Monday, March 31, 2014

Providing health insurance benefits to employee upon retirement


Providing health insurance benefits to employee upon retirement
2014 NY Slip Op 01496, Appellate Division, Third Department

A series of collective bargaining agreement (CBA) in effect from July 1996 to June 2002 provided that employees who retire with fifteen or more years of service to the District shall be entitled to District provided individual or family health insurance coverage, as applicable, at no cost to the retiree. The two successive CBAs contained that same provision with regard to retiree health insurance coverage, as well as a separate provision expressly addressing Medicare reimbursement that stated, "as of July 1, 2003, those who retire from Northeastern Clinton [Central School District] with 25 years of consecutive service in the [D]istrict shall be entitled to Medicare reimbursement for themselves and their spouse[s], while the retired employee is still living."

In 2010, after plaintiffs had retired, a successor CBA was executed between the District and the relevant collective bargaining unit which, among other things, provided that employees retiring on or after July 1, 2010 shall not be provided with Medicare reimbursement upon retirement. Shortly thereafter, defendant Board of Education, Northeastern Clinton Central School District adopted a resolution which, among other things, eliminated Medicare reimbursements for District retirees who were not already in receipt of such reimbursements as of July 1, 2010.

After receiving notice of the resolution, plaintiffs sued for breach of contract and for a declaratory judgment, claiming that they are entitled to Medicare Part B reimbursement under the CBAs in effect at the time of the employees' retirement.

One of the arguments advanced by the school district contended that, regardless of any contractual right to Medicare Part B reimbursements, the Insurance Moratorium Law (Chapter 594, Laws of 2009, Part B, §14) authorizes the school District to modify the retirees' coverage because a corresponding modification was made for active employees in the 2010-2014 CBA. 

The Appellate Division noted that this contention was rejected by the Court of Appeals in Kolbe v Tibbets, 22 NY3d 344.

In Kolbe the Court of Appeals said that “This case calls on us to decide whether certain collective bargaining agreements* conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired and, if so, whether unilateral modifications to that coverage are nonetheless permissible under either the contract terms or the New York Insurance Moratorium Law.”

The court held that the contracts establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees' vested contractual rights.

In the words of the Court of Appeals, “we reject the District's argument that, regardless of plaintiffs' contractual right to the "same coverage," the 2009 Insurance Moratorium Law allows the District to modify plaintiffs' coverage because a corresponding modification was made in the 2007-2012 CBA for active employees.

“The statute provides, in relevant part, that, "From on and after June 30, 1994 a school district board of cooperative educational services, vocational education and extension board or a school district . . . shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such board or district makes for such health insurance coverage below the level of such benefits or contributions made on behalf of such retirees and their dependents by such district or board unless a corresponding diminution of benefits or contributions is effected [sic] from the present level during this period by such district or board from the corresponding group of active employees for such retirees" (L 1994, ch 729, as extended by L 2009, ch 30).

“The District's interpretation of the statute relies on the erroneous conclusion that the Legislature's silence regarding contracted-for health coverage should be read as an intention to abrogate contractual rights. However, the Insurance Moratorium Law's primary purpose was to prevent school districts from eliminating or reducing retiree health insurance benefits that were voluntarily conferred as a matter of school district policy, not rights negotiated in the collective bargaining context (see New York State Assembly Memorandum in Support of L 1996, ch 83). The 1994 final report of the Temporary Task Force on Health Insurance for Retired Educational Employees, which originally recommended the legislation, proposed amending the then-temporary law to apply to contractually vested rights. Specifically, the Task Force proposed that the Legislature "mak[e] it clear that any negotiated health insurance benefits for present employees upon retirement can be affected in the same manner as any retiree's health benefits can be under the present temporary legislation; i.e., once retired a retiree's health insurance benefits may be diminished in a similar manner as negotiated for active employees without violation of the negotiated provision covering future retirees" (Final Report of the Temporary Task Force on Health Insurance for Retired Educational Employees, December 1, 1994, at 6 [emphasis supplied]). Significantly, the Legislature never adopted this proposal, or any of the Task Force's proposed amendments to the temporary statute then in effect, but instead enacted it into permanent law unchanged.

“In light of this legislative history, as well as the statute's plain language, Supreme Court correctly concluded that the statute only prescribed "a bottom floor, beneath which school districts and certain boards were forbidden to go in diminishing benefits. It was not meant to eviscerate contractual obligations and decades of contract law."

* The Court of Appeals commented that “despite the fact that the successor CBA was retroactively effective to 2007, it is undisputed that even those plaintiffs who retired in 2007 and 2008 effectively retired under the 2003-2007 CBA, since the subsequent CBA was not executed until 2010. This stipulation accords with the reality that these plaintiffs were not represented by the CSEA in the portion of the negotiations that took place after their retirement, and that the bargains struck in the 2007-2012 agreement would thus not be enforceable by them.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01496.htm
.

Saturday, March 29, 2014

Posted on the Blogs:


Posted on the Blogs:

The Digital Journal has posted an article prepared by White, Ricotta & Marks, P.C. [www.queensemploymentattorney.com] highlighting some of the recent changes to the disciplinary hearing procedures set out in Education Law §3020-a. The article is posted on the Internet at: http://www.digitaljournal.com/pr/1811847#ixzz2xJbx7vyV

James Beyer, Esq., writing in NYMUNIBLOB, has posted an article entitled Will Sex in School Decision Impact Teacher Discipline Process? in which he addresses a number of implications flowing from these ruling. Mr. Beyer's article is posted on the Internet at: http://nymuniblog.com/will-sex-in-school-decision-impact-teacher-discipline-process/

FindLaw has posted an article about a California case challenging teacher job protection laws in which it was alleged that "incompetent teachers in California are holding back poor and minority children." The decision could affect the way public school teachers are currently hired and terminated in the most populous state in the United States. The item is posted on the Internet at:
.
.

Friday, March 28, 2014

Individual declared ineligible for unemployment insurance benefits after failing to obtain a required license


Individual declared ineligible for unemployment insurance benefits after failing to obtain a required license
2014 NY Slip Op 01802, Appellate Division, Third Department

A former school teacher [Claimant] was found ineligible for unemployment insurance benefits. The Unemployment Insurance Appeals Board determined that Claimant voluntarily left his employment without good cause.

Claimant had been informed by his employer that he was required to obtain a Master's degree in education in order to be properly certified and be continued in his employment.

Although Claimant had been given three extensions of the deadline to meet this requirement, he failed to complete the degree at an accredited school before the expiration of the time allotted. Accordingly, Claimant’s employer terminated the employment due to lack of a valid teaching certificate.

Claimant challenged the Unemployment Insurance Appeals Board’s determination that he had voluntarily left his employment without good cause and he was charged with a “recoverable overpayment” based on the unemployment insurance benefits he had earlier been given.

The Appellate Division sustained the Board’s ruling, finding that the record established that Claimant had sufficient time to obtain the Master's degree from an accredited school prior to the deadline set by the employer. Finding that Claimant failed to take reasonable steps to protect his continuation in employment, the court ruled that substantial evidence supported the decision of the Unemployment Insurance Appeal Board that Claimant had voluntarily separated from his employment without good cause.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01802.htm
.

Thursday, March 27, 2014

Unless the collective bargaining agreement specifically so provides, the contract grievance procedure set out in the agreement is not available to a retiree


Unless the collective bargaining agreement specifically so provides, the contract grievance procedure set out in the agreement is not available to a retiree
2014 NY Slip Op 01845, Appellate Division, Fourth Department

A retired employee [Retiree] of the Village [Village] commenced this breach of contract action seeking to compel Village to pay 80% of his health insurance plan premiums, alleging that Village had paid him that percentage pursuant to the terms of a collective bargaining agreement (CBA) between the Village and the union when he was an active employee.

Village moved to dismiss Retiree’s complaint on the ground that the grievance procedure provided for in the CBA was the exclusive procedure by which Retiree could seek redress and that he was required to bring his claim through the grievance procedure despite his status as a retiree. Retiree opposed Village's motion, arguing that the CBA restricted the class of individuals who could file a grievance to active employees.

Supreme Court ruled that the language of the CBA contained no such restriction and granted Village's motion. The Appellate Division disagreed, concluding that Supreme Court erred in interpreting the CBA, and reinstated Retiree’s complaint.

The Appellate Division explained that except when the CBA provides otherwise, is well settled that an active employee may not invoke a grievance procedure set out in a CBA as an individual but must proceed, through the union, in accordance with the contract."*

Here, however, the complaining party is a retiree rather than an active employee. The court noted that the CBA uses the word "member" is used interchangeably with the word "employee," and several CBA provisions that apply to "members," such as provisions for holiday pay and annual physicals, clearly affect only active employees. Further, said the court, the CBA provides that Village recognizes the union "as the exclusive representative for collective negotiations with respect to salaries, wages, and other terms and conditions of employment of all full-time and part-time employees" (emphasis in the decision).

Giving the word "member" its plain meaning, and interpreting the contract as a whole, the Appellate Division said that it agreed with Retiree that the word "member" means a member of the union. It is undisputed that Retiree ceased to be a member of the union in the collective bargaining unit upon his retirement. According, said the court, the clear and unambiguous terms of the CBA meant that Retiree, who was no longer a "member" of the union when he became aggrieved, could not file a grievance.

Citing Matter of DeRosa v Dyster, 90 AD3d 1470, a case in which the collective bargaining agreement expressly permitted "grievances concerning retirement benefits" and expressly provided for health insurance benefits after retirement, the majority of DeRosa court held that because only an individual "employee" could file a grievance, DeRosa, a retired employee of City of Niagara Falls, could not have filed a grievance before commencing a CPLR Article 78 proceeding. 

The Appellate Division stated that fact that the CBA expressly provides for health insurance benefits after retirement does not necessarily mean that an individual retiree will be permitted to use the grievance procedure to enforce those provisions. In Retiree’s case, as in DeRosa, “the clear and unambiguous terms of the CBA prevented plaintiff from filing a grievance.”

* Other such exception recognized by the courts include: [1] a retiree may initiate a grievance in the event the act or omission complained of arose while he or she was an active employee; and [2] an employee may initiate the contract grievance procedure "when the union fails in its duty of fair representation" but, as a condition precedent to so doing, the employee must allege and prove that the union breached its duty to provide fair representation to the individual.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01845.htm
.

Wednesday, March 26, 2014

Substantial evidence that police officer is able to perform the duties of his or her position precludes granting the individual General Municipal Law §207-c benefits


Substantial evidence that police officer is able to perform the duties of his or her position precludes granting the individual General Municipal Law §207-c benefits
2014 NY Slip Op 01883, Appellate Division, Fourth Department

A municipal police officer was injured while on duty and received General Municipal Law §207-c benefits*for a period of time. Those benefits were discontinued when the officer returned to work in a light-duty capacity. Returning to full duty later in the year, in January 2012, the officer stopped working and sought to resume receiving §207-c benefits.

A hearing was held and the Hearing Officer determined that the police officer could perform the duties of a police officer and denied his application for §207-c benefits.

The appointing authority adopted the Hearing Officer’s findings and determination. The police officer sued, seeking a court order annulling the appointing authority’s determination that he was not entitled to §207-c benefits.

The Appellate Division, finding that the Hearing Officer's determination that the police officer was able to perform his regular duties was supported by substantial evidence, affirmed the employer’s determination and dismissed the officer’s appeal.

* §207-c. of the General Municipal Law provides for the payment of salary, wages, medical and hospital expenses of policemen and others involved in law enforcement suffering an injury or illness incurred in the performance of duties.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01883.htm
.

The Warren M. Anderson Breakfast Series Seminar’s Infrastructure Funding session is scheduled for April 8, 2014


The Warren M. Anderson Breakfast Series Seminar’s Infrastructure Funding session is scheduled for April 8, 2014
Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on April 8 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

The speakers
 
 ●Hon. FĂ©lix Ortiz, NYS Assemblymember & Sponsor, The Urban Restoration Bond Act of 2014

Hon. Kathy Sheehan, Mayor, City of Albany

Michael J. Elmendorf II, President & CEO, Associated General Contractors of NYS

Denis Hughes, Senior Advisor, Brown & Weinraub PLLC & Former President, NYS AFL-CIO
 
will discuss Infrastructure Funding required for costly, yet essential repairs to aging roads and bridges, water supply systems and drainage. 

Pending legislation would allow the state to borrow $2 billion for infrastructure improvements.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329.

Tuesday, March 25, 2014

Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer


Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer
Application for removal of the President and Member at Large of a school board. Decisions of the Commissioner of Education, Decision 16,594

The Commissioner never reached the merit of Petitioner's application seeking the removal of the President and member of the school board alleging that the individual was guilty of neglecting her duties, willfully violating the law on various; violating board policies concerning the conduct of board meetings and the supervision, management, and implementation of district business, including staffing, contractual matters, and legal obligations as well violating the Open Meetings Law and breaching her fiduciary duties to the school district. Finding that  Petitioner failed to satisfy certain procedural requirements, the Commissioner dismissed Petitioner's application.

Among the procedural omissions commented on by the Commissioner were the following:

1. An application must be timely filed as an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act [or omission] complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16). The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1)

2. A removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurredmore than 30 days before the application was instituted.*

3. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner, citing 8 NYCRR §276.5. The Commissioner explained that although this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent that are otherwise untimely.

4. The Commissioner will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the application.

5. The late filing of memoranda of law may be permitted by the Commissioner, in his sole discretion, upon written application setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal (see 8 NYCRR §276.4[a]).

6. Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office (8 NYCRR §277.1[b]) and the failure to comply with §277.1(b) is a fatally defective and does not secure jurisdiction over the intended respondent.** The Commissioner noted that the Petitioner used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310, explaining that the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal of the application. 

7. In the event the petitioner claims that his or her petition is timely because the respondent’s conduct constitutes a continuing wrong, the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful the employment of an unqualified individual or certain ongoing expenditures under an austerity budget that did not comply with the law.

8. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief (8 NYCRR §275.10)

One issue, however, was addressed relevant to this application was considered on the merits -- the Respondent’s request that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1).

The Commissioner, noting that such certification is solely for the purpose of authorizing a school board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member, explained that it is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith.

The Commissioner granted the Respondent's request in view of the fact the application in this instance was denied on procedural grounds and there has been no finding that the Respondent acted in bad faith, indicating that he did so solely because, for the purpose of Education Law §3811(1), respondent “appears to have acted in good faith.”

* Here petitioner asserted that his delay should be excused because he “wanted to give an opportunity for Respondent to resign in light of” his  allegations. However, the petitioner must establish to the satisfaction of the Commissioner that there was “good cause for [the] delay.”
 
** The Commissioner noted that the applicant used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310.

The decision is posted on the Internet at:
.

Monday, March 24, 2014

Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement


Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement
Civil Serv. Employees Assn., Inc. v Nassau Health Care Corp., 2014 NY Slip Op 01704, Appellate Division, Second Department

CSEA alleged that Nassau Health Care Corporation [NHCC] had violated the terms of a collective bargaining agreement [CBA] when it deemed certain employees reinstated to their former positions as "new" employees for purposes of determining their eligibility for health benefits, their seniority status, and their rate of leave accruals.*

NHCC and CSEA proceeded to nonbinding arbitration. The arbitrator issued an advisory award sustaining CSEA’s grievances. NHCC rejected the advisory award and CSEA sued, alleging breach of contract and sought declaratory relief and a court order directing NHCC to compensate the employees for expenses incurred by reason of such alleged violations. Supreme Court granted CSEA’s motion for summary judgment and NHCC appealed.

The Appellate Division modified the Supreme Court’s order, finding that NHCC had not violated the CBA with respect to its conduct towards former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

The court said that the CBA was clear and unambiguous with respect to treatment of those former employees reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

In contrast, the Appellate Division held that the CBA was not clear and was ambiguous with respect to those employees reinstated to a full-time position after one year or more after the interruption of their full-time employment with NHCC but less than a full year interrupted full-time service when periods of part-time employment were taken into account. Resolution of the ambiguity, said the court, is for the “trier of the fact,” remanding this issue to Supreme Court for its further consideration.

The court explained that "When a contract, read as a whole to determine its purpose and intent, plainly manifests the intent of the parties, relief may be granted by way of summary judgment.… Where, however, the contractual provision relied upon is ambiguous, the resolution of the ambiguity is for the trier of fact” to resolve.

Here, said the court, the CBA was clear and unambiguous with respect to treatment of former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period of their layoff. NHCC demonstrated prima facie that these employees were treated in conformity with those contractual provisions said the Appellate Division.

Thus the Appellate Division ruled that Supreme Court was incorrect in denying NHCC's motion for summary judgment declaring that it did not violate the CBA with respect to its treatment of employee absent from full time employment for one year or longer without having had any intervening part-time employment with NHCC.

The Appellate Division held that the CBA was not so clear and unambiguous with respect to NHCC's treatment of employees reinstated to a full-time position one year or more after being laid-off  but who had been employed by NHCC part-time during their absence following their laid-off.

Accordingly, the Appellate Division held that Supreme Court properly denied NHCC's motion seeking summary judgment in its favor with respect to employee having intervening part-time employment with NHCC but erred in granting CSEA's motion for summary judgment with respect to these employees. The issue was remitted to the Supreme Court for further proceedings with respect to those individuals employed by NHCC on a part-time basis during while absent from full-time employment by NHCC for one year or longer.

* The Appellate Division distinguished between to groups of employee: one group consisted of employees absent from their full time employment for more than one year and a second group of employees consisting of employees absent from their full time employment for more than one year but who had been employed by NHCC on a part-time basis during their absence from full-time employment with NHCC.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01704.htm
.

Saturday, March 22, 2014

2014 editions of electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:


2014 editions of electronic books [e-books] focusing on New York State and Municipal Public Personnel Law now available:

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

Friday, March 21, 2014

Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct


Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct
2014 NY Slip Op 01813, Appellate Division, First Department
2014 NY Slip Op 01814, Appellate Division, First Department

In both of these cases tenured teachers were terminated after a disciplinary arbitrator found them guilty of allegedly "engaging in what appeared to be sexually inappropriate behavior with a colleague" while on school property in an “unofficial capacity.”

Supreme Court sustained the arbitrator’s findings of misconduct but remanded the matter for a new hearing and the imposition of a lesser penalty. The Appellate Division, however, modified the Supreme Court’s decision “on the law” by [1] reinstating the findings of misconduct but vacated that part of the order directing a new hearing and [2] remanding the matter for the imposition of a lesser penalties.

Explaining that where the parties are subjected to compulsory arbitration, the arbitration award must be "in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78." Further said the court, “[a] hearing officer's determinations of credibility, however, are largely unreviewable because the hearing officer observed the witnesses and was able to perceive the inflections, the pauses, the glances and gestures - all the nuances of speech and manner that combine to form an impression of either candor or deception."

The Appellate Division found that Supreme Court “erred in substituting its judgment” for that of the hearing officer and the arbitrator's findings of misconduct “was supported by adequate evidence.”
 
The court, however, agreed with Supreme Court that the penalty of termination of employment was shockingly disproportionate to the misconduct of the respective employees. A result is shocking to one's sense of fairness, said the court, “if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals.” 

Another consideration in fixing an appropriate penalty: would be the prospect of deterrence of the individual or of others in like situations.

Before the incident, the court noted, the teachers involved had made many positive contributions to the school and had an unblemished disciplinary records.

Among the circumstances that could serve in mitigating the disciplinary penalty imposed on an employee, in this instance termination, cited by the court were the following:

1. The employee’s actions were not premeditated and the employee had a spotless record for five years.

2. The employee’s behavior demonstrated a lapse in judgment in the absence of evidence that the incident was anything but a one-time mistake.

3. That, with respect to an educator, the conduct did not involve some form of romantic involvement or other inappropriate conduct with a student, but rather appeared to be consensual sexual conduct with an adult colleague that was not in and of itself either criminal or otherwise improper.

4. The absence of any indication in the record that the educator's conduct will affect his or her ability to teach or that he or she intended to inflict any damage on any student.

5. The tenured educator had an unblemished disciplinary record and consistently satisfactory performance ratings.

The Appellate Division, in remanding the matter for the imposition of lesser penalties, commented that “While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination.”

N.B. James Beyer, Esq., writing in NYMUNIBLOB, has posted an article entitled Will Sex in School Decision Impact Teacher Discipline Process? in which he addresses a number of implications flowing from these ruling.
.
Mr. Beyer's article is posted on the Internet at:http://nymuniblog.com/will-sex-in-school-decision-impact-teacher-discipline-process/

The decisions are posted on the Internet at:
and

.

Thursday, March 20, 2014

Guidelines considered by the Commissioner of Education when adjudicating an application seeking the removal of a member of a board of education or a school officer


Guidelines considered by the Commissioner of Education when adjudicating an application seeking the removal of a member of a board of education or a school officer
Decisions of the Commissioner of Education, Decision 16,593

In considering this application seeking the removal of certain members of the school district’s board of education, the Commissioner first recited the litigation and other procedures over a number of years in which the parties to this application were involved and noted that “the history of dissention and conflict” affecting the school district is well documented by the numerous legal actions in recent years involving the district.

In the words of the Commissioner: “The record before me illustrates all too well how conflict and an atmosphere of this nature can interfere with the board’s ability to govern the affairs of the district and can undermine the public’s confidence in its elected school board. I strongly urge respondents and the board to engage in constructive discussions – not only as a board, but also with district staff and the community – aimed at eliminating conflict and achieving the best possible governance of the school district.”

After addressing a number of procedural matters, the Commission turned to the merits of the application in which it was alleged that conflicts of interest involving certain members of the school board had surfaced in the course of a board meeting and sought the removal of the board members.

In adjudicating an application seeking to remove a member of a board of education or a school officer the Commissioner noted the following criteria:

1. A member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

2. In an application for removal of a member of a board of education or a school officer brought pursuant to Education Law §306, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. *

3. Pursuant to §277.1(a) of the Commissioner’s regulations, the application “must distinctly state the willful violation of law, neglect of duty, or willful disobedience
of a decision, order or regulation of the commissioner charged against the officer....”

The petition submitted to the Commissioner seeking the removal of the board members alleged only that the named individuals violated board bylaws and policies, including §6110,**with respect to their conduct at a particular board meeting when they debated and voted upon various resolutions without publicly disclosing their alleged interests in such resolutions.

However, said the Commissioner, “it is well settled that, even if proven, violation of a board’s bylaws or policies, by itself, does not constitute sufficient grounds for removal of a member of a board of education in a proceeding pursuant to Education Law §306.”

Here it was alleged that the conflict of interest provisions of Article 18 of the General Municipal Law were violated because the board members had friendships or personal relationships with the subjects of the resolutions voted on at the board meeting. However the Commissioner held that the petitioner failed to establish facts sufficient to warrant the removal of the board member pursuant to Education Law §306 on this basis.

The Commissioner explained that the conflict of interest provisions of the General Municipal Law***define an interest as "a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves." Further, said the Commissioner, there is no provision in the General Municipal Law that deems a board member to have an automatic interest in a contract between a friend and the district in which the board member serves. Citing Opinion of the State Comptroller No. 83-40, the Commissioner pointed out that such an interest would arise only if a board member was to derive a direct or indirect pecuniary or material benefit from the resolution.

In contrast to alleging or establishing that any board member received a pecuniary or material benefit from their actions, the petitioner “merely alleges that they had undisclosed personal relationships relating to their votes.”

Noting that the petitioner cited no authority for the proposition that a friendship or social relationship, by itself, creates a conflict of interest, the Commissioner ruled that the petitioner had failed to sustain his burden of demonstrating a clear legal right to the relief requested and denied his application to remove the board members.

* See 8 NY CRR §275.10.

** §6110(3)(e) of the district’s ethics policy, which states that a member of the board shall “publicly disclose on the official record the nature and extent of any direct or indirect financial or other interest he/she has” in a resolution before the board.

*** See General Municipal Law §800[3].

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume53/documents/d16593.pdf
.

Wednesday, March 19, 2014

The failure to serve a necessary party requires the dismissal of the proceeding


The failure to serve a necessary party requires the dismissal of the proceeding
2014 NY Slip Op 01696, Appellate Division, First Department

The Article 78 action involved an individual [Petitioner] seeking a court order annulling a decision of the New York City Civil Service Commission [CSC].

Petitioner was terminated from his employment by the New York City Department of Sanitation. CSC affirmed the Department’s decision and Petitioner appealed CSC’s ruling.

The Appellate Division sustained the Supreme Court granting CSC’s motion to dismissed Petitioner’s action, pointing out that Petitioner “concededly” failed to timely serve CSC, which was a necessary party* because CSC was the agency that made the decision challenged by Petition. The court explained that “[t]his failure to serve a necessary party required the dismissal of the proceeding,” citing Solid Waste Services, Inc. v City of New York, 29 AD3d 318 [leave to appeal denied, 7 NY3d 710].

The Appellate Division also sustained the Supreme Court declining to grant Petitioner an extension of time to perfect his appeal “notwithstanding the apparent absence of prejudice,” because of the Article 78 petition's “lack of merit.” Further, said the court, “Were we to reach the merits, under the extremely narrow scope of review applicable as [Petitioner] administratively appealed to CSC, we would find that [Petitioner} fails to demonstrate that CSC acted illegally, unconstitutionally, or in excess of its jurisdiction.”

* A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01696.htm
.

Tuesday, March 18, 2014

Suspension without pay pending employer’s disciplinary determination


Suspension without pay pending employer’s disciplinary determination
CSEA, Cortland Local v Cortland Hous. Auth., 2014 NY Slip Op 01652, Appellate Division, Third Department

In August the Cortland Housing Authority served disciplinary charges pursuant to Civil Service Law §75 against a member of the Civil Service Employees Association’s Local Housing Association Unit and suspended her without pay. As the disciplinary hearing had not been conducted within 30 days, the member was restored to the Authority’s payroll while she remained suspended from work.*

In mid-December the Local filed a demand to arbitrate the disciplinary matter involving the member. Upon receipt of the demand for arbitration the Authority removed the member from the payroll and initiated a proceeding to permanently stay arbitration.

Supreme Court granted the stay the following February but a disciplinary hearing in accordance with Civil Service Law §75 was not scheduled. In April the Local commenced this proceeding on behalf of its member seeking to restore her to the Authority’s payroll retroactive to December as no disciplinary hearing had yet been scheduled.

Supreme Court determined that the delay caused by the Local’s demand for arbitration, together with 30 days as a reasonable time thereafter within which to hold a hearing, should be charged to the member. Accordingly, the court directed that the member be restored to pay status retroactive to the following March 29th with back salary less any unemployment benefits that she may have received since that date and thereafter continuing on the payroll until the disciplinary matter is resolved.

The Authority appealed, contending that the proceeding seeking reinstatement to the payroll was premature and should not be considered ripe for review until after the Civil Service Law §75 hearing is concluded. The Appellate Division disagreed and affirmed the lower court’s determination.

The court explained that where unreasonable delay occurs in holding a disciplinary hearing and that delay is attributable in part to the public employer, an employee whose suspension without pay has exceeded 30 days may seek reinstatement to the payroll pending a final disciplinary determination by the appointing authority.

The Appellate Division also noted that “a reduction from back pay of the amount of unemployment insurance benefits received during such time is statutorily authorized” and that Supreme Court properly reduced the award by that amount, “but there was no need to further reduce the award under the circumstances.”**

The court explained that an employer's best protection against a back pay award accruing is to hold the hearing within 30 days or, if beyond 30 days, create a clear record reflecting that it is not responsible for the delay.

However, it should be noted that courts have approved the placement of an individual on leaves without pay for periods equal in length to any adjournment in the §75 hearing process requested by the employee. [See, for example, DeMarco v City of Albany, 75 AD2d 674, Amkraut v Hults, 21 AD2d 260].

* See Civil Service Law §75 [3].

** N.B. Prior to its amendment in 1984, §75.3 provided that an employee acquitted of disciplinary charges be “restored to his position with full pay less the amount of compensation which he may have earned in any other employment and any unemployment insurance benefits." In §75.3 was amended by Chapter 710 of the Laws of 1984 and no longer authorized an adjustment reflecting compensation received because of “other employment”. [See, also, §76 and §77 of the Civil Service Law.]

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01652.htm


 
===================
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.
=======================

.

Monday, March 17, 2014

Failing to take lawful action against an individual in exchange for a benefit


Failing to take lawful action against an individual in exchange for a benefit
2014 NY Slip Op 01663, Appellate Division, First Department

A New York City police officer [Officer] was terminated from his position after being found guilty of failing to take lawful police action against an individual who was driving without a license in exchange for that individual agreeing to provide a benefit to Officer, -- “installing sheetrock at [Officer’s] home.”

The Appellate Division sustained the Commissioner’s termination of Officer, noting that substantial evidence supported the determination. Further, said the court, “The penalty of termination does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The Appellate Division also considered the fact that “one of the two main witnesses relied upon by the hearing officer in reaching his conclusion had recanted his testimony” some two years later.

The Commissioner, however, had denied Officer’s request for a new hearing based on “this new evidence.” The court said that the recantation raised issues that were addressed by the Commissioner, who considered the submissions by Officer and reviewed of all the evidence.*

The Appellate Division decided that “Under the circumstances, including the sufficiency of the other evidence, the witness's recantation did not warrant a further hearing.”

* The Appellate Division, citing Douglaston Civic Assn. v Galvin, 36 NY2d 1, noted that the Commissioner’s 2013 decision denying Officer's request for a new hearing based on such “new evidence” could not reviewed in the instant proceeding as a separately brought petition was required.

The decision is posted on the Internet at:

.

Friday, March 14, 2014

Sleeping on the job


Sleeping on the job
OATH Index No. 2196/13  

The New York City Health and Hospitals Corporation (HHC) charged a hospital police officer with sleeping or assuming a sleeping position while on an eight-hour tour that began at midnight.

HHC relied on video evidence that showed police officer’s head bobbing up and down and sideways after she was assigned to the front desk. Further, the officer admitted that her head was down and she was fighting to not fall asleep.

OATH Administrative Law Judge Faye Lewis found that HHC proved the charge and recommended seven days’ suspension as the officer had no prior disciplinary record.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/13-2196.pdf

Thursday, March 13, 2014

Refusing to accept work assignments constitutes insubordination and dereliction of duty


Refusing to accept work assignments constitutes insubordination and dereliction of duty
2014 NY Slip Op 01505, Appellate Division, First Department

Supreme Court denied an Article 75 petition filed by a New York City tenured teacher [Teacher] challenging a disciplinary arbitrator’s decision to terminate Teacher and dismissed the proceeding.

The Appellate Division affirmed the lower court’s ruling, explaining that the record indicated that Teacher “without reasonable or legitimate justification, continually refused teaching assignments” during the school year.

Such conduct, said the court, constitutes "insubordination and the dereliction of duties." As the arbitrator’s finding was “supported by adequate evidence in the record,” the Appellate Division said there was no basis upon which to disturb the credibility determinations of the Hearing Officer.

As to the penalty imposed by the arbitrator, termination, the court said that it did not shock its sense of fairness in light of the extensive nature of Teacher's insubordinate conduct throughout the school year. Such insubordination, said the court required the school to hire a substitute teacher to cover Teacher’s class. Further, noted the Appellate Division, Teacher’s refusal to admit to any wrongdoing indicated a likelihood of a recurrence of such insubordinate conduct.

The Appellate Division also noted that although the arbitration award was not issued in a timely manner, Teacher was not prejudiced by the delay.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01505.htm

Wednesday, March 12, 2014

Providing a reasonable accommodation of an employee’s disability


Providing a reasonable accommodation of an employee’s disability
2014 NY Slip Op 01550, Appellate Division, First Department

An employee [Plaintiff] sued her employer contending that it had failed to provide her with a reasonable accommodation of her disability when it refused to reassign her to a particular location.

Supreme Court dismissed Plaintiff’s complaint and the Appellate Division affirmed the lower court’s ruling.

The court said that the employer had established that its refusal to agree to Plaintiff’s request to be reassigned to a certain work location did not constitute a refusal to make a reasonable accommodation of her disability.

The Appellate Division noted that there was no position available at the location Plaintiff desired, and, citing Pimentel v Citibank, N.A., 29 AD3d 141, said that in any event, "an employer is not obligated to provide the disabled employee with [an] accommodation that the employee requests or prefers."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01550.htm
.

Tuesday, March 11, 2014

Individual’s unsatisfactory annual performance rating annulled in the absence of rationally based administrative findings


Individual’s unsatisfactory annual performance rating annulled in the absence of rationally based administrative findings
2014 NY Slip Op 01501, Appellate Division, First Department

A New York City school teacher [Teacher] filed an Article 78 petition challenging the New York City Board of Education’s denial of her appeal of her unsatisfactory annual performance rating. Supreme Court granted the Board’s motion to deny the teacher’s petition and dismissed the proceeding.

The Appellate Division unanimously reversed the lower court’s decision “on the law.” It then granted Teacher’s petition and annulled the challenged unsatisfactory annual performance rating.

The court said that Board’s determination to sustain Teacher’s unsatisfactory performance rating was not rationally based on administrative findings that Teacher had acted in an insubordinate manner and refused to adhere to the directives of the principal during the school year.

In addition, the Appellate Division found that Teacher had established that the Board had violated its own rules, procedures and guidelines contained in its human resources handbook "Rating Pedagogical Staff Members" by placing certain disciplinary letters in Teacher’s personnel file which neither contained Teacher's signature acknowledging receipt of the letters nor a witness' statement attesting to Teacher's refusal to sign the documents in question..

The decision notes that neither the principal who made the allegations against Teacher nor any other witness testified at the hearing.

Under the circumstances, the Appellate Division said that remittitur to Supreme Court for service of an answer to Teacher’s petition by the Board was not warranted "as the facts have been fully presented in the parties' papers and no factual dispute remains."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01501.htm
.

Monday, March 10, 2014

Legal Ethics Webinar: Using Social Media and the Cloud


Legal Ethics Webinar: Using Social Media and the Cloud

An online Webinar focusing on ethical issues related to an attorney's use of Social Media and the Cloud in his or her practice will be offered on March 13, 2014 at Virtual LegalTech, 1:00pm - 2:00pm ET -  

Registration is complimentary -- click here to register. 

Ethics CLE will be offered for credit in New York, New Jersey and California to those viewing the Webinars at the appointed times at the Virtual LegalTech presentation on March 13, 2014.*

LegalTech notes that “Protecting Attorney Client privilege is essential to every lawyer. Now most communications are electronic but few lawyers understand how the use of Social Media and cloud computing potentially affects privilege. 

“Lawyers use of cloud computing for record retention impact all clients in eDiscovery for litigation.  This presentation will give specific advice to lawyers so they better understand Social Media and cloud computing as well as the related Cybersecurityre risks.

“Ethics topics will include: Ethical Duty to Provide Competent Representation; Duty of Confidentiality; Ethical Information Gathering; Spoilation Concerns; and Inadvertent Creation of an Attorney - Client Relationship.”


* Ethics CLE credit approval is pending in Florida and Illinois.
.

Sunday, March 09, 2014

Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:


Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book- A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://thedisciplinebook.blogspot.com/

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://nylayoff.blogspot.com/

General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on
http://section207.blogspot.com/

Saturday, March 08, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 8, 2014


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 8, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday, March 6, 2014, announced his office completed audits of:





Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday, March 6, 2014, announced his office completed audits of:





DiNapoli Announces $15 Million Investment in Northern Ireland

New York State Comptroller Thomas P. DiNapoli Tuesday, March 4, 2014, announced that the New York State Common Retirement Fund is investing $15 million (£9 million) with Northern Ireland venture capital firm Crescent Capital.


DiNapoli: Nearly $1 Million in Questionable Payments Result from Poor Monitoring by OASAS

Samaritan Village Inc., a contractor of substance abuse treatment for the Office of Alcoholism and Substance Abuse Services (OASAS), was paid nearly $1 million in inappropriate and questionable expenses over a one–year period, according to an auditreleased Monday, March 3, 2014, by State Comptroller Thomas P. DiNapoli. The questionable expenses included more than $400,000 given to clients to spend on day trips and transportation.


DiNapoli: Audits Reveal Problems with Local IDAs

Industrial Development Agencies (IDAs) in Dutchess, Greene and Putnam counties granted questionable tax incentives and failed to enforce job creation goals, according to audits released Tuesday, March 4, 2014, by State Comptroller Thomas P. DiNapoli. DiNapoli renewed his call for better accountability for IDAs and urged the State Legislature to consider his proposed IDA reform legislation.


DiNapoli Calls for Improvements to Capital Planning Process

Over the past 10 years, New York spent an estimated $81.7 billion — including tax dollars, federal aid and long–term borrowing proceeds — to support its capital program, with another $9.6 billion proposed for the upcoming fiscal year, according to a reportreleased Thursday, March 6, 2014, by State Comptroller Thomas P. DiNapoli. The report, which reviews New York’s capital spending over the past decade and plans for the coming years, concludes that reforms are needed to ensure that New York State is spending its billions of capital project dollars wisely.


State Pension Fund Makes New Commitment of $10 Million for Investments in New York Companies

New York State Comptroller Thomas P. DiNapoli announced Thursday, March 6, 2014, a $10 million commitment to venture capital firm Tribeca Venture Partners (TVP) through the New York State Common Retirement Fund’s (Fund) In–State Private Equity Program. TVP will use the funds to provide early stage venture capital funding to New York state–based companies. This is the Fund’s second commitment to TVP.


DiNapoli Statement on Special Education Provider Guilty Plea in Federal Court

New York State Comptroller Thomas P. DiNapoli Friday, March 7, 2014, issued the following statement on the guilty plea to mail fraud in federal court by Cheon Park, the owner of Bilingual SEIT & Preschool Inc., which stemmed from a referral from DiNapoli’s office.

.

Friday, March 07, 2014

Fraternization on the job


Fraternization on the job
OATH Index No. 391/14

Department of Correction (DOC) brought charges against a correction officer relating to her relationship with an inmate, the father of her children.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the officer failed to notify DOC about her pre-employment relationship with the inmate, brought her cell phone on post to speak with him, and engaged in unauthorized financial dealings and discussed official business with him.

AJJ recommended that the correction officer be termination from employment.

Other disciplinary actions taken against employees as a result of alleged fraternization on the job are posted on the internet at:

Decision 391/14 is posted on the Internet at:
http://archive.citylaw.org/oath/14_Cases/14-391.pdf
.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.