Wednesday, November 30, 2016

Tests applied by the courts in determining if a demand to arbitrate a grievance pursuant to the terms of a collective bargaining agreement should be granted


Tests applied by the courts in determining if a demand to arbitrate a grievance pursuant to the terms of a collective bargaining agreement should be granted
Locust Valley Central School District v Benstock, 2016 NY Slip Op 07299, Appellate Division, Second Department [Matter #1]
Locust Valley Central School District v Locust Valley Teachers' Association 2016 NY Slip Op 07299, Appellate Division, Second Department [Matter #2]

The relevant collective bargaining agreement [CBA] between Locust Valley Teachers' Association [LVTA] and the Locust Valley Central School District [School District] provided that either party had the right to submit a grievance to arbitration in the event the grievance was not resolved by the School District. The CBA defined a "grievance" as "a claimed violation, misinterpretation or inequitable application [of a] provision of th[e] Agreement."

LVTA filed a grievance against the School District concerning the School Districts commencing a plenary action* against a teacher formerly employed by the School District. The former teacher was a member of the LVTA and presumably in the collective bargaining unit represented by LVTA.

In the plenary action, the School District sought, under a "faithless servant" theory,**the forfeiture of all compensation earned by the former teacher pursuant to the CBA during a period of time in which the teacher allegedly engaged in certain criminal conduct. That conduct ultimately resulted in the teacher's plea of guilty to several criminal charges.

In an action (Matter #1) and a related proceeding pursuant to CPLR article 75 to permanently stay arbitration of a grievance (Matter #2), the School District in Matter #2 appealed from an order of the Supreme Court which denied its petition seeking a stay of arbitration and granted LVTA’s motion to compel arbitration of the grievance.

The Appellate Division affirmed the Supreme Court’s ruling in Matter #2.

The court explained that the determination of whether a dispute between a public sector employer and employee is arbitrable is subject to a two-prong test.

The court must first if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. In the event it finds no such prohibition, the court must review the relevant collective bargaining agreement between the parties and determine if they, in fact, agreed to arbitrate the particular dispute.

Citing Board of Educ. of Watertown City School Dist. [Waterman Edu. Assn.], 93 NY2d 132, the Appellate Division said that in examining the collective bargaining agreement, must "merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [agreement]." If there is such a relationship, said the Appellate Division, "the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the . . . provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them."

In determining whether a matter is arbitrable, however, the court may not "consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

Finding that the School District had not identified any statutory, constitutional, or public policy prohibition against arbitrating the grievance, the Appellate Division affirmed the Supreme Court’s decision. In the words of the Appellate Division, the fact that “the grievance concerns the right of the School District to bring a plenary action seeking the equitable forfeiture of compensation paid to the teacher under the CBA establishes “a reasonable relationship between the grievance and the CBA.”

* A lawsuit where the merits are fully investigated and discussed and the decision is not based on another lawsuit.

** The "faithless servant doctrine" states that an individual owing a duty of fidelity to a principal and who is faithless in the performance of his or her services generally cannot recover his or her compensation or other consideration that would be otherwise available to that individual [Murray v Beard, 102 NY 505]. See, also, http://publicpersonnellaw.blogspot.com/2010/02/applying-faithless-servant-doctrine.html

The decisions in Matter #1 and Matter #2 are posted on the Internet at:

Tuesday, November 29, 2016

Findings of fact in support of the appointing authority’s decision to terminate an employee required to survive the employee’s judicial challenge seeking reinstatement to his or her former position.


Holding that Schoharie County failed to make any findings of fact in support of its decision terminating a County employee, the Appellate Division said it could not conduct a meaningful review of the County’s determination in response to the employee’s Article 78 challenge to the County’s action. The court explained that “[A]dministrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review” and remitted the matter to the County Board of Supervisors “for further proceedings not inconsistent with this Court's decision.”

Ethington v County of Schoharie, 2016 NY Slip Op 07908, Appellate Division, Third Department

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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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Monday, November 28, 2016

Eligibility for workers’ compensation benefits based on work-related stress


Eligibility for workers’ compensation benefits based on work-related stress
Matter of State Insurance Fund and Workers’ Compensation Board, 2016 NY Slip Op 07734, Appellate Division, Third Department

A supervisor [Claimant] filed for workers’ compensation benefits contending that she that had felt threatened as the result of a work-related incident involving one of her subordinates and that the incident had resulted in stress, panic attacks and digestive problems.* 

After a series of hearings and the submission of Claimant's medical records and the reports and deposition testimony of her treating physician, as well as an independent medical exam by the workers' compensation carrier's consultant, a Workers' Compensation Law Judge [WCLJ] ultimately issued a decision disallowing the claim on the grounds, among others, that Claimant did not experience work-related stress greater than what is experienced in a normal work environment, and that "the exacerbation of her mental health symptoms did not arise out of and in the course of the incident or its aftermath."

The Workers' Compensation Board affirmed the WCLJ’s findings and determination denying Claimant's allegations that she suffered a work-related injury or disease arising out of and in the course of her employment. Her claim denied  for workers' compensation benefits by the Board, Claimant then appealed the Board’s decision.

The Appellate Division affirmed the Board’s ruling, citing Matter of Lozowski v Wiz, 134 AD3d 1177. In Lozowski the court held that it was "well established that ‘mental injuries caused by work-related stress are compensable if the claimant can establish that the stress that caused the injury was greater than that which other similarly situated workers experienced in the normal work environment.’"

However, said the court, in resolving that factual question, the Board's determination will not be disturbed provided that it is supported by substantial evidence.

In this instance, although the medical evidence concluded, based upon Claimant's self reporting, that the incident caused or exacerbated her mental health problems, substantial evidence supports the Board's factual determination that the incident was not compensable on the ground that the work-related stress suffered by Claimant that led to her anxiety, PTSD and depression was not "greater than that which other similarly situated workers experienced in the normal work environment."

In contrast to Claimant’s description of the events constituting the incident, including Claimant’s testimony that her subordinate “swore at her during the encounter,” the WCLJ credited the evidence given by a coworker who testified that she had overheard "a work interaction" in which Claimant and the subordinate "disagreed" and that she had informed Claimant, after the incident, that the subordinate used profanity after Claimant walked away from the disagreement.

In addition the WCLJ discreded Claimant's account of the incident and her claim that this brief episode left her terrified based upon her testimonial demeanor as well as her inconsistent accounts and actions after the incident, including Claimant's return to her subordinate's work area shortly after the incident to speak with a coworker and her testimony that “the day after the incident, she had a meeting with the [subordinate]" and later reported that the matter was "settled" and that they were "moving forward with a good working relationship."

The Appellate Division, deferring to the Board's credibility determinations, found that the record as a whole supported its conclusion that this was, at most, "an isolated incident of insubordination" to which the employer appropriately responded, which was not so improper or extraordinary as to give rise to a viable claim for a work-related injury.

Finding “… no basis to disturb the Board's determination that Claimant's work-related stress did not exceed that which could be expected by a supervisor in a normal work environment,” the Appellate Division denied Claimant’s appeal.

* The Appellate Division’s decision notes that “After the incident, Claimant, who had a history of treatment for non-work-related anxiety, depression and posttraumatic stress disorder [PTSD], reportedly experienced increased symptoms of anxiety and depression, as well as panic attacks, insomnia and difficulty concentrating for which she sought treatment from her internal medicine physician.” 

The decision is posted on the Internet at:

Saturday, November 26, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 26, 2016


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 26, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.


Pre-school education providers claimed over one million dollars of unallowed expenses
Aim High Children’s Services and the Hebrew Institute for the Deaf and Exceptional Children, two Brooklyn preschool special education providers, claimed nearly $1.4 million in taxpayer reimbursements for ineligible costs, according to audits released by New York State Comptroller Thomas P. DiNapoli.


Hiring and Budgeting problems at the
Brentwood Union Free School District
A pattern of poor budgeting led the Brentwood Union Free School District to accumulate excessive fund balance as well as reserve funds that surpassed board-approved amounts and have gone unused, according to an audit released by New York State Comptroller Thomas P. DiNapoli.


Former TownClerk padded her pay with town funds
State Comptroller Thomas P. DiNapoli announced the arrest of Jordan Green after an investigation and audit found that she paid herself thousands of dollars in unauthorized payroll payments. Green also had the town pay back her loans from the state’s retirement system while employed as the clerk to the supervisor for the Town of Minerva. The arrest is the result of DiNapoli's partnership with the New York State Police and Essex County District Attorney Kristy Sprague. Details are posted on the Internet at:


School DistrictAudits

Bellmore-MerrickCentral High School District – Financial Condition

GouverneurCentral School District – Financial Management

IrvingtonUnion Free School District – Information Technology

NewarkCentral School District – Financial Condition and Claims Processing

Port Jervis City School District – Financial Condition


Wednesday, November 23, 2016

Tests applied by courts in determining if claims of unlawful discrimination and, or, retaliation can survive a motion for summary judgment


Tests applied by courts in determining if claims of unlawful discrimination and, or, retaliation can survive a motion for summary judgment
Langton v Warwick Val. Cent. Sch. Dist., 2016 NY Slip Op 07626, Appellate Division, Second Department

Patricia Langton sued the Warwick Valley Central School District to recover damages for alleged unlawful retaliation and employment discrimination on the basis of sex in violation of Executive Law §296.

Supreme Court granted the School District’s motion for summary judgment based on its finding that  the School District and its employees were not amenable to suit under Executive Law §296(3). Langon appealed the Supreme Court’s ruling.

On appeal the School District conceded that the basis for the Supreme Court's determination granting summary judgment was incorrect but, in the alternative, contended that the order granting summary judgment should nevertheless be affirmed, although on different grounds.

The Appellate Division agreed and dismissed Langon’s appeal, explaining it rulings as follows:

Regarding retaliation

The court explained that a plaintiff alleging unlawful retaliation under state or federal law must show that (1) he or she has engaged in protected activity, (2) the employer was aware that the plaintiff participated in such activity, (3) the plaintiff suffered an adverse employment action based upon his or her activity, and (4) there is a causal connection between the protected activity and the adverse action.

In order to establish its entitlement to summary judgment in a retaliation case, a defendant must [1] demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, [2] having offered legitimate, nonretaliatory reasons in rebuttal to its  challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual.

The Appellate Division ruled that in this instance the School District met its initial burden of demonstrating that the Langon could not make out a prima facie case of retaliation by showing that the School District’s actions Langon challenged were not causally connected to any protected activity in which Langon had participated. Further, said the court, Langon “failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which she engaged and any adverse employment action.”

Regarding allegation of unlawful employment discrimination

Addressing Langon’s allegation that the School District had engaged in unlawful  employment discrimination, the Appellate Division explained that "[a] plaintiff alleging discrimination in employment has the initial burden to establish . . . (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination."

If the plaintiff meets this “initial burden”, the employer must rebut the presumption of unlawful discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision.

Addressing the situation underlying Langon's appeal, the Appellate Division said that to prevail on a motion for summary judgment in a discriminatory employment action, the School District must [1] demonstrate either Langon had failed to establish every element of intentional unlawful discrimination, or, the School District, having offered legitimate, nondiscriminatory reasons for the challenged actions, [2] the absence of a triable issue of fact as to whether the explanations were pretextual.

Here, said the court, the School District met its prima facie burden by offering legitimate, nondiscriminatory reasons for its actions challenged by Langon and also by demonstrating the absence of material issues of fact as to whether its explanations were pretextual.

Accordingly, the Appellate Division held that Supreme Court properly granted the School District’s motion for summary judgment notwithstanding its being founded on a misperception of the relevant law.

The decision is posted on the Internet at:

Tuesday, November 22, 2016

A police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e


A police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e
Diegelman v City of Buffalo, 2016 NY Slip Op 07817, Court of Appeals

General Municipal Law §205-e gives a “Right of action to certain injured or representatives of certain deceased police officers.”

In pertinent part, subdivision 1 of §205-e provides that “In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death … provided, however, that nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law.”

The question presented in this appeal:  Is a police officer who is entitled to receive benefits under General Municipal Law §207-c for a duty-related injury is barred from bringing a claim against his or her employer under General Municipal Law §205-e?

The Court of Appeal’s response: “We conclude that, where the municipal employer has elected not to provide coverage pursuant to the Workers' Compensation Law, a police officer who suffers a line-of-duty injury caused by the employer's statutory or regulatory violations may pursue a §205-e claim.”

James R. Diegelman, a City of Buffalo police officer from 1968 until 1995, was diagnosed with mesothelioma, a cancer caused by exposure to asbestos. The alleged genesis of Diegelman’s mesothelioma: exposure to asbestos during his employment at properties owned by the City and the Buffalo Board of Education and used by the Police Department.

The Court of Appeals noted that the City of Buffalo, like many other large municipalities, elected not to provide workers' compensation benefits to its police officers and contended that General Municipal Law §207-c "is essentially a super workers' compensation scheme for police officers" and, thus, “workers' compensation exclusivity rules should apply to police officers who receive section 207-c benefits, regardless of whether they are entitled to benefits under the Workers' Compensation Law.”

However, said the court, Workers’ Compensation Law and General Municipal Law §207-c  are independent of each other and, “contrary to the City's argument that §207-c is essentially a super workers' compensation scheme,” the Workers' Compensation Law "features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated in a General Municipal Law §207-c benefits universe."

The Court of Appeals explained that "the Legislature chose different eligibility standards — 'arising out of and in the course of employment' for workers' compensation benefits [in contrast to the] 'in the performance of his [or her] duties' [standard] for section 207-c benefits."

Under these differing standards, "police … officers may be eligible for Workers' Compensation benefits as a result of circumstances that might not entitle them to General Municipal Law §207-c benefits." Indeed, said the court, "[w]orkers' compensation benefits are intended to be dispensed regardless of fault, for any injury arising out of and in the course of one's employment . . .[,] [while] [s]ection 207-c benefits . . . are more expansive, but apply to a narrower class of work-related injury, relative to the performance of law enforcement duties." Further, as "the issue involving the entitlement to benefits in the General Municipal Law setting is not . . . the same one decided in a Workers' Compensation determination" a finding by the Workers' Compensation Board that an injury is work-related cannot be given collateral estoppel effect against a municipality that denies an application for §207-c benefits.

Rejecting the City's argument General Municipal Law §207-c benefits can be equated to workers' compensation benefits for purposes of interpreting language contained in General Municipal Law §205-e, the Court of Appeals observed that “[t]he language of §205-e prohibits only recipients of workers' compensation benefits from commencing suit against their employers; it does not, by its terms, bar the commencement of suits by recipients of section 207-c benefits— which we have repeatedly recognized to be separate and distinct from workers' compensation benefits.”

The court said that it concluded that “General Municipal Law §205-e, when construed ‘in an unforced and natural manner,’ cannot be read to bar suits by recipients of General Municipal Law §207-c benefits when those police officers are employed by municipalities that have elected not to provide workers' compensation coverage.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_07817.htm

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The Disability Benefits E-book – 2016 Edition: This 814 page electronic book [e-book] focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information concerning this e-book click on: http://section207.blogspot.com/
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Monday, November 21, 2016

Understanding the Cyber Threat


Understanding the Cyber Threat
Source: Governing Daily

Elected and appointed officials are aware that cyber threats are growing both more numerous and more sophisticated. But how should they engage on this issue in order to protect vital government services and sensitive citizen data?

This new policy guide, Understanding the Cyber Threat, offers advice from a wide range of experts -- legislative thought leaders, government chief information security officers and industry security professionals – on the important role elected and appointed officials must play in developing and overseeing cyber security initiatives. 

Click here to DOWNLOAD NOW

Disciplinary actions pursuant to Education Law §3020-a processed consistent with compulsory arbitration standards


Disciplinary actions pursuant to Education Law §3020-a processed consistent with compulsory arbitration standards
Powell v New York City Dept. of Educ, 2016 NY Slip Op 07656, Appellate Division, Second Department

Education Law §3020-a(5) provides for judicial review of an arbitrator's disciplinary determination, made in the course of a disciplinary arbitration as set out in CPLR 7511. The grounds for vacating an award pursuant to Article 75 include a finding of an arbitrator’s misconduct, his or her abuse of power or procedural irregularities.

However, where the  parties are subject to compulsory arbitration, review of the award by the courts must satisfy an additional layer of judicial scrutiny — the arbitration decision must have “evidentiary support,” may not be arbitrary and capricious and it must have been made by the arbitrator in accordance with administrative due process.

In an Article 75 proceeding seeking to vacate a disciplinary arbitration award made pursuant to Education Law §3020-a, Monique Powell challenged the arbitrator's sustaining certain charges of misconduct against her and terminating her employment. Supreme Court denied Powell’s petition.

In sustaining the Supreme Court’s ruling upholding the arbitrator’s determination, the Appellate Division, noting that Education Law §3020-a provides for compulsory arbitration, explained that Powell did not demonstrate any basis for vacating the arbitration award.

In other words, said the court, Powell did not demonstrate that the arbitration award was the result of the arbitrator’s misconduct, abuse of power, and procedural irregularities. Further, said the Appellate Division, the arbitration award satisfied the additional layer of judicial scrutiny required in situations involving compulsory arbitration as it had evidentiary support, was not arbitrary and capricious, and was in accord with administrative due process.

As to the penalty imposed, dismissal, in the words of the court, “the determination to terminate [Powell’s] employment did not shock the conscience, as the evidence adduced at the hearing demonstrated that [Powell] requested to be paid for work that she did not perform and attempted to conceal her misdeeds through intentional and deceptive conduct, which included enlisting a student and two business owners to write false letters on her behalf.”

The Appellate Division also noted that “despite the overwhelming evidence of misconduct,” Powell refused to accept responsibility for her actions.

The decision is posted on the Internet at:

______________

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html
______________


Saturday, November 19, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 19, 2016


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 19, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

State Comptroller’s staff recognized for their role in fighting public corruption

Recently staff members of the Department of Audit and Control's Division of Investigations were recognized by the Inspector General for the U.S. Department of Education for their outstanding efforts in the audit and investigation of a special education provider whose director stole public funds at the expense of taxpayers and students. 



Deputy Comptroller Nelson Sheingold is pictured to the left of the Comptroller and the award recipients are pictured, left to right, in the back:

David DiNatale, State Program Examiner
Joseph Gillooly, State Program Examiner
Raymond Russell, Assistant Chief Investigator
Kenrick Sifontes, Audit Director
Sheila Jones, Audit Supervisor
Stacy Marano, Assistant Comptroller
Tania Zino, State Program Examiner
Hugh Zhang, State Program Examiner

Also receiving received awards but unable to be present:

Frank Patone, Audit Director
Stephen Lynch, Audit Manager
 
The commendation reads: "From the initial audit to the criminal conviction, staff members showed remarkable teamwork across divisions and with other agencies in the pursuit of protecting taxpayer money from fraud and abuse. Thanks to their close cooperation with federal and state authorities, this criminal was federally convicted and required to pay $2 million in restitution and $1.9 in forfeiture."

The State Comptroller encourage anyone with information on alleged public corruption activities to contact the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.


New York StateComptroller Thomas P. DiNapoli announced the following audits have been issued:

State Education Department - Expenses submitted by Bornhava to the State Education Department

New York City Department of Finance - Reporting of Billboard Income

Westchester County Health Care Corporation - Contract Participation of Minority- and Women-Owned Business Enterprises

Workers' Compensation Board - Assessment of Costs to Administer the Workers’ Compensation Program for the Fiscal Year Ended March 31, 2014

Town of Burke - Fiscal Oversight

Town of Deerpark - Budget Review

City of Newburgh - Budget Review

Rockland County - Budget Review 


School Districtand BOCES audits

ArkportPayroll

Erie 2- Chautauqua-Cattaraugus BOCES - Adult Education Program and Professional Services

Fabius-Pompey- Information Technology

Indian River - Financial Condition

Jamesville-Dewitt Procurement

Rye NeckInformation Technology

 

Friday, November 18, 2016

Requiring an educator submit to a medical examination to determine his or her ability to perform the duties of his or her position


Requiring an educator submit to a medical examination to determine his or her ability to perform the duties of his or her position
Decisions of the Commissioner of Education, Decision #16,991

Soon after being relocated to a basement office at new school [School 1], Educator complained of “congestion, chronic sinus headaches, shortness of breath, chest pressure, a sore throat, red burning eyes, dry cough and fatigue.” Educator also claimed that she observed “visible mold and other unknown substances on the walls of her building, in classrooms and offices.” Attributing her discomfort to the location of her office in School 1’s basement, Educator requested an “upstairs office” in School 1.

The School District, instead, provided Educator with an office at a different school and employed a private contractor to perform a visual inspection and air quality testing on the classrooms and offices at School 1.

The contractor reported that there is no set exposure limit for exposure to mold spores, thus indoor testing was conducted and compared to outdoor testing. On both testing dates some indoor mold spores were detected. However, the reports for both testing dates stated that “the presence of a few spores found indoors but not found outdoors should not be a concern.” The reports also recommended that a better ventilation system be installed.

Educator was subsequently counseled regarding her complaints about the condition of the basement classrooms and offices at School 1 and was given a Health Insurance Portability and Accountability Act (“HIPAA”) form to sign, authorizing the release of her medical records.

The superintendent notified Educator that the School Board voted to direct her to submit to a medical examination in accordance with Education Law §913 to determine her “physical and/or mental capacity to continue her duties.” Attached to the notice were two authorizations for release of medical information, one for referenced psychotherapy notes and the other referenced medical records. The letter directed Educator to fill out the release forms “for each prior physician and/or other health care provider who has such records from the last three years.” The records demanded were to be provided to the School District’s doctor who was to “serve as the District’s initial medical inspector for this case.”

Educator returned two releases prepared for two doctors under protest and crossed out the section on the releases that stated that information “may be subject to redisclosure”, changed the date of expiration of the authorization from December 31, 2014 to June 30, 2013 (approximately five months after signing the release), and clarified that the release pertained to “[r]ecords for the past three (3) years.”

The School District did not accept these releases and, “under threat of insubordination,” Educator submitted the forms with only the change of dates retained; June 30, 2013 rather than December 31, 2014.*

Educator filed an appeal with the Commissioner of Education contending that her right to privacy and confidentiality was breached [1] by being ordered to be examined under Education Law §913 and [2] to sign medical releases that authorize the re-disclosure of her medical records. As redress, Educator asked the Commissioner to direct the School District to limit the release of medical records to those of P.P.’s allergist, expunge the Education Law §913 medical examination from her file and to destroy or return to her any medical records provided to the School District.

The School District contended that [1] Educator factual and legal analysis is incorrect, [2] that it acted within its authority under Education Law §913 to require an examination of an employee to determine the employee’s capacity to perform the duties of his or her position, and [3] that the medical authorizations they required Educator to execute are consistent with federal regulations.

The School District also argued that Educator constitutional claims were brought in an inappropriate forum and that Educator failed to meet her burden of establishing a clear legal right to the relief requested.

The Commissioner said that Education Law §913 provides, in pertinent part, that “In order to safeguard the health of children attending the public schools, the board of education or trustees of any school district … shall be empowered to require any person employed by the board of education or trustees … to submit to a medical examination by a physician or other health care provider of his or her choice or the director of school health services of the board of education or trustees … in order to determine the physical or mental capacity of such person to perform his or her duties.”

Noting that in an appeal to the Commissioner the Educator has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the Educator seeks relief, the Commissioner found that Educator “failed to meet her burden of proof.” The Commissioner said that a board of education has a statutory right to order an employee to submit to a medical examination pursuant to Education Law §913 “in order to determine the employee’s capacity to perform the duties of his or her position.”

The Commissioner said that in light of Educator’s numerous health complaints, which she claimed were caused by the conditions at School 1, her absences and the School District’s need to have an individual in the position at School 1 who can perform the duties of Educator’s position, it was reasonable for the School District to require that Educator submit to a medical examination in order to determine her physical and/or mental capacity and whether it affects her ability to perform her job duties satisfactorily.

As to Educator’s assertion that her right to privacy and confidentiality was breached by being subject to an Education Law §913 medical examination, the Commissioner, citing Patchogue-Medford Congress of Teachers v. Board of Educ. of Patchogue-Medford Union Free School Dist., 70 NY2d 57, said that it is well-settled that “teachers in this State are generally required to submit to an examination to determine their physical and mental fitness to perform their duties,” and that teachers “therefore have a diminished expectation of privacy with respect to State inquiries into their physical fitness to perform as teachers.”

The Commissioner explained that considering this “diminished expectation of privacy,” Educator ongoing health complaints and her belief that they were caused by conditions at School 1, any additional explanation by the School District as to why it was requiring Educator to submit to an Education Law §913 examination was unnecessary. Further, said the Commissioner, P.P., herself, placed her capacity to continue to perform her duties at issue by asserting that she has numerous debilitating health issues and, as a consequence, the School District had reason to suspect that her health issues may affect her ability to perform her duties as principal.

As to the School District’s request for Educator medical records, in Strong v. Board of Educ. of the Uniondale Union Free School Dist., 902 F2d 208, the court held that “Legitimate requests for medical information by those responsible for the health of the community do not rise to an impermissible invasion of privacy.”

Agreeing with Educator’s assertion that a school district does not have “unfettered discretion to compel the production of medical records,” the Commissioner said that the School District’s request for three years of medical records in this case for the purpose of assessing Educator’s physical and mental capacity to perform her duties was not an abuse of its discretion.

The Commissioner, ruling that Educator failed to meet her burden of establishing that School District had improperly required her to be subject to an examination in accordance with Education Law §913 and to sign HIPAA release forms for medical information to be used in conjunction with the medical examination, declined to declare the School District’s actions to be null and void or order the expungement of the records of such actions from her personnel file, “on this record.”

* Educator  was examined by the District’s physician and, according to Educator the physician said that he only needed to see her medical records from her allergist. Educator’s attorney then sent a letter to the School District’s attorney revoking Educator’s consent for the release of medical records except for medical records from her allergist. 

The decision is posted on the Internet at:

Thursday, November 17, 2016

The standards used by the courts in reviewing arbitration awards


The standards used by the courts in reviewing arbitration awards
Noel v Bianco, 2016 NY Slip Op 07398, Appellate Division, First Department

Supreme Court denied the petition filed by Lesly Noel seeking a court order vacating an arbitration award terminating his employment with the New York City Transit Authority for misconduct. The Appellate Division unanimously affirmed the lower court’s ruling.

The decision indicates that the arbitration award was promulgated pursuant to a “voluntarily-entered collective bargaining agreement” and thus was not subject to a heightened level of judicial scrutiny. Citing New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, the Appellate Division said that in such situations “courts are not permitted to review an arbitrator's findings of fact, including credibility determinations.”

In contrast, where the parties are forced to engage in compulsory arbitration, as was the situation in Hamilton v Alley, 137 AD3d 1564,the court ruled that judicial review under CPLR Article 75 requires that the "award be in accord with due process and supported by adequate evidence in the record."

In Bernstein [Norwich City School Dist. Bd. Of Education], 282 AD2d 70, which involved a challenge to an Education Law §3020-a disciplinary proceeding, the Appellate Division concluded that the applicable standard for review of the arbitration award in Bernstein's case was whether there was substantial evidence in the record to establish the employee's guilt with respect to the disciplinary charges levied against him.

The Bernstein court also pointed to CPLR Section 7803 as authority to adopt a "substantial evidence" standard in appeals from a §3020-a determination. In the words of the court: “[W]e must determine "whether there is a rational basis in [the whole record] for the findings of fact supporting the [Hearing Panel's recommendation]."

The Noel decision is posted on the Internet at:

Wednesday, November 16, 2016

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71


Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71
Stewart v. County of Albany, 300 A.D.2d 984, Motion to appeal denied, 100 N.Y.2d 505

General Municipal Law §207-c provides for the “Payment of salary, wages, medical and hospital expenses of policemen with injuries or illness incurred in the performance of duties.” In contrast, CSL §71, typically referred to as “Workers’ Compensation Leave,” provides for leave without pay in the event an employee is injured in the performance of his or her duties.*

In Olsen v Dormer, 13 Misc 3d 1236(A),** Supreme Court addressed a challenge by a police officer receiving General Municipal Law §207-c benefits to his termination from his position by his employer under color of Civil Service Law §71.

A NYPPL reader, referring to NYPPL’s summary of the Olsen decision, wrote: 

“This is certainly a well constructed position representing a ‘dissent’ with an Appellate Court decision - [Stewart v. County of Albany, 300 A.D.2d 984, 085 (3d Dept. 2002) (‘Upon our review of Civil Service Law § 71 and its legislative history, we find it clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer-even one receiving General Municipal Law §207-c benefits-from the County payroll’)]. While I understand the inviolability of statutory 207-c benefits, an issue arises as to benefits not addressed by the statute, most notably medical insurance. Short of termination, I am not sure by what process an employer would be able to discontinue that fringe benefit. Must the taxpayers continue to foot the bill for family medical insurance coverage ‘forever’ should the employee be unable to return to duty? In practical application my HR consulting firm has been involved in multiple terminations (under CSL §71) of employees on 207-c leave (supported by legal representation) without challenges (thus far.)"

NYPPL's response to the reader's comments concerning Stewart is set out below:

In Stewart v. County of Albany, 300 A.D.2d 984, the Appellate Division said: "Upon our review of Civil Service Law §71 and its legislative history, we find it clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer - even one receiving General Municipal Law §207-c benefits from the County payroll".

NYPPL respectfully disagree with the Appellate Division's views concerning the application of CSL §71 and GML §207-c as set out in Matter of Stewart.

In NYPPL's opinion, an individual receiving §207-c benefits as the result of a work-related disability [and, indeed, GML §207-a with respect to firefighters receiving similar benefits] remains an employee and is continued on the payroll of the appointing authority, albeit in a leave of absence at full pay status, and is not placed simultaneously, or independently, on leave pursuant to §71 of the Civil Service Law.

Further, in NYPPL's view, such an individual is to be continued in such status as an employee until he or she is found medically qualified to return to full duty or "light duty," is retired on disability or otherwise, dies or becomes superannuated for the purposes of §207-c. As the employee is not place on §71 leave, independently or in concert with §207-c, he or she is not subject to removal from his or her position pursuant to §71 of the Civil Service Law after the minimum statutory period permitted by law.

Footnote 2 in Stewart states:

Consistent with its statutory purpose, the Sheriff's resort to Civil Service Law §71 was presumably 'to secure a steady, reliable, and adequate work force' (Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128, 135; see Matter of Allen v Howe, 84 NY2d 665, 672), i.e., he wanted to hire another correction officer to replace petitioner. However, termination of employment under Civil Service Law §71 does not necessarily involve a termination of benefits awarded pursuit to General Municipal Law §207-c, as such benefits 'are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment' (Matter of Gamma v Bloom, 274 AD2d 14, 16; see Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, 691; Matter of Meehan v County of Tompkins, 219 AD2d 774, 775). Nor does our determination have any effect on the separate dispute between these parties concerning whether petitioner can perform light duty."

NB:Neither Duncan nor the two individuals in Allen [Cathy Allen and Diane Spiegel] were employees eligible for GML §207-c benefits.

While NYPPL agrees with the Appellate Division’s conclusion that the Sheriff "wanted to hire another correction officer to replace petitioner," this does not resolve the underlying issue: the employment status of the individual receiving the §207-c benefit and source of the funds necessary for the compensation to be paid to (1) the replacement and to (2) the individual receiving §207-c benefits upon the appointment of his or her replacement.

Indeed, the relevant language of GML §207-c provides a statutory imperative that the individual involved return to active duty once found medically qualified to do so. Once his or her disability abates sufficiently to permit this or, in the alternative, he or she is directed to return to perform a "light duty" assignment if found medically qualified to do so, the individual risks having his or her §207-c benefits discontinued by the appointing authority should he or she fail to do so.

Contrast this with §71, whereby should the employee be terminated and thereafter determined to be qualified to resume the duties of his or her former position and there is no suitable vacancy available at the time, the individual's name is to be placed on a preferred list, and his or her name is to be continued on such list for four years unless earlier appointed to a suitable vacancy.

In NYPPL's view, the only means available to the appointing authority to lawfully "terminate" an individual in a §207-c leave situation and not qualified for reinstatement to full or light duty is to file an employer application on behalf of the employee for accidental disability retirement or performance of duty disability retirement benefits pursuant to GML §207-c.2  should the employee declines to do so, which decision by the Employees' Retirement System would control as otherwise provided by law.

In contrast, an individual receiving GML §207-c benefits becomes ineligible for such benefits if he or she "ceased to be an inhabitant within the geographical restrictions" set by law as the court explained in O'Connor v Town of Clarkstown, 221 AD2d 444. No such "geographical restriction" is placed on an individual on §71 leave. 

As to the Sheriff's desire to "replace" the individual during the disabled employee’s absence on §207-c leave, he or she may do so by establishing an appropriate "supernumerary position," provided that there are funds available sufficient for this purpose.

Without engaging in an extended analysis of §207-c, suffice it to note that in support of NYPPL's view that the individual remains an employee and is to be continued on the payroll -- i.e., he or she is not terminated and is not paid by means other than via salary or wages, Subdivision 6 of §207-c provides, in pertinent part, as follows:

6. Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and, or, for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party [emphasis supplied].

Accordingly, absent the individual continuing in an "employee status" and continuing to receive his or her "salary or wages" it could be argued that the appointing authority could not maintain a cause of action to recover such payments.

* An employee on §71 leave may elect to remain on the payroll by using his or her accrued leave credits and other accruals and benefits at “full or half-pay” until they are exhausted.

** NYPPL’s summary of Olsen v Dormer, 13 Misc 3d 1236(A), posted on the Internet at http://publicpersonnellaw.blogspot.com/2013/08/termination-of-police-officer-while-on.html

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The Disability Benefits E-book – 2016 Edition: This 814 page electronic book [e-book] focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information concerning this e-book click on: http://section207.blogspot.com/
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Tuesday, November 15, 2016

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious


Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious
Decisions of the Commissioner of Education, Decision #16,985

Leanna Mercedes appealed the decision of the New York City Department of Education [DOE] that sustained her “D” rating on her annual professional performance review.

Mercedes, a probationary assistant principal, was given a Doubtful or “D” rating for the school year by the school’s Interim Acting Principal [Principal]. This resulted in Mercedes filing a complaint with DOE’s Office of Equal Opportunity and Diversity Management (“OEO”) alleging that Principal had unlawfully discriminated against her in giving her a “D” rating. OEO’s investigation substantiated Mercedes’ allegation that Principal had violated DOE’s non-discrimination policy as set out in DOE’s Chancellor’s Regulation A-830.  Notwithstanding OEO’s finding, DOE notified Mercedes that her appeal of her “D” rating was denied.  Mercedes appealed DOE’s decision to the Commissioner of Education.

The Commissioner said that “based on the record before me, I find that [Mercedes] has demonstrated that the Chancellor's determination sustaining her “D” rating was arbitrary and capricious and made in gross error and [her] appeal must be sustained.”

Mercedes had contended that the “D” rating [1] “violated the Department’s policies and regulations because it was completely devoid of any supporting documentary evidence;” [2] the “D” rating was baseless and discriminatory; and [3] the “D” rating was arbitrary and capricious and cannot be sustained because the evaluation violated the Department’s rules and regulations. 

In rebuttal, DOE had argued that Mercedes’ petition [1] failed to state a claim upon which relief may be granted; [2] that some or all of her claims may be barred, in whole or in part, by the doctrine of res judicata; and [3] it had followed the “proper procedures” in issuing the “D” rating.

DOE also contended that its “ratings guidelines are not legally binding on the Department and that Mercedes’ “D” rating was supported by documentation.”

After addressing a number of procedural issues that were decided in Mercedes’ favor, the Commissioner noted that the Chancellor’s designee stated in his decision letter that the “D” rating was sustained "as a consequence of insufficient time to make an accurate assessment of [Mercedes’] performance." This explanation, said the Commissioner, lacks a rational basis and was in gross error.

Further, observed the Commissioner, “[t]he record is devoid of any support for [Mercedes] ”D” rating,” noting that the sole reason given for sustaining the rating is that the Interim Acting Principal had “insufficient time to accurately assess Mercedes’ performance.” However, said the Commissioner, the record indicated that despite the Interim Acting Principal’s “short time in that position,” he was able to provide a rating of “satisfactory” to two other male assistant principals. 

In any event, the Commissioner explained that “assigning a rating based on the principal’s inability to rate the employee’s performance lacks a rational basis and is arbitrary and capricious” and directed DOE to remove the challenged Doubtful “D” rating for the from Mercedes' personnel file.

The decision is posted on the Internet at:

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:

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