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Saturday, August 30, 2014

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Wednesday, August 27, 2014

Redacting the name of the accused employee from the decision following a disciplinary hearing

Redacting the name of the accused employee from the decision following a disciplinary hearing
OATH Index #1536/14

In the course of a disciplinary hearing the employee placed certain of his personal medical information in the hearing record. He then submitted a post-hearing request in which he asked OATH Administrative Law Judge Alessandra F. Zorgniotti “to remove his name from the [disciplinary] report and recommendation because it discusses his medical history.”

Judge Zorgniotti denied the employee’s request explaining that “Requests for redaction are generally denied where, as here, respondent placed private health matters in issue by way of a defense and the request was made after respondent placed medical documents in the record and testified about them at a hearing.”

The ALJ said that the employee’s medical information in the record concerned a medical condition, high blood pressure, which condition “did not carry much or any stigma,” and the employee had shared information about his medical condition with a number of his co-workers prior to the incident that resulted in disciplinary charges being filed against him.

Sometimes the request for “redaction” takes the form of a request for anonymity by substituting “Anonymous” for the name of the employee. Such a request was considered in connection with a §3020-a decision by the Commissioner of Education in Decisions of the Commissioner of Education #12993, an disciplinary appeal dealing with an alleged sexual relationship between a teacher and a student. The teacher asked that the Commissioner refer to her as Anonymous "to prevent public dissemination of her name and potentially injurious information the record."

The Commissioner said that there was no requirement in law that confidentiality be maintained in an appeal from a determination of a §3020-a hearing panel nor does the potential for publicity require that he substitute “Anonymous” for the teacher’s name. He said that "the large amount of publicity following the hearing does not require that [he] take any additional steps to prevent public dissemination of the teacher's name. Also denied was the request to prevent public dissemination of material in the record "to the extent that such information is subject to disclosure under the Freedom of Information Law."

In Anonymous v Mexico CSD, 162 Misc 2d 300, the issue concerned disclosure the name of an educator involved in a disciplinary action.In this instance disciplinary charges filed against a teacher were settled before a "formal final decision" was issued. In the settlement document the teacher admitted guilt to certain of the charges.

When the District indicated that it was about to disclose the terms of the settlement agreement in response to a Freedom of Information Law [FOIL] request, the teacher asked Supreme Court to restrain the District from releasing this information. Supreme Court ruled that the settlement agreement was not exempt from disclosure under FOIL and must be provided to those seeking a copy of the agreement.

However, there may be some aspects or statements set out in a disciplinary settlement agreement that could be suppressed or redacted without offending the Freedom of Information Law.

In LaRocca v Jericho UFSD, 220 AD2d 424, the settlement agreement contained references to charges that the accused individual denied or were not admitted, together with the names of certain teachers. The Appellate Division ruled that disclosure of those parts of the settlement agreement setting out charges that were denied or not admitted and, presumably, the names of "certain teachers" would constitute an unwarranted invasion of privacy within the meaning of FOIL.

Significantly, the Appellate Division said that "as a matter of public policy, the Board of Education cannot bargain away the public's right to access to public records." The court ruled that the settlement agreement or any part of it providing for confidentiality or purporting to deny the public access to the document "is unenforceable as against the pubic interest."

Tuesday, August 26, 2014

Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.

Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.
2014 NY Slip Op 05719, Appellate Division, Fourth Department

A code enforcement officer [Officer] terminated from his position sued the Town alleging that his "termination was in retaliation for his refusal to perform" unauthorized functions and for his "act[ing] as a whistle-blower in reporting" those unauthorized directives "to the Town's outside attorney and others" in violation of Civil Service Law §75-b, the public employees' whistle blower statute.* Officer contended that he was terminated after he refused to issue a stop work order when directed to do so by the Supervisor because of his belief that he "could not legally" issue a stop work order to a developer working on a project because "the developer had all of the necessary permits."

One of the issues considered by the Appellate Division was the Town’s contention that Supreme Court incorrectly denied its motion to dismiss Officer’s retaliation claim “for failure to state a cause of action.”

The Appellate Division rejected the Town’s argument concerning the alleged retaliation, explaining that Civil Service Law §75-b “prevents a public employer from … terminating a public employee because the employee discloses to a governmental body information . . . which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action."

As to the meaning of "improper governmental action," the court said that the refers to "any action by a public employer or employee, or an agent" thereof, "which is undertaken in the performance of [his or her] official duties . . . and which is in violation of any federal, state, or local law, rule or regulation," citing § 75-b [2] [a]. In this action, said the court, the governmental bodies to which disclosure may be made included “a member of a town's legislature.”

Other requirements include that an employee, prior to disclosing the information, must have "made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and . . . provide[d] the appointing authority or designee a reasonable time to take appropriate action."

Significantly, the Appellate Division noted that Officer had adequately alleged that he reasonably believed that he had been directed to perform an unlawful act and Civil Service Law §75-b does not require an actual violation of the law for an employee to subsequently allege that he or she had been terminated because he or she acted as a “whistle blower.” In such a situation the employee need have had only "a reasonable belief of a possible violation" of the law.

Construing Officer’s complaint liberally, and accepting his factual allegations and all possible favorable inferences as true, the Appellate Division concluded that Officer had “adequately alleged that he believed that he had been ordered to commit an unlawful act and that his belief was reasonable.”

* Labor Law Article 20-c, Retaliatory Action By Employers, provides similar protections to employees in the private sector.

The decision is posted on the Internet at:

Monday, August 25, 2014

Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed

Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed
OATH Index #1804/14

The employee had been charged with (1) violating department rules, (2) negligently operated his employer’s vehicle and (3) displaying "vulgar decals" in the department’s truck. Finding that the evidence did not support charges (1) and (2), OATH Administrative Law Judge recommended the department dismiss those charges filed against the employee.

However, Judge Addison sustained the charge filed against the employee that alleged that he had pinned vulgar decals to the interior of the truck and recommended that he be suspended for 15 days without pay. Noting that the employee had served a 30-day pre-hearing suspension without pay, the ALJ then recommended that [1] the employee be credited with "time served" and [2] that he be reimbursed 15-days pay of the 30-days of his pre-hearing suspension without pay.

Civil Service Law §75.3 provides, in pertinent part, that “that the time during which an officer or employee is suspended without pay may be considered as part of the penalty.”

In Bollin v City of Kingston, 89 A.D.2d 658, the penalty imposed, two months suspension without pay, in addition to the 30-day suspension when the charges were preferred, and a fine of $100, was held neither harsh nor excessive. Bollin had been charged with, and found guilty of, [1] incompetence by allowing his bus to run out of gas on five separate occasions and [2] misconduct for smoking while operating a bus.

In general, Courts have viewed the penalties authorized by Civil Service Law §75 as mutually exclusive. In Bollin, in addition to the 30-day suspension without pay during the pendency of charges, which is not viewed as a "penalty," the employee was both suspended without pay and fined. It may be that this reflects two different penalties for the two different charges filed against him, incompetence and misconduct, which were consolidated for purposes of appeal.

Further, in Figueroa v NYS Thruway Authority, 251 A.D.2d 773, the court held that multiple §75 thirty-day suspensions without pay were permitted where additional disciplinary charges were subsequently filed against the employee

A Reasonable Disciplinary Penalty Under the Circumstances - A 442+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on


Friday, August 22, 2014

An individual’s domicile and residence distinguished

An individual’s domicile and residence distinguished
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department*

A person may have only one domicile at a time but he or she may have many residences simultaneously.

From time to time, however, the term “residence” is used as a substitute for the term “domicile.” This was demonstrated in Weiss v Teachout.

Seeking to invalidate the petition designating Zephyr R. Teachout as a candidate for the office of governor, Harris Weiss alleged that Teachout did not meet the constitutional residency requirements for the office of governor.

Article IV, §2 of the State Constitution, in pertinent part, requires that an individual seeking election to the office of governor “shall have been five years next preceding the election a resident of this state” while Election Law §1-104.22 states that the term residence “shall be deemed to mean that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return."

The Appellate Division explained that as used in the Election Law, and presumably in the State Constitution, the term ‘residence' is being used to denote an individual's legal status that is more accurately described as his or her “domicile."

Crucial to the determination as to whether an individual satisfies the constitutional “residency” requirement, said the court, is that the individual manifests an intent [to reside there], coupled with physical presence without any aura of sham [see People v. O'Hara, 96 NY2d 378].**

The Appellate Division sustained Supreme Court's determination that the Weiss failed demonstrate that Teachout did not meet the constitutional residency requirements for the office of governor is warranted by the facts.

The Appellate Division held that although both the Constitution and the Election Law use the “residence,” it was five years as a “domiciliary” of New York State that was required to satisfy such “residence” requirements and the fact that Teachout had has resided in several different residences within the City of New York during the relevant time period, while maintaining close connections to her childhood domicile of Vermont, constituted “nothing more than an ambiguity in the residency calculus.”

* See, also, Jones v Blake, 2014 NY Slip Op 05919, Appellate Division, First Department, an appeal arising “out of a special proceeding in which petitioner sought to establish that respondent did not satisfy the residency requirements for the public office of Member of the Assembly.”

** In Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), [Not selected for publication in the Official Reports], Supreme Court Judge Dennis M. Kehoe held the where the record revealed that the individual elected to public office [1] rented the upstairs apartment from his wife four days before the election, for an annual rental of $1.00, for a period which extends through December 31, 2012, the date his term as Mayor expires; [2] that the furnishings of the apartment consist of one bed with a crate used as a night table, had no appliances such as a refrigerator, stove, or microwave - and no television or computer; [3] that he did not move his personal belongings to the apartment; and [4] that he regularly ate dinner with his wife and children at the residence in the Town of Sodus; and spent the majority of his nights there, he must conclude that the Allen’s attempt to establish a residence in the Village of Sodus was contrived for the purpose of making him eligible to run for the office of Mayor.” Judge Kehoe noted that he was aware of the fact that “his decision will result in an immediate vacancy in the office of the Mayor of Sodus Village, but this outcome is mandated by the Public Officers Law §30(1)(d), unless otherwise stayed by a higher court.”

The Weiss decision is posted on the Internet at:

The Village of Sodus decision is posted on the Internet at:

Thursday, August 21, 2014

Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation

Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation
Appeal of Arnold Goldberg, Decisions of the Commissioner of Education, Decision No. 16,635

Arnold Goldberg held a tenured appointment as Director of Personnel in the tenure area of  "Director of Personnel." The School Board subsequently created a new position, Assistant Superintendent for Human Resources and Professional Development, and appointed Dr. Marlene Zakierski to fill this new position  effective August 1, 2005. On August 16, 2005, the Director of Personnel position was abolished and Mr. Goldberg was "excessed" effective August 26, 2005, and his name was placed on a “preferred eligible list “

Mr. Goldberg challenged the failure of the School District to appoint him to the newly created Assistant Superintendent position.** The then Commissioner of Education issued a decision dismissing the appeal, holding that Mr. Goldberg was not entitled to an appointment to the Assistant Superintendent position.  Subsequently Supreme Court vacated the Commissioner’s decision and remanded the matter to the School District for a hearing pursuant to Education Law §3013 on the sole issue of whether or not the two positions were similar.

Following five days of hearing, the School Board issued a decision finding that “the newly created position of Assistant Superintendent for Human Resources and Professional Development was not similar to [Mr. Goldberg’s] position of Director of Personnel,” whereupon Mr. Goldberg initiated a second CPLR Article 78 proceeding against the School District seeking to set aside the School District’s decision.  Supreme Court, however, ruled that the Commissioner of Education has primary jurisdiction over this matter and Mr. Goldberg initiated the instant appeal with the Commissioner of Education.

Mr. Goldberg asserted that more than 50 percent of the duties he performed as Director of Personnel were being performed by the incumbent of the newly created position of Assistant Superintendent* and thus, he argued, he should have been appointed to the position pursuant to Education Law §3013 and asked that the Commissioner set aside the School District’s decision that the two position were not similar “as arbitrary and capricious” and direct the School District to appoint him to the Assistant Superintendent position with back pay, seniority and all other benefits. 

The Commissioner ruled that Mr. Goldberg’s appeal concerning “the district’s failure to recall him from the preferred eligibility list” had to be dismissed for failure to join a necessary party. The Commissioner noted that although Mr. Goldberg named “Ronald O. Grotsky” as a respondent in the caption of his appeal, the record indicates that Marlene Zakierski had been appointed by School Board to the Assistant Superintendent position. As Dr.Zakierski’s rights could be adversely affected were the decision in this appeal in Mr. Goldberg’s favor because “she was not named or served with a notice of petition or petition,” he “must dismiss the appeal for failure to join necessary parties.”

Further, the Commissioner said that Mr. Goldberg failed to meet his burden of demonstrating that he was entitled to the Assistant Superintendent position.

In order for an individual to be entitled to appointment to a vacant position from a preferred list, explained the Commissioner, the position must be similar to that of his or her former position. The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by individual in his or her former position and the two positions must be in the same tenure area.

Based on the record before him, the Commissioner said that he found that the two positions were in different tenure areas, noting that the School Board had approved the probationary appointment of an individual to an Assistant Superintendent position in the tenure area of “Assistant Superintendent of Human Resources and Professional Development" while Mr. Goldberg had been granted tenure in the administrative tenure area of “Director of Personnel.”

The Commissioner also noted that “even if the two positions were in the same tenure area, the appeal must be dismissed because a review of the job descriptions for both positions and the record before him “reveals that, within the meaning of Education Law §2510(3), [Mr. Goldberg’s] position as Director of Personnel was not similar to the position of Assistant Superintendent for Human Resources and Professional Development.”

The Commissioner then dismissed Mr. Goldberg's appeal.

* Mr. Goldberg also asserted that the hearing provided by the School Board did not meet the due process requirements of the Fifth and Fourteenth Amendments of the United States Constitution and, in addition, he alleged several violations of the Open Meetings Law and the Freedom of Information Law. The Commissioner rejected Mr. Goldberg’s due process claims and with respect to his Open Meetings Law and Freedom of Information claims noted that New York State Supreme Court has exclusive jurisdiction with respect to adjudicating such claims and any “alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

** The test applied is whether 50% or more of the duties being performed by the incumbent of the newly created position were previously being performed by the incumbent of the position that had been abolished not whether 50% or more of the duties of the abolished position were being performed by the incumbent of the new position. For example, the incumbent of the new position could have assumed all of the duties of the abolished position yet those duties could be less than 50% of all of the duties assigned to the incumbent of the new position.

The Commissioner’s decision is posted on the Internet at:


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

Wednesday, August 20, 2014

Limiting access to sensitive electronic databases

Limiting access to sensitive electronic databases 

Source: Office of New York State’s Comptroller Thomas P. DiNapoli

Concerned with access to sensitive materials contained in an electronic database, State Comptroller Thomas P. DiNapoli's auditors found that employees in six upstate New York school districts had inappropriate computer access to sensitive student data and were able to change student grades and attendance records without proper authorization.*

The Comptroller said that “Student academic and personal information must be protected by school districts. Each of the districts identified in this audit should take the simple and immediate steps necessary to improve their controls over personal, private and sensitive information. In the meantime, I have directed my audit division to expand the scope of this audit and begin examining school districts from every region of the state.”

The school districts reviewed were: Altmar-Parish-Williamstown Central School District, Indian River Central School District, Lowville Academy and Central School District, Madison Central School District, Poland Central School District and Westhill Central School District.

DiNapoli’s audit revealed that several school computer system users in each district had access to functions that were beyond their job duties or outside the scope of their responsibility. Auditors found that users in multiple school districts, including outside vendors, were able to make grade changes without proper documentation or authorization.

Auditors also found:

Four of the six districts had features within their computer system that allowed users to assume the identity or the account of other users as well as inherit increased rights or permissions;

Two districts continued to use accounts of former employees in order to make changes to more than 200 attendance records;

One district allowed generic users to view student individualized education programs; and

Only one district, Altmar-Parish-Williamstown, reviewed non-instructional staff user rights to ensure they were appropriate.

DiNapoli recommended each school district take immediate steps* to:

> Establish written policies and procedures for student information system administration including a formal authorization process to add, deactivate or change user accounts and rights and procedures for monitoring user access;

> Ensure that individuals are assigned only those access rights needed to perform their job duties;

> Evaluate user rights and permissions currently assigned to each student information system user, including outside employees and vendors, and ensure that rights are updated as needed to properly restrict access;

> Restrict the ability to make grade changes and ensure that documentation is retained to show who authorized the grade change and the reason for the change;

> Remove all unknown/generic or shared student information system accounts and deactivate the accounts of any users who are no longer employed; and

> Periodically review available audit logs for unusual or inappropriate activity.

The letters sent by the Comptroller’s office to each school district have been posted on the Internet at:

School district officials generally agreed with the audit, but some provided clarification on their policies and identified improvements they have already made. Their responses are included in the final report posted on the Internet at:

* See an audit released by New York State Comptroller Thomas P. DiNapoli.on August 19, 2014.

** These guidelines could be relevant and could be considered by other government departments and agencies in order to review their existing procedures and establishing a formal authorization process to add, deactivate or change user accounts and procedures for monitoring user access to agency computer systems electronically to the extent that they are not already in place.

Tuesday, August 19, 2014

Tampering with a public record

Tampering with a public record
OATH Index No. 1297/14

The employer alleged that its project manager, without authorization, altered two work orders signed by his supervisor. He then e-mailed the orders to the contractor despite the fact that they had not be signed by the supervisor.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the employee had  knowingly made false entries on a written statement of a public servant, and that he had tampered with a public record.

Judge Zorgniotti also found that the employee had emailed the altered documents to the contractor without copying his supervisor as directed.

The penalty the ALJ recommended, termination of the individual, was adopted by the appointing authority.

Monday, August 18, 2014

Threatening to use administrative authority

Threatening to use administrative authority

In an Associated Press news item dated August 16, 2014 by Paul J. Weber and Will Weissert concerning the indictment of Texas Governor Rick Perry by a grand jury for allegedly “abusing the powers of his office by carrying out a threat to veto funding for state prosecutors investigating public corruption” the article states that “No one disputes that Perry is allowed to veto measures approved by the Legislature, including part or all of the state budget. But [a] government watchdog group filed an ethics complaint accusing the governor of coercion because he threatened to use his veto before actually doing so in an attempt to pressure [Travis County, Texas, District Attorney Rosemary] Lehmberg to quit.”

As to the allegation of coercion by a public officer, is it coercion for an appointing authority to threaten an employee with disciplinary action if he or she does not immediately submit his or her resignation from his or her position?

In Rychlick v Coughlin, 63 NY2d 643, the employee was told that if he did not submit his resignation immediately he would be served with disciplinary charges. A few days later Rychlick asked to withdraw the resignation* claiming that he had been "forced" to submit it. When his request was denied, Rychlick sued, claiming his resignation had been obtained under duress and thus was void.

The Court of Appeals disagreed with Rychlick’s claim of coercion, pointing out that threatening to do what the appointing authority had a right to do – in this instance filing disciplinary charges -- did not constitute coercion so as to make Rychlick’s resignation involuntary.

In contrast to having been threatened with disciplinary action if he or she did not submit the resignation demanded by the appointing authority, from time to time an employee will allege that resignation submitted was not voluntary but, in fact, constituted a “constructive dismissal.” In order to maintain an action for constructive dismissal, however, the plaintiff must show that his or her employer deliberately made working conditions so intolerable that he or she was forced into submitting the resignation.

* The rules of the New York State Civil Service Commission, which apply to employees of the State as the employer, provide that "every resignation shall be in writing" [4 NYCRR 5.3(a)] while 4 NYCRR 5.3(c) provides that a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority. Many local civil service commissions and personnel officers have adopted similar rules concerning resignations of employees subject to their respective jurisdictions.

Friday, August 15, 2014

Contingent permanent appointments

Contingent permanent appointments
Cruz v New York State Unified Ct. Sys., 2014 NY Slip Op 05640, Appellate Division, Second Department

Two employees of the New York State Unified Court System and New York State Office of Court Administration, John Ferguson and Jocelyn Cruz, were removed from their positions of employment that they held pursuant to a “contingent permanent appointment."

Ferguson had received a notice that he was going to be displaced from his position and replaced by someone on a preferred list and reinstated to a lower-titled permanent position. Cruz had received a similar notice. Ferguson and Cruz brought an Article 78 action challenging their displacement from their contingent permanent positions.

The Appellate Division, noting that “The Chief Judge has plenary Constitutional authority over the administration of the UCS” said that Chief Judge had the authority to establish statewide standards and administrative policies concerning nonjudicial personnel, including job classifications and removal, provided that the standards and policies "shall be consistent with the civil service law."

As to contingent permanent appointments, the court explained that:

“Under the rules promulgated by the Chief Judge, positions left temporarily vacant by the leave of absence of the permanent incumbent may be filled on a contingent permanent basis, (see 22 NYCRR 25.24[a],[d]). When the permanent incumbent's encumbrance on the position, i.e., his or her right to return to that position, expires due to the attainment by the permanent incumbent of nonprobationary, permanent status in a higher title (see 22 NYCRR 25.22[d], 25.24[b][1]), the position then held by the contingent permanent appointee becomes permanently vacant and subject to being permanently filled pursuant to the Rules of the Chief Judge (see 22 NYCRR 25.24[b][8], 25.31[a][1]). The Rules of the Chief Judge require that such a permanent vacancy be filled first by reference to an applicable preferred list (see 22 NYCRR 25.24[c], 25.31[a][1]). The Chief Administrator of the Courts is required to establish statewide preferred lists of the names of those persons who have been demoted or suspended, including those who were demoted or suspended by virtue of a workforce reduction in June 2011 (see 22 NYCRR 25.31[a][1]).”*

If, said the court, ”no preferred list exists for a particular position, then any permanent vacancy in that position is to be filled in accordance with 22 NYCRR 25.24(b)(8), which provides for the selection 'of one of such employees of the promotion unit having such contingent permanent status in such position or a similar position,' provided that, if the eligible list from which the employee acquired the contingent permanent position is still in existence, the employee is then eligible for permanent appointment or promotion from such list.”

Accordingly, the Appellate Division ruled that "the contingent permanent appointments held by Ferguson and Cruz did not mature into permanent appointments by virtue of their completion of probation or the positions becoming unencumbered. Moreover, the use of statewide preferred lists to fill permanently vacant positions is not arbitrary and capricious, even where such use results in the displacement of contingent permanent appointees who were not themselves subject to the workforce reduction.”

The court found that UCS's actions with regard to Ferguson were in compliance with the Rules of the Chief Judge, as the expiration of the permanent incumbent's encumbrance created a permanent vacancy subject to being lawfully filled.

As to Cruz, the Appellate Division noted that UCS conceded that the termination notice had been sent to her in error "since the relevant employment position had not yet become unencumbered, and since application of the Rules of the Chief Judge might indeed result in her permanent appointment." Thus, said the court, Supreme Court properly granted that branch of the petition which was to annul the determination displacing Cruz from her position of employment but Supreme Court erred in permanently enjoining her displacement from the position as Cruz holds her position on a contingent permanent basis, explaining that the record reveals that, during the pendency of this proceeding, the position held by Cruz became unencumbered, and no preferred list exists for the position, “the position must be filled permanently from the existing regular eligible list, in accordance with 22 NYCRR 25.24(b)(8).”

The Rules of Civil Service Commission addressing contingent permanent appointments for employees in the Classified Service of the State as the employer differ from the Rules of the Chief Judge of the State of New York addressing contingent permanent appointments applicable to employees of the Office of Court Administration.

Typically a temporary appointment**is made to a position temporarily vacant or to a position that is not expected to be continued for any extended period of time as generally set out in subdivisions 1, 2 and 3 of  §64 of the Civil Service Law and except as authorized by subdivision 4 of. §64, a temporary appointment cannot mature into “tenure” status. 

Under the Commission’s Rules, however, in the event the appointing authority affirmatively designates the appointment of an individual to a temporary vacancy as a “contingent permanent appointment,” this  “special form of temporary appointment” provides the appointee with many of the benefits that flow from being permanently appointed to the position. 

To effect a permanent contingent appointment, (1) the appointing authority must specifically act to provide for such a “contingent permanent” appointment*** and (2) the appointee must otherwise satisfy the mandates of §61 of the Civil Service Law with respect to permanent appointment to a position in the Classified Service of the State as the employer. Further, a tenured employee may not be reassigned to an encumbered position "unless the employee agrees, in writing, to accept a contingent permanent appointment to such position.” A CPE attains tenure in the title upon his or her being continued in the position beyond maximum period of probation for the title.

As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, a temporary appointee, even if otherwise eligible for appointment as a contingent permanent employee [CPE] pursuant to Section 64.4, must be appointed specifically as a CPE by the appointing authority, “which status is granted solely at the discretion of the appointing authority and requires that the appointee otherwise satisfies the mandates of §61 of the Civil Service Law."

The New York State Department of Civil Service Career Mobility Office describes a contingent permanent appointment  as follows: “A permanent appointment or promotion to a position left temporarily vacant by the leave of absence of the permanent incumbent of the position; such appointees have the same rights as permanent appointees; a contingent permanent employee may be displaced by the return of the permanent incumbent. (The term contingent permanent is not used in the Civil Service Law or Rules; rather, rule 4.11 refers to "permanent appointments to encumbered positions.") .”

In the event a CPE is to be removed from his or her position upon the permanent incumbent of the position being filled by a CPE upon his or her reinstatement to the position, the CPE shall [1] displace any temporary or provisional employee serving in the same title and work location under the jurisdiction of the same appointing authority; or [2] displace the CPE with the most recent contingent permanent appointment date serving in the same title and work location under the jurisdiction of the same appointing authority or [3] the CPE is to be reinstated to the position from which he or she is on leave, if any, and his or her name is placed on the appropriate reemployment list or roster for the title he or she formerly held on a contingent permanent basis, as the case may be.:

A displaced CPE may request the Civil Service Department to restore his or her name to the eligible list or reemployment roster, if any, from which the contingent permanent appointment was made, if such list or roster is still in existence at the time the request if made.

If a position with same title and work location, and under the jurisdiction of the same appointing authority, becomes vacant, the CPE having the earliest date of contingent permanent appointment willing to accept such appointment is to be permanently appointed to the vacancy should the appointing authority elect to fill the vacancy.

Essentially the Commission’s Rules provide as follows with respect to the status of a CPE having tenure in the title:

1. The CPE may request that his or her name be restored to the eligible list or reemployment roster, if any, from which his or her contingent permanent appointment was made, if such list or roster is still in existence.

2. Should a position with same title and work location, and under the jurisdiction of the same appointing authority, becomes vacant, the CPE having the earliest date of contingent permanent appointment is to be permanently appointed to the vacancy in the event the appointing authority elects to fill the vacancy.

3. In the event the CPE is retained beyond the maximum period of probation set for the position, he or she attains tenure in the title and is subject to removal from the position as required by, and in accordance with, the Rules upon the reinstatement of the permanent incumbent to the position; the abolishment of the position in accordance with relevant provisions of the Civil Service Law; or terminated for cause in accordance with the controlling disciplinary procedure.

* Section 25.24 Contingent permanent appointments of the Rules of the Chief Judge,. is set out on the Internet at   

** A temporary appointment is made to an encumbered position and is distinguished from a “provisional appointment” made pursuant to §65 of the Civil Service Law to a wholly vacant position.

*** As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, a temporary appointee, even if otherwise eligible for appointment as a contingent permanent employee [CPE] pursuant to Section 64.4, must be appointed specifically as a CPE by the appointing authority, “which status is granted solely at the discretion of the appointing authority and requires that the appointee otherwise satisfies the mandates of §61 of the Civil Service Law. 


Thursday, August 14, 2014

Transcribing the hearing in a disciplinary arbitration proceeding

Transcribing the hearing in a disciplinary arbitration proceeding
2014 NY Slip Op 05700, Appellate Division, First Department

In this CPLR Article 75 action Supreme Court’s confirmed the arbitrator’s decision imposing the penalty of termination on an employee [Employee] of the New York City Transit Authority [NYCTA].

Responding to Employee’s appeal, the Appellate Division considered a relatively common issue: “Was the penalty imposed by the arbitrator reasonable?” and an issue less commonly encountered:: "Was a transcript of the hearing in the disciplinary arbitration required?"

Addressing the need to make a transcript of the hearing, the Appellate Division said although it was “troubled by the lack of a transcript to review the record of the arbitration proceeding,” it found no basis to disturb the arbitrator's credibility findings.

Absent a provision in a collective bargaining agreement requiring that the disciplinary hearing be transcribed, having a transcription of an arbitration hearing taken by a hearing reporter is rare.* As the court noted in Jordan v Human Resources Admin. City of New York, 78 AD3d 947, the lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award. The Appellate Division ruled that Jordan failed to establish any grounds for vacating the arbitration award and that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”

In Rhinestone v NYCTA, 142 A.D.2d 562, the court noted that “A collective bargaining agreement between the [Rhinestone’s] union and the appellant New York City Transit Authority … provides that employee disciplinary grievances shall be resolved by a four-step grievance procedure, the last step of which is a hearing before the contractually designated arbitrator ….” The agreement also provided that “[n]o transcript of the arbitration hearingshall be required.” At the outset of the arbitration step of a grievance filed by the [Rhinestone], [the arbitrator] ruled that, “absent the consent of the Transit Authority, he would not allow stenographic transcription of the hearing, even if [Rhinestone] were to pay for it.”

In contrast, where a disciplinary hearing is conducted pursuant to §75 of the Civil Service Law a transcript of the hearing must be made and a copy provided to the employee without charge. Indeed, in Ligreci v Honors, 162 AD2d 1010, the Appellate Division held that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing.**Further, the courts have held that the failure to include transcript of the §75 disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”

Similarly, with respect to disciplinary actions initiated pursuant to §3020-a of the Education Law, §3020-a.3.c.(D) provides as follows: “An accurate record of the proceedings shall be kept at the expense of the [Education] department at each such hearing in accordance with the regulations of the commissioner. A copy of the record of the hearings shall, upon request, be furnished without charge to the employee and the board of education involved. The department shall be authorized to utilize any new technology or such other appropriate means to transcribe or record such hearings in an accurate, reliable, efficient and cost-effective manner without any charge to the employee or board of education involved.”

As to the penalty imposed by the arbitrator on Employee, termination, the Appellate Division modified the Supreme Court’s confirmation the arbitrator’s decision, vacating the penalty of dismissal and remanded the matter to the arbitrator “for the imposition of a lesser penalty.”

The Appellate Division said that the termination of Employee, a NYCTA bus driver for 15 years with an unblemished record of employment and who had consistently received positive performance evaluations, and had never been disciplined as the sanction “for a single, alleged transgression is grossly excessive and shocks our sense of fairness,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

The court also commented that NYCTA ignored a provision in the collective bargaining agreement between the agency and Employee's union that provided that NYCTA "shall be guided by the principle of progressive discipline in the administration of its disciplinary procedures."

* A collective bargaining agreement may include a provision addressing the making of a disciplinary hearing transcript. For example, Article 33.4(c) of the Administrative Services Unit’s collective bargaining agreement between the State and the Civil Service Employees Association, Inc., for the period 2011-2016 provides: “Unless both parties agree, the proceedings in disciplinary arbitrations should not be tape recorded. The use of transcripts is to be discouraged and the fact that a transcript is made should not extend the date the hearing is closed. The party ordering the transcript shall obtain and pay for an expedited or rush transcript. Either party wishing a transcript at a disciplinary arbitration hearing may provide for one at its own expense and shall provide a copy to the arbitrator and the other party.”

**Presumably the appointing authority did not serve as the hearing officer at the disciplinary hearing.

A Reasonable Disciplinary Penalty Under the Circumstances - A 442+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on

Wednesday, August 13, 2014

Background checks for individuals seeking to be elected or appointed as a volunteer firefighter

Background checks for individuals seeking to be elected or appointed as a volunteer firefighter 
Chapter 198 of the Laws of 2014

Governor Andrew M. Cuomo has signed legislation that prohibits an individual registered under the sex offender from being elected or appointed as a volunteer firefighter.

The measure, Chapter 198 of the Laws of 2014, requires individual fire companies to determine if a prospective volunteer member is eligible to be “elected or appointed as a volunteer  member” of the fire company if that person has been convicted of a “registerable sex offense.”

The Act amends Section 837-o of the Executive Law to read as follows “§837-o. Search for arson and sex offense conviction records of volunteer firefighter applicants” [emphasis supplied].

In addition, Chapter 198 amends subdivision 17 of §176-b of the Town Law, subdivision 19 of §10-1006 of the Village Law and §1402(c)(5) of the Not-For-Profit Corporation Law in relation to qualifications to serve as a volunteer firefighter

Further, subdivision (3) of Section 837-o of The Executive Law was amended by adding a new paragraph, paragraph (d), which paragraph reads as follows::

“If a person is denied election or appointment as a volunteer member of a fire company based in whole or in part on the fact that he or she stands convicted of a crime which requires the person to register as a sex offender under article six-C of the correction law, he or she shall be advised by the fire company of the rights to challenge and appeal the information contained in the record of conviction as provided in the rules and regulations of the division, and provided by the fire company with a copy of the criminal history record received by the fire company and with a copy of sections seven hundred fifty-two and seven hundred fifty-three of the correction law.”

Tuesday, August 12, 2014

The State University of New York’s Optional Retirement Plan

The State University of New York’s Optional Retirement Plan
Chapter 337 of the Laws of 1964 

Fifty years ago the State University of New York was faced with a dilemma. Undergoing rapid and extensive growth, it was experiencing significant difficulty in recruiting and retaining faculty and professional staff for its new and expanding campuses.

Although the compensation SUNY component units offered was competitive and it offered significant opportunities for career development, candidates proved reluctant to accept appointment to a SUNY position as the State's public retirement systems then required an individual to complete ten years of member service to vest his or her retirement benefits. The reason for such reluctance:   there was great mobility in higher education at the time. It was not unusual for faculty and other staff members to “moved-on” by accepting an appointment at another college or university after three or four years of employment at their college or university and they would lose potential retirement benefits if they were not "vested" when they left.

Colleges and universities in the private sector were not burdened with this "vesting problem" as the majority offered what was referred to as the “national retirement program” for those employed in higher education by participating in the “TIAA-CREF retirement program" offered by the Teachers Insurance and Annuity Association-College Retirement Equities Fund.[i]

In effect, each TIAA-CREF participant had a “personal” TIAA-CREF retirement contract to which the employer and the employee made contribution at rates set by the individual institution. Benefits were paid to participants upon their retirement based on the accumulated value of the “defined contributions” made by the individual and the "participating employer" over his or her  career of service, which would usually encompass employment at a number of colleges and universities. Typically a “new TIAA-CREF private sector enrollee” vested his or her benefits within two or three years of the effective date of his or her initial appointment by the college or university while an individual already having a TIAA-CREF contract in place typically vested the employer’s contributions immediately.

SUNY’s then Director of State University Personnel was assigned the task of creating a solution to the University’s recruitment and retention problem. He drafted a bill that was then enacted into law as Chapter 337 of the Laws of 1964, "The State University Optional Retirement Program," and SUNY became the first public college or university system to participate in TIAA-CRER.

Enacted as Article 8-B of the Education Law, SUNY’s Optional Retirement Program[ii][ORP] is a defined contribution retirement plan[iii] rather than the "defined benefit retirement plan" offered by New York State public retirement systems.

SUNY's ORP provided that newly appointed members of the professional staff[iv] could elect to participate in ORP or, in the alternative, elect to enroll in either the New York State Employees’ Retirement System or the New York State Teachers’ Retirement System.[v]

As to resolving the “vesting problem, §392.4 of the Education Law provides that ”At the end of his [or her] initial year of service, a single contribution in an amount determined pursuant to subdivisions one and two of this section, with interest at the rate of four percentum per annum, shall be made by the state” while subdivision 5 of §392 provides that “The provisions of subdivision four of this section shall not apply to any electing employee other than an employee appointed for a specified period of less than three months who, at the time of initial appointment, owns a contract determined by the board to be similar to those contracts to be purchased under the optional retirement program and issued by the designated insurer or insurers.”

Significantly, §396.of the Education Law provides that “Neither the state, nor state university, nor any electing employer or its local sponsor shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the state, or by state university, or by any electing employer or its local sponsor under such optional retirement program. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts.”

To complete the package, the then Director of Personnel [1] drafted legislation authorizing the State University’s “Special Annuity Program"[vi]thereby permitting eligible SUNY staff to participate in a Tax Deferred Annuity plan authorized by §403-b of the Internal Revenue Code and [2] drafted a regulation establishing  a long-term disability insurance program for TIAA-CREF participants[vii]. 

[i] TIAA is the successor to the Carnegie Foundation for the Advancement of Teaching and was created in 1918 by the New York State Legislature for the purpose of providing retirement income for college and university faculty through fixed premium guaranteed deferred annuity contracts. CREF was created in 1952 to permit TIAA participants to elect to have all or a portion of the employer's contributions and their contributions for TIAA invested in equities through CREF.

[ii] Education Law §§390-397.

[iii] Similar “optional” plans subsequently were enacted by the State Department of Education for its eligible employees [Education Department Optional Retirement Program, Article 3 Part 5 of the Education Law] and the then City University of New York for its eligible employees [Article 125-A, the Board of Higher Education Optional Retirement Program].

[iv]See Education Law §390.3

[v] When it was established in 1964 then professional employees could continue in their respective State retirement system or elect to participate in ORP. Such an individual electing ORP not yet eligible to vest his or her  State retirement benefits of the time he or she enrolled in ORP would receive "member service credit" for the purposes of vesting his or her benefits in his or her public retirement system during the period of his or her continued uninterrupted service with SUNY in ORP.

[vi] See Article 8-C of the Education Law.

[vii] See 8 NYCRR 309, State University Group Disability Insurance Program.

Monday, August 11, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 9, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 9, 2014
Click on text highlighted in color to access the full report
Department of Health (DOH) – Inappropriate Medicaid Payments for Recipients with Multiple Identification Numbers and No Social Security Numbers (Follow-Up) (2014-F-1)
An initial audit report, issued in July 2012, identified $17.3 million in Medicaid overpayment because 9,848 recipients were enrolled into Medicaid with multiple identification numbers. In a follow-up, auditors found DOH officials have made progress in correcting the problems identified in the earlier report. This included the recovery of approximately $2.7 million in Medicaid overpayment for services provided to recipients with multiple identification numbers. Of the initial report's two recommendations, one was implemented and one was partially implemented.

Metropolitan Transportation Authority Time and Attendance Practices of Selected Employees (2011-S-45)
Auditors found significant discrepancies between the time and attendance records maintained by employees of Long Island Railroad’s Richmond Hill shop when compared with their work production records for the same periods. Auditors also identified several MTA employees who work and reside in New York City during their respective work weeks who are reporting that they reside outside the city and avoiding New York City income tax.

New York State Thruway Authority – Mission Statement and Performance Measures (2013-S-9)
The authority's 2011 and 2012 mission statement and measurement reports did not provide users of the highway and canal systems with complete and accurate information about what has been achieved on their behalf. The authority did not report on five of 15 performance measures and six of the 10 measures we reviewed were not accurately reported or did not fully disclose the results of the authority's operations. The authority has not set performance and accountability goals for 13 of the 15 performance measures in quantitative terms. The authority's board has not reviewed its mission statement and performance measures annually since April 2010, as required.

Office of the Medicaid Inspector General (OMIG) – Accuracy of Reported Cost Savings (2013-S-29)
Although the audit showed the majority of the reported cost savings examined were reasonable and adequately supported, auditors also estimate OMIG overstated savings from 27 of 35 activities examined by at least $1.2 billion as a result of flaws and/or inconsistencies in the methodologies used to estimate savings. OMIG officials indicate they have taken corrective action on the methodologies for many of these 27 activities. A lack of communication among the managers responsible for the various activities contributed to these problems.

State Education Department –Tuition Reimbursement Account for the Three Fiscal Years Ended March 31, 2013 (2014-S-17)
The audited financial statements present fairly, in all material respects, the respective financial position of the Tuition Reimbursement Account as of the three fiscal years ending March 31, 2013, and the respective changes in financial position for the years then ended, in accordance with generally accepted accounting principles.


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