it, Anonymous could be disciplined for taking absence without leave.
In consideration of extraordinary mitigating circumstances, however, ALJ Lewis recommended a sixty-day suspension without pay, which recommendation the appointing authority adopted.
The decision is posted on the Internet at:
Aures v Buffalo Board of Education, 272 AD2d 664
The Aures decision demonstrates the problem that could result if a party fails to appear at an administrative hearing as scheduled -- the hearing officer may hold the hearing in absentia and the determination will be binding on the parties.
Although it had not participated in the administrative hearing, the Buffalo Board of Education [Buffalo] attempted to overturn a determination by an Unemployment Insurance Administrative Law Judge [ALJ] holding that Karen M. Aures was eligible for unemployment insurance benefits.
Aures, one of number of temporary teachers employed during academic 1996-1997, had applied for unemployment insurance benefits at the end of the school year. The local office of the Division of Unemployment Insurance found that Aures had received reasonable assurances of continued employment for the next academic year and disapproved her application for benefits. Aures appealed.
The key to a teacher’s eligibility for unemployment insurance between school years depends on his or her receiving a reasonable assurance of reemployment for the next school year within the meaning of Section 590(10) of the Labor Law.
An administrative hearing was scheduled but Buffalo failed to appear at the hearing. The Administrative Law Judge [ALJ] elected to proceed to hold the hearing notwithstanding Buffalo’s absence. The bottom line: the ALJ overruled the initial determination, holding Aures was eligible to receive benefits.
When Buffalo learned of the decision, it asked the ALJ to reopen the case. The ALJ denied Buffalo’s motion and the Unemployment Insurance Appeals Board [Board] affirmed the ALJ’s ruling. Buffalo subsequently asked the Board to reconsider its decision concerning Buffalo’s motion to reopen the matter. The Board agreed to do so, but ultimately decided to adhere to its previous ruling that sustained the ALJ’s determination denying Buffalo’s request to reopen the hearing. Buffalo appealed.
Why didn’t had Buffalo appear at the hearing before the ALJ? According to the court, Buffalo’s excuse for its not appearing at the hearing as scheduled: the unavailability of certain key witnesses.
The Appellate Division was not impressed by this argument. Noting that the key witnesses in question were under Buffalo’s control, the court said that “[h]aving elected to assign such witnesses to their regular duties rather than directing them to attend the scheduled hearings, [Buffalo] cannot now be heard to complain.”
The court affirmed the Board’s rejection of Buffalo’s motion to reopen the matter, explaining that the decision to grant an application to reopen lies within the discretion of the Board.
Unless it can be shown that the Board abused its discretion, the Board’s decision will not be disturbed by the courts. The Appellate Division decided that the record supported a finding that Board had not abused its discretion and dismissed Buffalo’s appeal.
February 24, 2011
Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the termination
Matter of Mathis v New York State Dept. of Correctional Servs., 2011 NY Slip Op 01190, Appellate Division, Fourth Department
Probationary correction officer Demar Mathis filed an Article 78 petition challenging his termination from his employment for “failure to complete his probationary period in a satisfactory manner.”
Supreme Court granted Mathis’ petition, annulled the appointing authority's determination and reinstated him to in his former position with back pay. Although Supreme Court thereafter granted the Correction Department’s motion to reargue its opposition to Mathis’ petition, it ultimately adhered to its prior decision.
The Department appealed and the Appellate Division overturned Supreme Court’s ruling.
First, the Appellate Division said that it agreed with the Department’s argument that at the time of his termination, Mathis was a probationary employee who could be terminated for “almost any reason or for no reason at all," citing Matter of Swinton v Safir, 93 NY2d 758.
It then noted that although Mathis’ probationary term was to expire on October 29, 2007, it was extended by 92 days in accordance with the provisions set out in 4 NYCRR 4.5(g) in the event a probationer is absent during his or her probationary period.*
The Appellate Division said that Supreme Court erred when it concluded that Mathis was no longer a probationary employee on the date he was terminated because Supreme Court calculated the extension required by 4 NYCRR 4.5(g) using calendar days rather than workdays.
In the words of the Appellate Division, “Where, as here, a probationary term is extended pursuant to 4 NYCRR 4.5 (g), the extension is "one workday for every workday" the employee has missed.”
The Appellate Division than opined that "As a probationary employee, [Mathis] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason." Mathis, said the court, made no such showing here and that the record indicated that he had excessive absenteeism, disobeyed a direct order to return to work and continued to have absenteeism problems after being counseled about his absenteeism.
The court agreed with the Department that "[c]hronic absenteeism is a sufficient basis for terminating a probationary employee" as is the refusal to comply with a direct order.”
* 4 NYCRR 4.5(g), in pertinent part, provides that with respect to absence during probationary term, Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term. … Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term.
The decision is posted on the Internet at:
Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. 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 Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011), the Court found that weekly calls by the employee's immediate supervisor during the employee's approved, post-back surgery FMLA leave to determine when the employee would return to work interfered with the employee's FMLA rights by discouraging or "chilling" the use of FMLA leave.
The employee claimed that, as a result of the calls, she felt pressured to return to work rather than remain on FMLA leave.
The employer argued that, because the employee did not in fact return to work earlier, the employee failed to establish her FMLA interference claim.
The Court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave." 29 CFR 825.220(b).
Mr. Bosland Comments: The decision correctly posits that "interference" includes discouraging an employee from exercising FMLA rights. The decision is curious in that it fails to address the employer's right to require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, as permitted by 29 CFR 825.311(a).
From the decision, it does not appear that the employer argued the point. Of course, it is possible that an employer may abuse the right to require periodic status reports resulting in illegal interference. For example, if the employee was provided a certification that stated unequivocally that an employee needed a set period of leave and would return on a date certain, an employer that nevertheless requested periodic status reports on a daily or weekly basis may be found to have crossed the line into impermissible interference.
Unfortunately, it is not clear from the Terwilliger decision why weekly status reports in that case interfered with the employee's FMLA rights. The decision simply fails to detail why it was unreasonable for the supervisor to require weekly status reports. If the duration of approved leave is unknown weekly status reports would appear to be reasonable.
The decision appears to be a product of the inferences favoring the nonmoving party (the employee) faced with the employer's motion for summary judgment. I do not believe it stands for the proposition that weekly status reports are a per se violation of the FMLA no matter what the factual circumstances. Rather, because periodic status reports are specifically permitted by the FMLA, there will be some situations - particularly where the duration of the employee's FMLA absence is unknown - where weekly status reports do not interfere with an employee's FMLA rights.
Carson v NYC Dept. of Sanitation, 271 AD2d 380
The Carson decision demonstrates the general rule that promises made by a public employee to an applicant or to another worker are not binding on the appointing authority unless the individual is authorized to make such commitments on behalf of the appointing authority.
Calvin Carson was terminated from his position with the New York City Department of Sanitation [DOS]. When his request to be reinstated to his former position was denied, he sued, claiming breach of contract. The basis for his breach of contract action: Carson alleged that a DOS employee had promised him that he would be reinstated to his former position upon his completion of a drug treatment program.
Citing Granada Building, Inc v City of Kingston, 58 NY2d 705, the Appellate Division dismissed Carson’s appeal. The court said that even if Carson had been promised reinstatement by the DOS employee, the promise was unauthorized and DOS was not bound by it.
On a procedural point, the court noted that although Carson had sued for breach of contract, Supreme Court Judge Beverly Cohen had correctly converted Carson’s complaint into an Article 78 proceeding to annul DOS’s determination to terminate Carson from his position. Why? Because, the court explained, Carson’s original petition effectively sought [his] reinstatement to his former position as a DOS employee, and [DOS] had the statutory and regulatory authority to issue a final and binding determination with respect to this employment. Such decisions by the appointing authority are tested via an Article 78 procedure action rather suing for breach of contract.
Carson also contended that the doctrine of promissory estoppel supported his demand for reinstatement. The Appellate Division rejected this theory, commenting that there was no merit in applying the doctrine in Carson’s case, particularly in light of [his] prior execution and violation of a final termination agreement, which agreement was concealed from the DOS employee alleged to have promised Carson’s reinstatement.
The same basic rationale was applied in Schwartz v Crosson, 165 AD2D 14, a case decided by the Appellate Division, Third Department.
Michael Schwartz was promised a certain salary upon appointment to public service only to learn that he would be paid at a lower rate once he reported for duty.
The Appellate Division said that the doctrine of estoppel was not applicable even though Schwartz had relied upon the information given to him concerning his salary upon appointment to his detriment. The decision notes that it is well settled that estoppel is generally not available against the State when it acts in a governmental capacity.
The Court also said that although an exception to the general rule exists in “unusual factual situations” to prevent injustice, it did not believe that Schwartz’s situation fell within such an exception.
Significantly, the Carson ruling notes that the possibility of one public employee misinforming another public employee concerning personnel matters, while unfortunate, is not so “highly unusual” that the general rule against estoppel should be ignored.
The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration
Town of Newburgh v CSEA, 272 AD2d 405
Although an arbitrator sustained the Newburgh’s dismissal of an employee who was found guilty of testing positive for marijuana, this did not end the matter.
The employee’s union, the Civil Service Employee’s Association [CSEA], filed a second grievance alleging that the Town had violated the collective bargaining agreement because it had suspended the individual for more than 30 days without pay prior to the arbitrator’s determination. CSEA demanded that the second grievance be submitted to arbitration.
In effect, CSEA argued that because the final resolution of the charges occurred upon the issuance of the disciplinary arbitration award, the employee in question was wrongly suspended without pay for a period of more than 30 days prior to the issuance of the award.
The Town, contending that considering a second grievance necessarily presents a risk of inconsistent awards, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order staying the arbitration. State Supreme Court Peter C. Patsalos to grant the Town’s petition to stay the arbitration; the Appellate Division, Second Department, reversed.
The Appellate Division pointed out that the arbitrator in the disciplinary action apparently did not directly address the question of whether, pursuant to the parties’ collective bargaining agreement, the employee could be suspended without pay for more than 30 days pending disposition of the disciplinary charges against him.
The Appellate Division rejected the Town’s argument that arbitration of the second grievance necessarily presents a risk of inconsistent awards.
Accordingly, the court said that under these circumstances the correct rule to apply is that which holds that it is for a successive arbitrator to decide any res judicata [an already decided issue] or collateral estoppel effect is to be given to a prior arbitration award.
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.
February 23, 2011
Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement
Matter of Laird v Village of Pelham Manor, 2011 NY Slip Op 01278, Appellate Division, Second Department
The PBA and the Village of Pelham Manor entered into a collective bargaining agreement that included a procedure to be followied by an police officers seeking disability and other benefits available to him or to her pursuant to General Municipal Law §207-c.
The CBA’s procedure provided for the filing of an application for benefits, a determination to be made on the application submitted, and the review of the determination if the applicant was unhappy with the decision including appealing the denial of such benefits in the event the police officer’s application for §207-c benefits was rejected because the “applicant failed to comply with the agreed-upon procedures.”
The Village denied the application for §207-c benefits filed by police officer Christopher Laird after determining that he did not file his application for such benefits within the time limit permitted for filing such claims set out in the CBA.
Laird appealed the determination and he was given an opportunity to demonstrate that he had credible reasons for failing to file the application within the agreed-upon period. His appeal was denied and ultimately the Village Board of Trustees affirmed the initial finding that Laird’s application seeking §207-c benefits was untimely.
The Appellate Division sustained the Village Board’s decision, ruling that the Board’s determination was “rationally based.”
The court said that the appropriate application forms were available to Laird upon request and found that other police officers following the procedure set out in the collective bargaining agreement had been granted “disability status” after filing a timely application for §207-c benefits.
The decision is posted on the Internet at:
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic handbook.
Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle
Taxi & Limousine Commission v Alvarez, OATH Index # 924/11
OATH Administrative Law Judge Alessandra Zorgniotti found that a Taxi & Limousine Commission inspector, Rafael Alvarez, negligently operated a City car when he failed to yield the right-of-way and collided with another car.
Specifically, Alvarez was charged with failing to yield the right-of-way to another vehicle and colliding with the other vehicle in violation of Agency Rules 35 (reasonable care of agency vehicles) and 36 (compliance with laws and rules relating to use of agency vehicles).
The ALJ noted that “The fact that [Alvarez] may be negligent as a matter of law in a tort action does not automatically demonstrate that he is guilty of misconduct in a disciplinary proceeding. Some unavoidable driving accidents may not be misconduct.”
As to “unavoidable driving accidents,” Judge Zorgniotti commented that “However, TLC inspectors are required to exercise “reasonable care” when driving a city vehicle, to follow the [State’s Vehicle and Traffic Law], and to prevent accidents.” The City Vehicle Driver Handbook provides in relevant part:
Preventable Accidents. An accident that is not deemed chargeable by the police may still be assessed as preventable by the agency’s Accident Review Committee. The committee shall recommend appropriate disciplinary action to be taken in connection with the violation of New York State Vehicle and Traffic Laws and the Agency’s Code of Conduct. Preventable accidents may subject the driver to agency disciplinary proceedings if agency rules have been violated. Preventable accidents may occur because the driver:
• Violated NYS Motor Vehicle Law, regardless of whether the police issued a summons;
• Operated the vehicle inattentively, including failure to exercise defensive driving skills;
Finding that Alvarez “failed to yield the right-of-way to another vehicle and collided with the other vehicle in violation of Agency Rules 35 and 36,” Judge Zorgniotti recommended that Alvarez be suspended without pay for twenty-work day.
The decision is posted on the Internet at:
Placing an individual on unpaid administrative leave did not violate employee's Fourteenth Amendment rights to due process
Paul Barrows v John Wiley and Luoluo, US Circuit Court of Appeals, 7th No. 05 C 658, 2007 U.S. App. LEXIS 3792
The U.S. Circuit Court of Appeals ruled that placing a public university employee on unpaid administrative leave and requiring him to use leave credits in order to remain on the payroll did not violate his Fourteenth Amendment rights to due process.
The University of Wisconsin-Madison had employed Paul Barrows in various academic capacities for more than 20 years, most recently as Vice Chancellor for Student Affairs. Barrows annual salary as Vice Chancellor was $191,749.00.
This case arose when Barrows was asked to submit a letter of resignation, which he claimed he did reluctantly. In a letter dated November 1, 2004, Barrows stated that he was stepping down from his position as Vice Chancellor for Student Affairs, explaining that “[w]ith recent changes in my family situation, and the stress those bring, I am proposing to take some personal leave time.”
Barrows later asserted that he did not resign from his position, but rather that one of the defendants, Wiley, had fired him.
While on “unpaid administrative leave,” Barrows continued to be paid at the annual rate of pay he received as Vice Chancellor for Student Affairs -- $191,749.00 – by charging his various leave accruals. On June 23, 2005, Barrows was placed in his backup position in the Provost’s Office with an annual salary of $72,881.00. That same day, Barrows was placed on paid administrative leave.
One of the complaints in Barrows’ petition alleged that forcing him to use his leave credits in order to remain on the payroll prior to his reinstatement in his “backup position” without notice or the opportunity to be heard violated his Fourteenth Amendment right to due process.
The Circuit Court affirmed the district court’s ruling that held that Barrows’ Fourteenth Amendment rights had not been violated. It said that:
1. There is no evidence in the record that Barrows requested to be placed in his backup position or challenged the University’s failure to immediately place him in his backup position.
2. Although Barrows asserted in his affidavit that he sought to return to work, this generalized statement is insufficient to establish that he sought his backup position.
3. Barrows failed to assert economic harm flowing from the University’s decision not to immediately place him in his backup position. As noted, while he was on leave Barrows continued to receive compensation at the Vice Chancellor rate of pay of $191,749.00 annually, as opposed to the rate of pay for his backup appointment, $72,881.00.
The court also rejected Barrows’ argument that he suffered an economic harm by being forced to use his leave time in order to remain on the payroll while on “unpaid administrative leave.” Barrows claimed that several University policies allowed employees to receive compensation for the leave credits that he was required to use in order to remain in pay status. In effect, Barrows contended that by forcing him to use this leave time, rather than placing him in the backup position, the University deprived him of the extra compensation he would have received after he left the backup position.
The problem with Barrows’ argument, said the court, is that he failed to present sufficient evidence of an economic harm because he failed to provide an adequate loss calculation.
Holding that Barrows failed to establish either a property interest or an economic harm flowing from the University’s decision not to immediately place Barrows in his backup position, and instead placed him on unpaid administrative leave, requiring him use his leave time in order to receive compensation, it ruled that Barrows’ due process claim failed. Accordingly, the district court properly granted the defendants’ motion for summary judgment.
The decision is posted on the Internet at:
Matter of [Anonymous] v Commissioner of Labor, 38 AD3d 961
A New York State Trooper was involved in a one-vehicle accident while off-duty. Found to have been drinking alcohol prior to the accident and uncooperative with the local police officers investigating, the Division found that the Trooper’s actions were in violation of the Division’s Regulations prohibiting conduct "tending to bring discredit upon the Division of New York State Police.
The Trooper was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period. The Trooper accepted the penalty imposed.
While in probationary status and again while off-duty, The Trooper was involved in a two-car accident. He refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, the Trooper was terminated.
The Trooper, however, was subsequently acquitted of the driving under the influence charge.Following his termination the Trooper applied for unemployment insurance benefits. An Administrative Law Judge [ALJ] ruled that the Trooper’s behavior had not risen to the level of disqualifying misconduct.
The decision indicates that the ALJ’s ruling was essentially based on the fact that the Trooper had been acquitted of the driving under the influence charge. The Unemployment Insurance Appeal Board affirmed its ALJ’s decision. The Division of State Police appealed.
The Appellate Division overturned the unemployment insurance benefit award. It said that the determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve. However, there must be substantial evidence in the record to support the Board's decision. Here, said the court, it did not find substantial evidence supporting the Board's determination that the Trooper’s termination was not a result of disqualifying misconduct.
The court’s rationale: An employee's willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved … constitute[s] misconduct," citing Matter of Ladner [City of New York - Commissioner of Labor], 254 AD2d 563. In the words of the Appellate Division:
Such behavior is particularly egregious where, as here, "the claimant has already been placed on probationary status for similar conduct" (see Matter of Blake [Commissioner of Labor], 2 AD3d 1035.
The Division had argued that the Trooper's conduct in, among other things, “getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal.” According to the decision, the Trooper admitted that "[he did] know that as a Trooper that [one] should not drink and drive."
The court ruled that “Under these particular circumstances, the Board's conclusion that claimant's actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record.”
The decision is posted on the Internet at:
February 22, 2011
The New York State Civil Service Law is now available as an "app" for use with an iPad, iPhone or iPod Touch
Source: Appolicious Inc.
The developer of this application reports that it provides the full text of the 2011 New York Civil Service Law [sic] in an easily readable and searchable format and provides the user with the following:
The full text of the New York State Civil Service Law
The ability to perform a fast full-text search and to search within search results to narrow down matches and create bookmarks .
As to mechanics, the user can navigate through the text of the Civil Service Law by swiping a finger.
No network connection is required and the developer states that it "runs fast and uses little memory."
Additional features include support for Portrait or Landscape mode and allows the text to be rotated to the Landscape mode for a larger font display
For additional information click on:
In an Article 75 action to vacate an arbitration award, the moving party is required to prove its entitlement to the vacating of the arbitrator's award by the court
Matter of New York State Dept. of Correctional Servs. v New York State Correctional Officers & Police Benevolent Assn., 2011 NY Slip Op 30254(U), Sup Ct, Albany County, Judge Joseph C. Teresi [Not selected for publication in the Official Reports]
In this CPLR §7511 action to annul an arbitration award on the grounds that the arbitrator exceeded his powers, Judge Teresi dismissed the Department of Correctional Services’ petition because the Department “failed to demonstrate its entitlement to annulment of the arbitrator's award.”
Judge Teresi explained that "An arbitration award may be vacated under CPLR 7511 (b)(1)(iii) as in excess of the arbitrator's authority only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."
The Department, said the court, did not cite either a strong public policy or irrationality as the basis for its excess power claim. Here the Department “must demonstrate that "a specific limitation on ... [the arbitrator's] power enumerated in the arbitration clause itself has been violated."
In this challenge to the award made by the arbitrator in a “disciplinary arbitration,” the arbitrator's power was set out in the Collective Bargaining Agreement as to “determinations of guilt or innocence and the appropriateness of proposed penalties, taking into account mitigating and extenuating circumstances.” Further, the “Disciplinary arbitrators shall neither add to, subtract from nor modify the provisions of the agreement... the disciplinary arbitrator may approve, disapprove or take any other appropriate action warranted under the circumstances."
After the hearing, the arbitrator found the employee involved “guilty of negligently causing damage to a State vehicle, the only charge against her.” However, the arbitrator rejected the Department’s proposed penalty and, instead, imposed a "$250.00 fine.”
The arbitrator's guilty finding and fine imposition were not at issue. Rather, the Department complained that arbitrator's decision concerning expungement of material from the employee’s personnel records and retention of jurisdiction over the disciplinary action exceed his authority.
The court said that the CBA does not specifically preclude the arbitrator from taking either action and that the Department did not introduce any evidence that the CBA contains a specific limitation on an arbitrator's continuing jurisdiction to ensure implementation of a penalty.
Judge Teresi said that the fact that the CBA was silence on this issue does not constitute a specific limitation nor did the arbitrator's expungement remedy "add to, subtract from nor modify" the CBA” but, rather, in accord with the CBA, the arbitrator took "other appropriate action warranted under the circumstances."
As the Department failed to demonstrate its entitlement to annulment of the Arbitrator's Award, Judge Teresi denied its petition.
The decision is posted on the Internet at:
February 21, 2011
PERB ALJ holds the County’s unilateral discontinuing its past practice of reimbursing Medicare Premiums to its retirees an improper practice
In the Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and County of St. Lawrence, Public Employment Relations Board, Case no. U-29935 [Decision made available to NYPPL through the courtesy of Paul S. Bamberger, Esq., Senior Counsel, CSEA Legal Department.]
Civil Service Employees Association, Inc., Local 1000, filed an improper practice charge alleging that St. Lawrence County violated §209-a.1(d) of the Public Employees' Fair Employment Act (The Taylor Law) when it announced to all current employees changes in the County's Medicare Part B reimbursement policy. The County filed an answer denying that its actions violated the Act.
In lieu of a hearing, the parties stipulated the following critical facts:
1. In 1985, the County Board of Legislators passed Resolution No. 361-85 providing that the County would reimburse eligible retirees – i.e., County employees with at least five years of service -- twice each year for their cost of Medicare Part B premiums “for life”.
2. The premiums for Medicare Part B have increased over the years, from 1985 to the present, and the County continually reimbursed Medicare eligible retirees and their spouses for the full cost of the Medicare Part B premiums as they increased.
3. On November 17, 2009, the County Legislature passed Resolution No. 368-2009 amending the Medicare Part B reimbursement policy set forth in Resolution 361-85 whereby the County would not increase the reimbursement of Medicare Part B premiums above the amount of the cost of the premiums as of January 1,2010, regardless of any increases in Medicare Part B premiums after that date.
4. The County discontinued its reimbursement practice with respect to County employees who retire after December 31, 2010.
On this record, said PERB Administrative Law Judge Jean Doerr, “it must be found that a past practice exists, binding the County to continue the reimbursement of the Medicare Part B premium to eligible retirees and their spouses.”
Judge Doerr pointed out that the parties stipulated that the reimbursement policy began in 1985 and continued to the present with the full knowledge of County management and County employees. Accordingly, and consistent with the Board's holding in Matter of Chenango Forks, [40 PERB 3012 (2007)], the ALJ ruled that the payment of Medicare Part B premiums encompasses a mandatory subject of collective bargaining "as it is in the nature of benefits related to health insurance for employees upon retirement, whether or not those employees retire during the life of the agreement."
The ALJ rejected the County’s theory “that because the reimbursements were made as a result of a public act of a municipal board, County employees could not have reasonably expected that the payment of Medicare Part B premiums would continue unchanged,” concluding that its argument in this respect was misplaced.*
Judge Doerr explained that “the nature of the enabling legislation upon which an employer acts is not controlling” as it is the act of the employer in providing the benefit, and not the legislative body at whose direction the employer acts, "which we look to in determining, as here, the existence of an enforceable past practice."
Further, the ALJ noted that the County stipulated “that the 24-year practice was well known to all County employees” and created an “expectation of the continuation of the practice … from its duration with consideration of the specific circumstances under which the practice has existed."
Judge Doerr ruled that the County violated §209-a.1(d) of the Taylor Law when it unilaterally announced to its current employees that it would no longer reimburse retirees and their spouses for the cost of Medicare Part B premiums for those unit employees who retire after December 31, 2010, and that reimbursement would be frozen at January 1, 2010 levels for those unit employees who retire by December 31, 2010.
New York Public Personnel Law earlier posted materials related to the issue of discontinuing the reimbursement of Medicare Premiums, in whole or in part, to retirees at:
* The County argued the acts of a public act of a municipal board are subject to repeal and amendment and is therefore recognized as temporary in nature, citing to Collins v. City of Schenectady, 256 AD 389 (3d Dept 1939), and Jewett v. Luau-Nyack Corporation, 31 NY2d 298 (1972).
February 19, 2011
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February 18, 2011
Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer
Matter of Cohen v New York State & Local Employees' Retirement Sys., 2011 NY Slip Op 01109, Appellate Division, Third Department
This decision by the Appellate Division illustrates the importance of the administrative hearing officer considering, and ruling on, all of the arguments and theories submitted by a petitioner in the course of an administrative hearing.
Morton A. Cohen, Esq., was employed as an Administrative Law Judge by the New York City Parking Violations Bureau [PVB] from 1998 to 2006.
In 2007, Cohen, then a member of the New York State Employees’ Retirement System [ERS], attempted to "buy back" his time with the PVB for members service credit in ERS.
An ERS Hearing Officer found that Cohen failed to establish entitlement to prior service credit for his service with the PVB and the State Comptroller accepted the Hearing Officer’s findings and conclusions, prompting Cohen to file an Article 78 petition seeking to overturn the Comptroller’s decision.
The Appellate Division noted that Retirement and Social Security Law §609(b)(1) provides that "[a] member shall be eligible to obtain retirement credit hereunder for previous service with a public employer . . . if such service . . . would have been creditable in one of the public retirement systems of the state."
Accordingly, said the court, Cohen’s entitlement to prior service credit is dependent on whether he was eligible for membership in the New York City Employees' Retirement System [NYCERS]. Further, said the court, the Administrative Code of the City of New York §13-104(1) provides, in relevant part, that membership in NYCERS "shall consist of . . . [a]ll persons in city-service."
"City-Service" is defined as "service, whether appointive or elective, as an officer or employee of the city or state of New York . . . so far as such service is paid for by the city" (Administrative Code of the City of New York §13-101[a]).
Noting that the State’s Vehicle and Traffic Law §236(2)(d) provides, in pertinent part, that "hearing examiners [of a parking violations bureau] shall not be considered employees of the city in which the administrative tribunal has been established," the Appellate Division ruled that substantial evidence supports the finding that Cohen was not an "employee" of the City of New York.
However, the court vacated the Comptroller's determination and remit the matter for further findings of fact “because the Hearing Officer failed to address [Cohen’s] claim that he was eligible for prior service credits as an ‘officer.’"
Cohen had specifically argued that, even if not an "employee," he should be considered an "officer" of the City of New York due to the powers, duties and overall nature of his position as a hearing examiner with the PVB.*
The Appellate Division said that “the failure to address [Cohen’s] contention that he was an "officer" of the City of New York prevented it from assessing whether the Comptroller’s denial of Cohen’s application was rational.
NYPPL has summarized other cases involving the denial of claims based on a finding that the individual “was not an employee of a public entity” or was “an employee of a non-public entity” at:
* Unless otherwise provided by law, while not all employees of a public entity are “officers,” “officers” of a public entity are “employees” of that entity.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01109.htm
Article 78 action held the appropriate vehicle to test a public employer’s administrative determination, or failure to act
Adams v The City of New York, 271 AD2d 341
Typically, challenges to action or inaction by a governmental agency are brought pursuant to Article 78 of the Civil Practice Law and Rules. There appears, however, to be a flurry of breach of contract cases filed against the City of New York in contrast to filing Article 78 petitions.*
For example, in the Adams case the Appellate Division, First Department ruled that while Adams’ complaint was pleaded as an action sounding in breach of contract and sought a court order requiring the City to adjust the salaries of certain of its employees, the relief actually being sought is to compel [the City] to discharge a duty in conformity with its personnel policies and procedures. As this action was in the nature of mandamus, the court held that Adams’ lawsuit was subject to the procedural requirements of Article 78, i.e., a four-month statute of limitations for bringing such actions.
The critical element for bringing a timely Article 78 action is the date on which the administrative determination or action is deemed final.
The court pointed out that in Adams’ case there were two additional factors to consider: whether the action sounds in mandamus [an action seeking to compel the performance of an official act] or in the nature of certiorari [an action seeking to review an administrative decision, i.e., an appeal].
According to the Appellate Division, in order to file an Article 78 action for mandamus relief, it is necessary to make a demand and await a refusal. The limitations period does not commence until the date of the refusal i.e., the Statute of Limitations begins to run from the date of the refusal. In certiorari cases, the Statute of Limitations begins running on the date on which the final administrative determination is made.**
In any event, if the governmental agency being sued wishes to plea the affirmative defense that the plaintiff’s action is untimely, it must plea and prove that the Article 78 action was not commenced until after the Statute of Limitations had expired.
Commenting that here the City failed to prove the date when agency action was final, the Appellate Division held that the finality necessary to commence the limitations period has not been established and thus Adams’ petition remains viable. The Appellate Division, after converting the case into an Article 78 proceeding, remanded it to Supreme Court for its determination as to whether or not it was a timely Article 78 action.
* It may be that the breach of contract actions may have been filed in an effort to avoid the relatively short Statute of Limitations applicable in bringing an Article 78 action.
** In addition to mandamus and certiorari, Article 78 is the modern version of two other ancient writs: the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].
Kimball v Pine Plains CSD, 272 AD2d 332
Kimball involves two common proceedings brought pursuant to Article 75 of the Civil Practice Law and Rules [CPLR]: one to confirm an arbitrator’s award; the other to vacate the award. State Supreme Court Judge John R. LaCava had confirmed the award.
Affirming Judge LaCava’s ruling, the Appellate Division said that [a]n arbitration award may not be vacated unless it is irrational, violates a strong public policy, or clearly exceeds a limitation imposed on the arbitrator as set forth in CPLR 7511(b) or if the arbitrator exceeds his or her authority.
When does the arbitrator exceed his or her authority? When, said the Second Department, the arbitrator gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties. Here, said the court, the determinations made by the arbitrator were within his power and not irrational. Accordingly, the award was properly confirmed.
Mason v MTA - New York City Transit Authority, #05-4349-CV, US Circuit Court of Appeals, 2nd Circuit
Samuel Mason sued the Transit Authority alleging unlawful discrimination on the basis of age and race. When a federal district court judge granted the Authority’s motion for summary judgment dismissing his complaint, Mason appealed.
The Circuit Court of Appeals said that summary judgment is appropriate only when there are no material issues of fact to resolve and the moving party is able to demonstrate that it is entitled to judgment as a matter of law.
In contrast, Mason, as the party opposing summary judgment, judgment “may not rest upon mere allegation or denials of his pleading.” He “must set forth specific facts showing that there is a genuine issue for trial.”
The court said that assuming, but not deciding, Mason established a prima facie case of discrimination on the basis of age or race, it agreed with the district court that Mason failed to present credible evidence that the MTA’s proffered justifications for not promoting him – mediocre work performance and a relative lack of qualifications – constituted a pretext for discrimination.
According to the decision, Mason offered only conclusory allegations in support of his claim. Thus, said the court, Mason failed to carry his burden to “produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [Authority] were false, and that more likely than not [unlawful discrimination] was the real reason for the [employment action].”
Since he failed to do so, the Circuit Court said that the district court was correct in granting MTA’s motion for summary judgment.
For the full text of the decision, go to:
February 17, 2011
Comptroller may select between conflicting medical opinions and his decision will be sustained if supported by substantial evidence in the record
Matter of Micalizzi v DiNapoli, 2011 NY Slip Op 00772, Appellate Division, Third Department
A police officer alleged that he harassed at work after he had publicly supported several fellow officers facing disciplinary action and further accused department officials of misconduct.
Following “a verbal and near-physical confrontation with a coworker” the officer took a medical leave of absence from work and eventually resigned from his position. He then filed an application for performance of duty disability and accidental disability retirement benefits with the New York State Employees’ Retirement System, asserting that the confrontation and related harassment had inflicted disabling psychological and related physical ailments.
His applications were disapproved and the officer requested a hearing. The Hearing Officer found that, among other things, the alleged psychological disability was not caused by the harassment and did not permanently incapacitate the individual from the performance of his law enforcement duties.
The Comptroller adopted the Hearing Officer’s findings and conclusions and denied the member’s applications and the individual appealed.The Appellate Division said that “In order to obtain either accidental or performance of duty disability retirement benefits, ‘petitioner bore the burden of demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of an accident or disability sustained in service.’"
In this instance, said the court, the individual’s treating psychologist and doctor, as well as an independent psychologist, opined that he suffered from a psychological disability that arose out of the workplace harassment and permanently disabled him from performing the duties of a police officer.However, the psychiatrist who examined the former officer on behalf of the New York State and Local Police and Fire Retirement System, while agreeing that the individual “suffered from a disability,” concluded that the disability would have arisen absent the alleged harassment and that factors outside of the individual’s duties as a police officer,” namely disciplinary proceedings resulting from his alleged improper recording of conversations with his coworkers, exacerbated it.
The System’s psychiatrist also indicated that the individual “could potentially resume work as a police officer if properly medicated and that a finding of permanency was not warranted based upon the medical evidence presented.”The Appellate Division, confirming the Comptroller’s decision, said that the Comptroller was free to credit the System’s psychiatrist’s rational and fact-based opinion over other evidence in the record and that his determination was supported by substantial evidence.
The decision is posted on the Internet at:
A NYPPL analysis
Section 75.2 provides that the appointing officer must allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.*
From time to time a NYPPL reader will ask “If an individual does not file an answer to Section 75 charges and specifications that have been served on the individual, may his or her silence be deemed an admission permitting the appointing authority to impose the proposed disciplinary penalty without holding a disciplinary hearing?”
A close reading of Section 75 suggests that an employer’s deeming an employee’s failure to file an answer to Section 75 disciplinary charges an admission of the employee’s guilt would not survive judicial review.
Section 75 does not require that the employee submit an answer to disciplinary charges in contrast to its mandate that the appointing authority allow the individual at least eight days to file an answer to the disciplinary charges.
Accordingly, it appears that the accused individual may remain silent and appear at the hearing without having submitted any answer to the charges without jeopardizing his or her right to administrative due process.
Furthermore, Section 75.2, in pertinent part, places “the burden of proving incompetency, and, or misconduct shall be upon the person alleging the same.” In other words, the failure of an employee to offer an explanation or a defense does not absolve the employer of its obligation to prove the charges of incompetency, and, or misconduct served on an employee in an administrative hearing before imposing disciplinary sanctions.
It is well-settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold a hearing in absentia rather then to merely proceed to impose a penalty on the individual simply because of his or her failure to appear at the hearing as scheduled [see Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 613]. Further, the charging party must prove its case by presenting substantial evidence of the employee’s guilt in the course of the hearing.
Given the fact that the courts require employers to conduct a hearing if an employee fails to appear at the disciplinary hearing, it seems unlikely that the courts would approve imposing a penalty on an individual without holding a hearing simply because he or she failed to “answer” the charges.
Moreover, Section 75 does not require an employee to ask for a hearing -- it is to be provided as a matter of right. Section 75 also requires that a transcript of the hearing be provided to the employee free of charge.
N.B. In contrast, Section 3020-a(2) of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires the individual request a hearing within 10 days after being served disciplinary charges [see Education Law Section 3020-a(2), subdivisions (c) and (d)]. The individual’s unexcused failure to request such a hearing permits the appointing authority to impose the proposed penalty without holding a disciplinary hearing.
Most alternative disciplinary procedures negotiated pursuant to the Taylor Law follow the Section 3020-a model. Typically, if the employee fails to file a timely “disciplinary grievance,” the collective bargaining agreement usually authorizes the appointing authority to impose the penalty proposed in the “notice of discipline” served on the individual without further action on its part and without referring the matter to arbitration.
* Section 75.2, in pertinent part, provides: “A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing.”
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
What is the status of the State’s Division of Military and Naval Affairs’ [DMNA] positions staffed by civilian employees? This was the question recently posed by a reader. In the opinion of the editor, such positions are in the competitive class of the classified service unless placed in a different jurisdictional class by law, rule or regulation.
Positions in the public service of the State are in either the civil service or the military service. Positions in the civil service are in either the classified service or the unclassified service; and positions in the classified service are automatically in the competitive class except where the statute provides otherwise or they have been placed in a different jurisdictional class by a rule or regulation adopted by the responsible civil service commission.
Has this issue -- what is the status of DMNA’S civilian employees -- ever been considered by a court? There is one decision in the files of Plain English Legal Publications addressing this question, at least peripherally -- Division of Military and Naval Affairs v PERB, 103 AD2d 876. This action tested a PERB decision holding that the Taylor Law applied to DMNA’s civilian employees.*
First, the Appellate Division, Third Department, rejected DMNA’s long-standing view that personnel employed by DMNA are in the military service and not in the civil service of the State by holding that DMNA’s view on this matter is not dispositive of the issue.
The court observed that DMNA’s personnel consists of a number of different classes of individuals including persons in the organized militia; persons on the state reserve list; persons on the state retired list; ... and all military (including air), naval and civilian personnel who may be serving or employed therein.**
Although DMNA argued that its civilian employees were not covered by the Taylor Law, contending that Section 201(7)(a) of the Civil Service Law specifically excludes persons holding positions by appointment or employment in the organized militia of the state, PERB decided that civilian employees in DMNA were not members of the organized militia and thus the Taylor Law did, in fact, apply to them.
Accordingly, such personnel could organize for the purposes of negotiating the terms and conditions of there employment with their employer. The Appellate Division agreed, sustaining PERB’s decision. The court said that PERB ruling was not irrational and therefore should not be disturbed.
Accordingly, as DMNA’s civilian employees are not in the military service, they must be employed in the civil service of the State.
The court explained:
1. DMNA is a division of the Executive Department, a public employer
2. Public employees are persons holding positions by appointment or employment in the service of a public employer.
3. Civilian employees fall within this definition and must be so considered.
4. Only individuals in the military service of the State, in contrast to all DMNA employees, are excluded from the provisions of the Taylor Law.
As the Taylor Law only applies to individuals holding positions in the public service, DMNA’s civilian employees must be in the public service and as they are not in the military service, such persons must be employed in positions in the civil service of the State.
* The minimum qualifications for employment as a civilian employees of DMNA may require the individual to be a member of the Organized Militia or some other military service or hold a particular military rank.
** The State’s organized militia consists of the New York Army National Guard; the New York Air National Guard; the Inactive National Guard; the New York Naval Militia; the New York Guard ... and such additional forces as may be created by the governor.
Declaratory ruling, 32 PERB 6601
Thinking of starting your own employee organization for the purpose of collective bargaining with a public employer? Then your next question should be: What does it take to be considered an employee organization for the purposes of the Taylor Law.
This was the question underlying the New York State Public Employees Association’s [NYSPEA] petition seeking a determination by PERB that it was an employee organization within the meaning of the Public Employees’ Fair Employment Act -- Article 14 of the Civil Service Law.
PERB Administrative Law Judge Philip L. Maier ruled that NYSPEA was such an employee organization, having met the following standards:
1. NYSPEA had adopted a constitution and by-laws indicating that it was organized and exists to improve the terms and conditions of employment only of employees in the public sector and was not affiliated with any other employee organization.
2. NYSPEA’s officers were to be elected from among its members and NYSPEA dues and agency fees were the property of the association and negotiations were to be conducted by its members.
3. NYSPEA established negotiating committees staffed by its members and had adopted a contract ratification procedure.
As NYSPEA satisfied these minimal requirements, its petition was granted.
February 16, 2011
Exception to the exclusion of a “pre-reporting for work accident” for the purposes of receiving workers’ compensation benefits
Matter of O'Neil v City of Albany Police Dept., 2011 NY Slip Op 00759, Appellate Division, Third Department
In general, accidents that occur outside of work hours and in public areas away from the workplace are not compensable. However, there is an exception to this general rule when the individual suffers an injury near the work site and the injury was the result of “an incident and risk of employment.” The O’Neil case illustrates the application of this exception to the general rule.
Theresa A. O’Neil, a City of Albany police officer, was expected to be present at roll call each morning at 8:15 A.M. to receive her duty assignment for the day. About 15 minutes before roll call O’Neil suffered an injury when she was in her private vehicle that was parked on a public street in the course of her reaching for a bag containing both personal and work-related items that was in her car.
The “work-related items” included O’Neil’s police radio, handcuffs and Penal Law books, all of which she needed to perform her duties as a police officer.
The “personal items” included O’Neil’s cans of soda, her lunch, spare clothing and “a variety of other personal items.”
O’Neil admitted that she was not required to bring her work-related equipment home and could have left these things in a locker at work. However, she said that she “elected to keep them in her car while off-duty so she would always know where they were.” She also conceded that she was not considered to be "on duty" until the moment she entered the police station.”
The Workers’ Compensation Board ruled that O’Neil had not sustain the underlying injury as the result of “an incident or risk of her employment” and dismissed her application for workers’ compensation benefits.
The Appellate Division agreed.
In this instance, said the court, O’Neil’s injury did not fall within an exception to the general rule that the accident or injury must have occurred while the individual was "on the job.
Although there is a so-called "gray area" exception that might be relevant when the accident or injury occurred near the work site, the Appellate Division pointed out that the test of compensability becomes "whether the accident happened as an incident and risk of employment," citing Matter of Husted v Seneca Steel Serv., 41 NY2d 140.
In this instance, said the court, O'Neil's accident did not fall within the "gray area" exception to the general rule.
The decision is posted on the Internet at:
Health & Hospital Corp. [Queens Hospital Center] v Toval, OATH Index #500/11
It is good practice to prepare each witness for an administrative hearing or a trial separately.
A recent case adjudicated by an OATH Administrative Law Judge highlights potential pitfalls of preparing multiple witnesses for trial together.
In this case a witness admitted that she had difficulty remembering what happened on the night of the charged incident and that her testimony were based in part on a conversation she had with another witness while the pair were being prepared for trial on the previous day. It was unclear what portions of the witness' testimony was based upon her independent recollection and what aspects were based on information provided by the other witness.
Administrative Law Judge Miller found that the joint trial preparation undermined the reliability of both witnesses.
The decision is posted on the Internet at:
Brown v Simmons, 478 F.3d 922
The lesson in Brown v Simmons is that a public employee is not entitled to a name-clearing hearing to rebut statements of a defamatory nature except when he or she has been terminated by the employer.*
Jim Brown, a teacher, sued James Simmons, the superintendent of the Conway (Arkansas) Public School District, alleging that Simmons infringed Brown’s procedural due process rights by denying him a name-clearing hearing. Brown contended that he was entitled to a name-clearing hearing because he was stigmatized by defamatory statements made by other school officials. In the words of the Circuit Court of Appeals, “Brown filed a “stigma plus” claim.”
The district court dismissed Brown’s complaint, finding that he failed to “state a claim upon which relief can be granted.” The Circuit court affirmed the district court’s ruling.
It noted that defaming a governmental employee’s reputation, good name, honor, or integrity in connection with terminating the employee, without giving the employee a name-clearing hearing, is a deprivation of the employee’s constitutionally protected liberty interest.
To state a “stigma plus” claim, the employee must allege:
(1) an official made a defamatory statement that resulted in a stigma;
(2) the defamatory statement occurred during the course of terminating the employee;
(3) the defamatory statement was made public; and
(4) an alteration or extinguishment of a right or legal status.
In response to Simmons’ motion to dismiss Brown’s cause of action, Brown alleged he had been transferred and lost pay. The district court, however, said that “even if accepted, [Brown’s claims] are insufficient to trigger the protection of the due process clause.”
The court, quoting from Hughes v. Whitmer, 714 F.2d 1407, said:
“the constitution does not require the government to give to its stigmatized employee a hearing if the public employee remains a public employee” and “the internal transfer of an employee, unless [the transfer] constitutes such a change of status as to be regarded essentially as a loss of employment, does not . . . give rise to a liberty interest meriting protection under the due process clause.
The Simmons decision appears consistent with the law in New York – dismissal is the triggering event entitling an individual to a name-clearing hearing.
As the New York State Court of Appeals held in Matter of Stanziale, 55 NY2d 735, -- where the basis for dismissal is of a "stigmatizing nature" the individual is entitled to some due process so as to clear his or her name.
In Matter of Murphy v City of New York, 2006 NY Slip Op 10135, decided December 28, 2006, Appellate Division, First Department, Index 109352/05, the court ruled that Murphy was entitled to a name clearing hearing following his “coerced retirement.” The Retirement System conceded that there had been dissemination of a report prepared by Retirement System that contained inaccuracies and was stigmatizing. Regardless whether Murphy resigned or was fired, the court said that he has satisfied the requirement of loss of employment that is necessary to demand a name-clearing hearing.**
For the full text of the decision, go to:
* The “New York Rule” in such situations is discussed in Ortiz v Ward, 546 NYS2d 624. In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. New York courts have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a "name-clearing hearing" was not required because of such intra-agency communications.
** See also of Johnston v Kelly, 35 AD3d 297, where the court said “the sole purpose of a name-clearing hearing is to afford the employee an opportunity to prove that the stigmatizing material in the personnel file is false."
Leave of absence from former position upon appointment from an open-competitive eligible list not required
Bethel v McKechnie, Ct. of Appeals, 95 NY2d 7
Is an appointing authority required to hold open a permanent employee’s position until the individual has completed his or her probationary period in a position to which he or she has been appointed from an open-competitive eligible list?
In Bethel the Court of Appeals ruled that a public employee who accepts an appointment to a position from an open competitive examination effectively resigned from his or her former position.
Earlene Bethel applied for, and was granted, a leave of absence from her permanent position as Contract Specialist II with New York City’s Community Development Agency [CDA] to accept a provisional appointment as a Staff Analyst with CDA. New York City’s Human Resources Administration [HRA] approved the provisional appointment with CDA, and, presumably her leave of absence from her permanent position.
In April 1995, the list for Staff Analyst was certified to HRA and Bethel was permanently appointed to the title, subject to her satisfactory completion of a one-year probationary period. After starting her probationary period, HRA told Bethel that her leave from her Contract Specialist position was canceled. Bethel did not challenged HRA’s action at that time.
Bethel was terminated before completing her probationary period for allegedly committing several acts of insubordination. When CDA refused to reinstate Bethel to her former position of Contract Specialist, she sued, claiming that she could not be terminated except after notice and hearing in accordance with Section 75 of the Civil Service Law because she held a permanent appointment as a Contract Specialist. The critical issue to be resolved:
Was Bethel promoted to the Staff Analyst position as that term is used in the Civil Service Law?
Section 63(1) of the Civil Service Law provides that when probationary service is required upon an employee’s promotion, the position formerly held by the individual promoted shall be held for him and shall not be filled, except on a temporary basis, pending completion of his or her probationary term.*
The Court of Appeals decided that Bethel had not been promoted and thus Section 63(1) did not apply to her situation. Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said that Section 63(1) provides job security to a permanent employee who is transferred or promoted to a position in which he or she is required to serve, but does not satisfactorily complete, a probationary period.**
Although the Court of Appeals noted that the term promotion is not explicitly defined in the Civil Service Law, the law clearly distinguishes between open competitive examinations and promotional examinations.
While Bethel received a higher salary in the new position, the court decided that she was not promoted within the meaning of the Civil Service Law because under Section 52.9 of the Civil Service Law, an increase in salary will be deemed a promotion only if the employee receives compensation beyond the limit fixed for the grade in which such office or position is classified.***
The Court said that agencies are not (1) required to keep open a prior permanent position for a probationary employee who has been neither promoted nor transferred and (2) Bethel was not entitled to a hearing prior to the cancellation of her leave of absence from her former position.
Concluding that Bethel was not promoted within the meaning of the Civil Service Law, the Court of Appeals ruled that Bethel effectively resigned her permanent position upon her accepting a permanent appointment as a Staff Analyst.
* Although a temporary appointment [see subdivisions 1 and 2 or Civil Service Law Section 64] or a contingent permanent appointment [see Civil Service Law Section 64.4] may be made to the resulting vacancy in such situations, a provisional appointment cannot be made to such a vacancy as the position “is not wholly vacant” [see Civil Service Law Section 65].
** Engoren, a caseworker, was appointed Probation Officer Trainee [POT] after passing an open competitive examination rather than a promotion examination. As there was no evidence existed that the open competitive examination was conducted in lieu of or simultaneously with a promotional examination, or that Engoren’s service as a Caseworker qualified her for a promotion as a POT, the court decided that she failed to prove that she had been promoted when appointed as a POT.
*** The Court of Appeals also noted that “Except as provided in [Civil Service Law] section fifty-one,” vacancies in positions in the competitive class are typically to be filled “by promotion from among persons holding competitive class positions in a lower grade in the department in which the vacancy exists, provided that such lower grade positions are in direct line of promotion, as determined by the state civil service department or municipal commission…”
Public Personnel Law E-books
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