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Thursday, March 31, 2016

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally


If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally
Nassau County Sheriff's Correction Officers Benevolent Assn., Inc. v Nassau County, 2016 NY Slip Op 02096, Appellate Division, Second Department

The Nassau County Sheriff's Correction Officers Benevolent Assn., Inc. [Association] brought a CPLR Article 78 action seeking a review the hearing officer’s decision  confirming a determination of the Nassau County Sheriff's Department [Department] to discontinue the General Municipal Law §207-c benefits being paid to Correction Officer John Thomas. Supreme Court dismissed the Association’s petition and the Appellate Division affirmed the lower court’s decision.

Thomas sustained a back injury in the course of performing his duties as a correction officer. He was absent from work due to his work-related injury and received benefits pursuant to GML §207-c. He subsequently returned to work in a restricted/light-duty capacity, “with no inmate contact and no carrying of a weapon.”*

In June 2009, a doctor appointed by Nassau County [County] determined that, as a result of his back injury, Thomas was no longer fit for any duty, making him again eligible to receive benefits pursuant to GML § 207-c. A subsequent evaluation by a County-appointed doctor in September 2009 reached the same conclusion. In February 2010, Thomas was examined by a County-appointed doctor who determined that he was now fit to return to work in a light/restricted-duty capacity.

The Sheriff's Department informed Thomas of the County’s physician’s determination and of his right to request a hearing to challenge the determination as provided for in the collective bargaining agreement [CBA] between the County and the Association. Thomas elected to submit the matter to a hearing whereby hearing officer would determine whether Thomas was capable of returning to work on restricted/light-duty assignment as of February 2010.** Although Thomas contended that the burden of proof was on the County to show that he was capable of returning to work in a restricted/light-duty capacity, the hearing officer disagreed, ruling that Thomas had the burden of proof to show that he was not fit to return to work in a light/restricted-duty basis.

At the administrative hearing that followed Thomas was represented by an attorney and submitted evidence, including the opinion of his personal physician, to contest the County’s medical examiner's conclusion that Thomas was capable of returning to restricted/light-duty work. The hearing officer weighed the conflicting medical opinions and concluded that Thomas was capable of returning to restricted/light-duty work.

The Association, contending that the hearing officer's determination was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion," filed an Article 78 petition arguing that Thomas was denied due process when the hearing officer placed the burden of proof on him to show that he was not capable of returning to work in a restricted/light-duty capacity.

The Supreme Court agreed with the hearing officer's conclusion that Thomas bore the burden of proof at the hearing, and denied the petition and dismissed the proceeding.

The Appellate Division commenced its review of the Association’s appeal of the lower court’s decision by noting that Thomas’ right to receive payments pursuant to GML §207-c "constitutes a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated, 'and a due process hearing is triggered when an officer on §207-c status submits evidence from his treating physician supporting the officer's claim of continued total disability'."

However, said the court, §207-c provides no definitive procedure to be followed, so the hearing procedure to be provided may be the subject of collective bargaining. As the parties in the instant proceeding had not “collectively bargained for a procedure to be followed when an officer contests a light-duty determination,” the Appellate Division ruled that the County was free to fashion a hearing remedy so long as its procedure provided Thomas with administrative due process.

The Appellate Division, citing Kigin v State of NY Workers’ Compensation Board, 24 NY3d 459, said: "Generally, procedural due process principles require an opportunity for a meaningful hearing prior to the deprivation of a significant property interest. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner."

Under the circumstances, said the court, Thomas was afforded administrative due process. In the words of the Appellate Division, “[r]equiring him to come forward with some evidence at the hearing to support his claim of ‘continued total disability’ did not deprive him of such right. Indeed, an officer's right to a due process hearing under the Fourteenth Amendment is not triggered until he or she submits such evidence.”

Accordingly, the Appellate Division ruled that Supreme Court had properly denied the Association’s petition and dismissed the Association's appeal.

* In 2003, Thomas was called to active military duty, where he was also given restricted duties because of his back injury. Upon his return from active military duty in 2008, Thomas again returned to his work as a correction officer in a restricted/light-duty capacity.

** Such determinations are made based on the medical condition of the individual at the time the challenged medical examination was administered rather than his or her medical condition at the time of hearing.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_02096.htm
_____________________

The Disability Benefits E-book: - This 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 click on: http://booklocker.com/3916.html
_____________________


Wednesday, March 30, 2016

Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw


Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw
New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 2016 NY Slip Op 02280, Court of Appeals

Thomas Tierney was employed by the Office of Mental Health [OMH] as a Safety and Security Officer 2 [SSO2], a Salary Grade [SG] 15 position. When the Chief Safety and Security Officer [CSSO] of the Hudson River facility, position allocated to SG 20, transferred to another facility in June 2011, Tierney was advised that he would be serving as the Acting CSSO. He served in that capacity until Hudson River closed in January 2012.

In August 2011, Tierney filed an out-of-title work grievance with OMH in accordance with the three step review process set out in the relevant collective bargaining agreement seeking compensation at the SG 20 level for the out of title duties he alleged he was performing as Acting CSSO.

OMH granted Tierney’s grievance but noted that under the terms of the controlling collective bargaining agreement "[o]nly the Director of the Governor's Office of Employee Relations [GOER] has the authority to issue monetary awards" in the event an out-of-title grievance is sustained by the appointing authority.

Step 3 of the grievance procedure set out in the collective bargaining permited GOER to seek an opinion from the Civil Service Department’s Division of Classification and Compensation [DCC] as to whether the grieved duties substantially differed from those appropriate to the title “to which the employee is certified.” 

DCC undertook its own comparison of the duties and responsibilities of CSSOs and SSO2s* and determined that the duties Tierney described in the grievance he filed did not constitute “out-of-title” duties but, rather, were consistent with the duties of a SSO2.

GOER adopted the findings of DCC and denied the grievance. Tierney appealed GOER’s decision.

In his Article 78 petition Tierney alleged that, in addition to the duties he included in the grievance form he had submitted to OMH, he had performed the out-of-title duties DCC had listed as examples of out-of-title work in its decision. The Court of Appeals said that “[a]s those additional duties were not included in the grievance form and apparently were not considered by OMH, they were not considered by either Supreme Court or by the Appellate Division.”

Sustaining the decisions of DCC and GOER, the court said that “judicial review of administrative determinations is confined to the facts and record adduced before the agency." In the words of the Court of Appeals, “[t]he motion court concluded that GOER's determination that [Tierney’s] responsibilities as an acting CSSO were substantially similar to the job description of a SSO2 was not arbitrary and capricious.” A divided Appellate Division had affirmed GOER’s determination (see 126 AD3d 1267 [3d Dept 2015]) and the Court of Appeals affirmed the Appellate Division's decision.

Citing Nehorayoff v Mills, 95 NY2d 671, the Court of Appeals explained that where the administrative determination "is supported by a rational basis, and is neither arbitrary nor capricious, it will not be disturbed."

Noting that Civil Service Law §61(2) bars the assignment of an employee to "perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position" other than when those duties are performed on a temporary emergency basis, the court said that there was evidence in the record to support the determination that Tierney was performing duties as the Acting CSSO that were “consistent with, and a natural extension of, his title as a SSO2."

Finding that the combination of out-of-title work and the work being performed for an extended period of time was not present, the Court of Appeals held that the conclusion reached by DCC and adopted by GOER was neither arbitrary nor capricious simply because it differed from OMH's conclusion.

Accordingly, said the court, “GOER's determination that Tierney was performing duties consistent with his position as a SSO2 and was not performing the key distinctive duties of the CSSO position [was] rationally based.”

A number of court decisions addressing out-of-title work and position classification grievance determinations are summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2011/04/out-of-title-work-and-position.html

* DCC also described some of the duties that are assigned to CSSOs and that would have been out-of-title for a SSO2 but such duties were not included in Tierney's grievance,

The decision is posted on the Internet at:


Tuesday, March 29, 2016

Agency shop fee statutes affecting public employees



Agency shop fee statutes affecting public employees
Friedrichs v. California Teachers Assoc., No. 14–915

On March 29, 2016, the Supreme Court issued its decision in Friedrichs v. California Teachers Assoc., 578 U.S. ___(2016).

At issue in this case was whether public-sector “agency shop” arrangements violate the First Amendment by requiring public employees to subsidizing speech not related to collective bargaining by public-sector unions unless the member elects to “opt-out.”

The Court said "The Judgment is affirmed by an equally divided Court."

The decision results in the Ninth Circuit Court of Appeals’ ruling standing, thereby permitting the California Teachers Association to continue its “agency shop” arrangement. Accordingly, a member of the negotiating unit must “affirmatively object” to “subsidizing nonchargable speech” by a public union and thereby receive a refund for the relevant portion of the agency shop fee attributed to supporting such “nonchargable speech.”

The decision is posted on the Internet at:

Determining the disability benefits due a firefighter as the result of a work-related injury can be complex


Determining the disability benefits due a firefighter as the result of a work-related injury can be complex
McKay v Village of Endicott, 2016 NY Slip Op 02129, Appellate Division, Third Department

The Appellate Division, in considering the Village of Endicott’s appeal of  decisions made by Supreme Court that awarded firefighter Joseph W. McKay certain disability benefits, set out  basic procedural guidelines with respect to determining a firefighter's eligibility for benefits available pursuant to General Municipal Law §207-a in the event he or she disabled as the result of a "line-of-duty" injury:

1. In the event a firefighter claims that he or she suffered a disability in the performance of his or her duties, the employer makes the initial determination as to the employee’s fitness to return to full-duty or restricted/light-duty work based on the opinion of a physician it appointed to medically examine the firefighter.

2. The County has the right to make this initial determination without holding a hearing or initiating any type of proceeding.

3. In the event the employer determines that the firefighter is fit to return to full-duty or restricted/light duty, the firefighter may challenge the employer’s determination.

4. Should the firefighter challenge the employer’s decision, he or she is entitled to a hearing during which he or she may be represented by counsel and an opportunity to contest the employer's medical examiner's conclusion by submitting his own evidence, including the opinion of his personal physician and other medical experts.

5. The hearing officer weighs any conflicting medical opinions to arrive at his or her determination whether or not the firefighter is capable of returning to full-duty or restricted/light-duty work.

With these guidelines in mind, the significant events in the MacKay case are as follows:

McKay, employed by the Village as a firefighter, sustained a work-related injury in 2008 and obtained workers' compensation benefits. He was also granted disability benefits pursuant to General Municipal Law §207-a(1) by the Village.

The Village subsequently discontinued McKay’s GML §207-a(1) benefits. 

McKay, however, was latter found eligible for such GML §207-a(1) benefits but, prior to that determination being promulgated, McKay commenced receiving performance of duty disability retirement benefits from the New York State and Local Police and Fire Retirement System. As a result, McKay was no longer eligible for GML §207-a(1) disability benefits.

McKay then sought post-retirement supplemental benefits payments from the Village that were available pursuant to GML §207-a(2). The Village denied his application and McKay initiated a CPLR Article 78 proceeding. 

In 2012, Supreme Court granted McKay’s petition in part and directed the Village to pay McKay GML §207-a(2) benefits retroactive to the effective date of his performance of duty disability retirement in 2010, "pending a determination consistent with due process" as to whether GML §207-a(2) supplemental benefits should be terminated.

The Village appealed the Supreme Court's 2012 judgment. While that appeal was pending, McKay submitted a proposed judgment to Supreme Court that would award him a set amount in retroactive benefits. While the parties were arguing over the court’s issuing a new judgment and the correct amount of retroactive benefits to be awarded, the Appellate Division affirmed the Supreme Court's 2012 Article 78 decision, (see 113 AD3d at 991-993). 

In February 2014 Supreme Court issued a judgment that awarded McKay $67,830.69 in retroactive benefits, interest and costs. The Village appealed the Supreme Court’s 2014 ruling.

The Appellate Division, however, limited the Village’s appeal of the Supreme Court's 2014 ruling to the Village's claim that Supreme Court had erred in calculating the amount of retroactive benefits the court awarded to McKay in its 2014 judgment. 

The Appellate Division agreed with the Village's contention that the lower court had erred in calculating "retroactive benefit," holding that “the award of retroactive benefits cannot stand.” 

The court explained that although the Village was not required to pay McKay his full salary as of the date that he was granted performance of duty disability retirement benefits, he was entitled to the difference between the amounts received as his retirement allowance and the amount of his regular salary or wages that he would have otherwise received had he not retired from the Village "until such time as he shall have attained the mandatory service retirement age applicable to him or shall have attained the age or performed the period of service specified by applicable law for the termination of his service."

The Appellate Division also said that Supreme Court’s 2012 judgment, and its affirming thereof, “make clear that [McKay] was entitled to receive the benefits afforded by GML §207-a(2) until a due process hearing could be conducted to determine whether those benefits should be terminated.”

Although Supreme Court’s 2014 judgment correctly required the Village to pay McKay benefits retroactive to the date of his 2010 retirement, and Supreme Court acknowledged that those benefits must be "reduced by the amount of the [workers' compensation] benefits" that McKay received as a result of his 2008 injury, the Appellate Division noted that Supreme Court did not "factor in the receipt" of the workers' compensation benefits received by McKay in making its award “due to a  lack of proof to establish the offset amount” and directed the Village “to seek redress in whatever forum it deems appropriate."

Agreeing that the proof presented concering the amount of the offset was "meager," the Appellate Division said that the award was premature without considering this “offset” and rather than require the Village to undertake “piecemeal efforts” to establish the appropriate offset amount, it remitted the matter "to Supreme Court for the holding of a hearing, without delay, at which the parties may present proof relative to . . . [the Village’s] entitlement to an offset" in consideration of the workers’ compensation benefits paid to McKay."

The decision is posted on the Internet at:

_____________________

The Disability Benefits E-book: - This 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 click on: http://booklocker.com/3916.html
_____________________


Monday, March 28, 2016

Name clearing hearings


Name clearing hearings
Chang v Department of Educ. of the City of New York, 2016 NY Slip Op 02018, Appellate Division, First Department

The New York City Department of Education [Department] terminated Tzefang Frances Chang’s contract as a bilingual speech pathologist. Chang brought an Article 78 action challenging the Department’s action.

Supreme Court dismissed Chang’s petition after finding that the agreement between the Department and Chang gave the Department “the unconditional right to terminate the contract without cause and that such contract termination clauses are enforceable.”*In addition, the court said that the Department was not required to accept Chang's claims concerning the events that triggered the Department’s action. The Appellate Division sustained the lower court’s ruling.

Another element in this action concerned Chang’s demand for a “name-clearing hearing.” The Appellate Division held that Chang was not entitled to a name-clearing hearing as she presented no evidence to refute the statements of the Department’s Director of Employee Relations that “the code” placed on Chang's personnel file was for internal use only, and therefore she failed to show a likelihood of public dissemination of the material she alleged was “stigmatizing.”

In Swinton v Safir, 93 NY2d 758, the Court of Appeals held that with respect to an employer providing a former employee with a “name clearing hearing,” the material in the individual’s personnel records objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” Further, the individual seeking such a hearing carries the burden of proof and must show the “stigmatizing nature” of the information and its publication to the public.

Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.

In any event, a name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Prevailing at a name-clearing hearing does not entitle the individual to reinstatement to his or her former position.

* Presumably an employer’s “unconditional right” to terminate a contract employee would not extend to insulating the employer from liability if it terminated the individual for a constitutionally impermissible reason or purpose.

The decision is posted on the Internet at:
___________________ 


The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 
___________________


Saturday, March 26, 2016

Selected reports issued by the Office of the State Comptroller during the week ending March 26, 2016


Selected reports issued by the Office of the State Comptroller during the week ending March 26, 2016
Click on text highlighted in color to access the entire report 

Municipal Audits released:

Town of Hempstead Sanitary District No. 1 - Selected Financial Activities 

Niagara Falls Water Board – Financial Management 

City of Olean – Procedures Related to Obligations to Fund Operating Deficits 


School Audits released: 

Burnt Hills-Ballston Lake Central School District – Leave accruals and separation payments 

Ellenville Central School District – Financal Condition 


Mount Pleasant-Blythedale Union Free School District – Short-Term Borrowing and Purchasing 



Mobil must include Climate Change Resolution in Shareholder Vote
Comptroller Thomas P. DiNapoli, as Trustee of New York State Common Retirement Fund, and the Church of England co-filed a shareholder proposal at ExxonMobil in December, asking the company to assess how the worldwide effort to rein in global warming would impact its business. In response, ExxonMobil sought clearance from the Securities and Exchange Commission (SEC) to block DiNapoli’s proposal from a shareholders’ vote at its annual meeting. Wednesday, the SEC rejected that request.


Agreements reached on Corporate Political Spending
New York State Comptroller Thomas P. DiNapoli announced that five Fortune 500 companies – Coca-Cola Enterprises, Raytheon, Waste Management, Union Pacific and Centerpoint Energy – have agreed to the New York State Common Retirement Fund’s request that they publicly report all direct and indirect corporate political spending.


Friday, March 25, 2016

A party to a stipulation of settlement cannot withdraw from the stipulation on the basis that it had "improvidently" agreed to it


A party to a stipulation of settlement cannot withdraw from the stipulation on the basis that it had "improvidently"agreed to it
State of New York v Public Employment. Relations Board, 2016 NY Slip Op 02131, Appellate Division, Third Department

Supreme Court dismissed New York State’s application seeking a review of the New York State Public Employment Relations Board’s [PERB] denial of the State's request to withdraw from a stipulation of settlement and vacate a PERB decision issued in consideration of such stipulation.

The Governor's Office of Employee Relations (GOER) and the Public Employees Federation [PEF] notified PERB's Director of Public Employment Practices and Representation [Director] that the parties had reached a stipulation of settlement whereby PEF had agreed to withdraw certain representation petitions pending before PERB and that GOER had agreed to the placement of 250 of the 2,000 relevant unrepresented positions in the Professional, Scientific and Technical Services [PST] negotiating unit.

The parties expressly agreed that the employees in the 250 positions, which were listed in an attached appendix, were "not assigned to any duties that would bring them within the definition of managerial and/or confidential under [Civil Service Law] §201.7(a)" and that the individuals in those positions "share[d] a general community of interest with other [s]tate employees in the [PST] [u]nit." Relying on the stipulation, the Director issued an interim decision consistent with the stipulation. 

GOER subsequently moved to vacate the stipulation and the interim decision on the basis that GOER “it had failed to provide sufficient guidance to the impacted agencies to allow them to make a determination as to whether the employees in the subject positions served in a managerial or confidential capacity." This failure, said the State, resulted in certain employees being identified in the stipulation as PST unit employees although they, in fact, continued to perform duties that are appropriately deemed managerial or confidential within the meaning of the Taylor Law.

The Director denied the motion and, ultimately, PERB granted PEF's petition to the extent of placing the 250 positions in the P S and  T unit. The State then commenced an CPLR Article 78 proceeding seeking review of PERB's determination. Supreme Court confirmed the determination and dismissed the petition; the Appellate Division sustained the Supreme Court’s ruling.

Noting that the court had a “limited scope of review in matters involving PERB's interpretation of the Civil Service Law,” the Appellate Division explained that a determination made by PERB would not be vacated “unless it was affected by an error of law or was arbitrary and capricious or an abuse of discretion.”

Although the State argued that PERB's refusal to vacate the stipulation and the interim decision was arbitrary and capricious because:

[1] The stipulation did not provide a sufficient factual basis to determine whether placement of the 250 positions into the PST unit was appropriate; and

[2] In issuing the interim decision, the Director relied on representations made in the stipulation without conducting an independent investigation into the appropriateness of the placement.

The Appellate Division was not persuaded by these argument, holding that while the Director is charged with investigating all questions relating to representation status, including whether the public employees to be included in the unit share a community of interest and "whether there is agreement among the parties as to the appropriateness of the alleged unit," a fair reading of the applicable regulatory provisions demonstrates that the Director is not required to conduct an independent inquiry into representation issues when the parties agree on unit placement.*

In the alternative, the State contended that PERB acted arbitrarily and capriciously by refusing to allow it to withdraw from the stipulation on the basis that it had "improvidently" entered into it.

This argument also proved unpersuasive. In the words of the Appellate Division, “[s]tipulations of settlement are favored by the courts and will not be disturbed unless they are sullied by fraud, collusion, mistake or accident." Citing Da Silva v Musso, 53 NY2d 543, the court said that a stipulation may not be invalidated on the basis of unilateral mistake where the mistake arose out of a party's failure to ascertain facts that were available at the time that it entered into the stipulation.”

The same general principle applies with respect to collective bargaining agreements. In the Matter of the Arbitration between City of Plattsburgh and Plattsburgh Police Officers Union AFSCME Local 82, 250 AD2d 327, leave to appeal denied, 93 NY2d 803, the Appellate Division, in effect, held there is no judicial or quasi-judicial cure for “negotiator's remorse” should a party agree to a lawful contract provision in the course of  collective bargaining and subsequently claim it agreed to the provision “by mistake.”

The State’s “sole basis” for seeking rescission of the stipulation, said the court, was that it failed to provide the training necessary to determine whether an employee was performing in a managerial or confidential capacity and that it, therefore, "ha[d] reason to believe that certain of the employees continue[d] to perform duties that are appropriately deemed managerial or confidential."**

Noting that the parties had entered into the stipulation of settlement some 2½ years after PEF filed the triggering representation petition with PERB, the Appellate Division opined that the State “had sufficient time to investigate and discover the nature of the duties assigned to the employees in the 250 at-issue positions, and its failure to do so in a timely manner does not warrant invalidation of the stipulation of settlement.”

Another point to remember. From time to time a "position" may be referred to as a "managerial" or "confidential" position. However it is not the position  in which an incumbent serves that determines the individual's "managerial" or "confidential" status.The relevant law clearly provides that “individuals” rather than “positions” are to be designated managerial or confidential, which designation is to be based on the nature of the duties being performed by the individual rather than on the basis of the “title” of the position in which the individual serves.

§201.7[a], in pertinent part, states that “Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment. Employees may be designated as confidential only if they are persons who assist and act in a confidential capacity to managerial employees described in clause (ii).”

The only positions designated managerial or confidential in Article 14 of the Civil Service Law, the Taylor Law, in terms of  “title” are set out in Civil Service Law §201.7[b].

§201.7[b] provides that “For the purposes of this article, assistant attorneys general, assistant district attorneys, and law school graduates employed in titles which promote to assistant district attorney upon admission to the bar of the state of New York shall be designated managerial employees, and confidential investigators employed in the department of law shall be designated confidential employees.”

* The stipulation of settlement reflected that the parties agreed that the employees to be included in the unit, whose positions were listed in an appendix, did not perform duties that fell under the classification of managerial or confidential and that they shared a community of interest with the employees in the PST unit.

** The court also commented that the State “did not identify those employees that they assert were improperly placed into the P S and T unit or provide any evidence to substantiate its conclusory claims.”

The decision is posted on the Internet at:


Thursday, March 24, 2016

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress


Probationer challenging dismissal from the position claims to have suffered extreme emotional distress
Petkewicz v Dutchess County Dept. of Community and Family Servs., 2016 NY Slip Op 01854 [Action I]
Petkewicz v Dutchess County Dept. of Community and Family Servs., 2016 NY Slip Op 01819 [Action II]

Susan Petkewicz filed two lawsuits against the Dutchess County Department of Community and Family Services in Supreme Court. In the first, Action I, Petkewicz asked Supreme Court to annul the termination of her employment during her probationary period. In the second,  Action II,  Petkewicz sued to recover damages, alleging the intentional infliction of extreme emotional distress arising out of the termination of her employment as a probationary employee with the Dutchess County Department of Community and Family Services.

Supreme Court dismissed both Action I and Action II. Petkewicz appealed both decisions but the Appellate Division affirmed both Supreme Court rulings.

Action I

Addressing Petkewicz’s appeal concerning the merits of her termination from her probationary employment, the Appellate Division said that Petkewicz had received three written appraisals of her performance, the last two of which rated her performance as unsatisfactory and ultimately she was terminated prior to the expiration of the 12-month probationary period.

Noting that a probationary employee "may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law,"*the Appellate Division, citing Lane v City of New York, 92 AD3d 786,  said “Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason.” Further, said the court, the employee has "the burden of raising a material issue as to bad faith or illegal reasons, and conclusory allegations of misconduct or unlawfulness are insufficient to meet this burden."

The Appellate Division concluded that Petkewicz failed to meet her burden of raising a material issue as to bad faith or any other improper reason for her discharge, explaining that the record demonstrated her termination prior the satisfactory completion of her probationary period “had a rational basis, and that her allegations to the contrary were either conclusory or speculative in nature.”

Action II

In addressing Petkewicz’s appeal concerning the alleged “infliction of emotional distress the Appellate Division noted that in Klein v Metropolitan Child Services, Inc., 100 AD3d 708, that court held "The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress"

Petkewicz claimed that her supervisor, Diane Malone, “was overtly hostile, failed to provide her with meaningful mentoring and constructive feedback, and improperly prejudged her ability to perform her work duties, leading to her discharge.” Petkewicz also contended that the Department acquiesced in Malone's wrongful conduct, which was “extreme and outrageous,” and that such conduct was intended to and did cause her extreme emotional distress.

The Appellate Division, affirming the Supreme Court’s decision granting the Department’s motion to dismiss Petkewicz’s complaint, said that “Even accepting as true the allegations in the complaint regarding the defendants' conduct, and according the plaintiff the benefit of every possible favorable inference, the defendants' conduct was not so extreme or outrageous as to satisfy the first element of intentional infliction of emotional distress.”

Addressing another issue raised in Supreme Court by Petkewicz, the Appellate Division rejected Petkewicz’s argument that Supreme Court should have recuses itself, holding that “Supreme Court providently exercised its discretion in denying [Petkewicz’s] cross motion for recusal,” explaining that [1] Petkewicz failed to establish that there was a basis for recusal pursuant to Judiciary Law §14 and [2] failed to set forth any proof of bias or prejudice on the part of the Supreme Court Justice.

* Case law indicates that a probationary employee may be terminated at any time after the completion of his or her minimum period of probation and prior to his or her completion of the maximum period of probation unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position [see York v McGuire, 63 NY2d 760].

The decision in Action I is posted on the Internet at:

The decision in Action II is posted on the Internet at:

Wednesday, March 23, 2016

Removing a volunteer firefighter from his or her position


Removing a volunteer firefighter from his or her position
Dolan v New Hyde Park Fire Dept., 2016 NY Slip Op 01844, Appellate Division, Second Department

Michael Dolan, Sr., an elected member of the New Hyde Park Board of Fire Commissioners [Board], also served as a member of the New Hyde Park Fire Department [Department].

The Board filed disciplinary charges against Dolan pursuant to General Municipal Law §209-L* alleging that he had violated certain Rules and Regulations of the New Hyde Park Fire District. After a disciplinary hearing conducted by a hearing officer, the Board adopted the findings and recommendation of the hearing officer and dismissed Dolan from his position as a volunteer firefighter with the Department.

Dolan filed a petition pursuant to CPLR Article 78 against the Department and the Board seeking a court order [1] annulling the determination of the Board and [2] compelling the Board and the Department to reinstate him to his former position.

Dolan contended that the actions for which he was removed from his position as a firefighter were actions taken in his capacity as an elected Commissioner on the Board rather than as a member of the Department and, therefore, the only permissible remedy was to initiate proceedings to remove him as a Commissioner pursuant to Public Officers Law §36** rather than by taking disciplinary action pursuant to General Municipal Law §209-L.

Supreme Court granted Dolan’s petition; the Board, and the Department appealed.

The Appellate Division reversed the lower court’s ruling, explaining that “the fact that Dolan could also have been removed from his position as Commissioner pursuant to Public Officers Law §36 did not abrogate the Board's right to remove him as a member of the fire department” pursuant to General Municipal Law §209-L."

As to the merits of the disciplinary action taken against Dolan, the court said that “the fire district sufficiently established that Dolan violated a provision of the Rules and Regulations of the New Hyde Park Fire District that "[a]ll members shall conduct themselves at all times in such a manner so as not to bring disgrace or adverse criticism or ill feeling against the Company, Department, or District . . . Violation of this rule will be grounds for dismissal." This provision, said the court, applied to Dolan as a firefighter.

In addition, the Appellate Division ruled that “The evidence was also sufficient to establish that Dolan violated the provision of the Supplemental Rules of Conduct and Procedure …. [that] [i]t shall be the duty of all members and officers to refrain from taking district, department and company property without proper authorization."

As to Supreme Court’s opining that the Board's determination regarding Dolan’s dismissal should have been annulled on the basis that the three Commissioners who rendered it should have each recused themselves, the Appellate Division said that “there was no evidence that those three Commissioners had such personal involvement as would mandate recusal.”

However, said the court, the Supreme Court did not reach the issue concerning the “excessiveness of the punishment” imposed on Dolan. Accordingly the Appellate Division, citing Featherstone v Franco, 95 NY2d 550, remitted the matter to the Supreme Court for consideration of whether the penalty of dismissal “was so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness”.

* §209-L provides that “The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.”

** §36 of the Public Officer Law provides for the removal of a town, village, improvement district or fire district officer by a court.

The decision is posted on the Internet at:
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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html 
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Tuesday, March 22, 2016

Individual cannot be found guilt of misconduct not charged in the notice of discipline


Individual cannot be found guilt of misconduct not charged in the notice of discipline
Wise v New York City Human Resources Admin., 2016 NY Slip Op 01775, Appellate Division, First Department

Iris Wise was terminated from her position after being found guilty of participating in a scheme to improperly transfer cases to the East End Job Placement Center in violation of New York City’s Human Resources Administration Code of Conduct §III(1), (4), (11) and (37) and other laws and directives.

Considering Wise’s appeal, the Appellate Division ruled that the finding that Wise violated Code of Conduct §III(11) must be vacated. The court explained that Wish had not been charged with violating that section and thus had no reasonable opportunity to respond to such a charge.

In contrast, the court said that with respect to the remaining charges, substantial evidence in the form of testimony at the hearing, admissions and documentary evidence, including investigation reports, case transfer documents, lists, emails, and regional performance results, supported the administrative determination by establishing that Wise, “a deputy director ….  knowingly and actively participated with her immediate supervisors in a scheme to transfer job placement cases from other agency centers …. so as to satisfy the agency's job-placement goals for East End Centerand to reduce agency pressure on the center arising from years of under-performance.”

As to the penalty imposed by the appointing authority, termination, the court said that “under the circumstances,” such a penalty did not shock one's conscience or sense of fairness, citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_01775.htm
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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
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Monday, March 21, 2016

Administrative determination annulled after being found to be arbitrary and capricious and in violation of the relevant regulation


Administrative determination annulled after being found to be arbitrary and capricious and in violation of the relevant regulation
Niang v New York City Dept. of Educ., 2016 NY Slip Op 01770, Appellate Division, First Department

The New York City Department of Education permanently revoked Babacar Niang’s certification to drive a school bus because he failed to submit to a drug test on the day on which he was involving in an accident. The Appellate Division unanimously annulled, the Department’s decision, reinstated Niang’s certification and  remanded the matter “for a determination of incidental damages, if any.”

The Appellate Division, noting that the appropriate test in this action was  “the arbitrary and capricious standard of review,” held that the Department’s determination revoking Niang's certification to drive a school bus was “arbitrary and capricious and contrary to its own regulation.”

The court explained that Chancellor's Regulation C-102, reflecting its new policy, does not provide for revocation where a bus driver fails to take a nonrequired drug test. The C-102 provisions requiring a postaccident test explicitly apply only when the accident involves loss of life, bodily injury, disabling damage to the vehicle, or after a third accident within any twelve month period. However, said the Appellate Division, that provisions does not apply here in that it was Niang’s first accident and that no one was injured and no vehicle was disabled.

The decision also notes that Niang “took a drug test within 24 hours and that the test was negative.”

Accordingly, said the court, Niang “is entitled to a hearing to determine whether any incidental damages resulted” as a result of the Department’s revocation of his certification to operate a school bus.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_01770.htm

Saturday, March 19, 2016

Selected reports issued by the Office of the State Comptroller during the week ending March 19, 2016


Selected reports issued by the Office of the State Comptroller during the week ending March 19, 2016
Click on text highlighted incolor to access the entire report

Comptroller DiNapoli and A.G. Schneiderman Announce Conviction of Atlanta Resident in Pension Fraud Case
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction and sentence of Richard L. Cook, III, 58, a resident of Atlanta, for the crime of Grand Larceny in the Third Degree, for stealing over $204,000 in state pension benefits issued to his deceased mother.


State Comptroller Thomas P. DiNapoli announced his office completed audits of the following school districts and BOCESs







New York Stateschool aid trends

Over the past ten years, state aid to school districts has increased $6 billion to $23.3 billion in 2015-16, according to a report issued today by State Comptroller Thomas P. DiNapoli which examined school aid patterns and trends in
New York.

“School aid is the largest single state-funded expenditure within the budget,” said DiNapoli. “As the start of a new fiscal year approaches, this report is intended to provide policymakers and the public additional information on education funding in
New York.”

Over the past decade, school aid has averaged 23.6 percent of state-funded expenditures. The Division of the Budget projects this share to increase to 25.6 percent over the next three years.

The largest component of state school aid is Foundation Aid, a statutory formula enacted in 2007 as the result of a ruling by the State Court of Appeals in the Campaign for Fiscal Equity lawsuit. After the ruling, the state committed to spend an additional $5.5 billion, using a new, transparent funding formula phased in over four years, adjusting aid for differences in both capacity of districts to raise local taxes and costs to provide services.

Following increases of just over $1 billion in school years ending in 2008 and 2009, state budgets during and just after the recession froze Foundation Aid. Starting in the 2012-13 state budget, Foundation Aid distributions increased by between $112 million and $428 million per school year.

Current funding for Foundation Aid is $15.9 billion, compared to the original projection of $18.1 billion by the fourth year of the program.

DiNapoli’s report also shows that starting in 2010-11, the state reduced school aid from levels otherwise driven by statutory formulas by $1.4 billion. These reductions – known as the Gap Elimination Adjustment, or GEA – grew to $2.6 billion in SY 2011-12. The GEA helped
New York to close a multi-billion dollar budget deficit by assigning a portion of the state’s funding shortfall to all school districts as reductions in state aid.

In each year since 2012-13, the state has reduced the impact of the GEA by including a separate formula for unrestricted “GEA Restoration Aid” in the budget. This formula has had different calculations in each year, but the net impact over the past four years has been to reduce the GEA’s effect on high-need districts more quickly than on average or low-need districts.

For the upcoming 2016-17 state fiscal year, the Executive Budget proposes a total school funding increase of $991 million, including $266 million in Foundation Aid and the elimination of the GEA entirely for 200 mostly high need districts and reducing it by at least 30 percent for the remaining districts.

Local revenues, predominantly property tax collections, are the largest source of school funding. The relative share of school funding by source has also fluctuated in recent years, with the state’s share peaking at 39.1 percent in 2008-09 and dropping to 33.7 percent by 2011-12. Last year, the state’s share was 35.9 percent, consistent with the average for the ten most recent years, while local revenues made up 59.7 percent of total funding last year.

DiNapoli’s report also highlighted:

• Total state aid funding for schools is projected to climb to nearly $28 billion by 2019-20;

• Expense-based aids – state funding for items such as textbooks, student transportation and the construction of school facilities – have not seen major formula changes during the last ten years;

• In 2015-16, lottery aid is expected to total $3.2 billion, approximately 13.8 percent of overall state expenditures for school aid; and

• Revenue generated from new casinos that will be dedicated to school aid is expected to reach $168 million in 2019-20.

For more information, read the full report: New York State School Aid: Two Perspectives:
http://www.osc.state.ny.us/localgov/pubs/research/schoolaid2016.pdf


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

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

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

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

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

Caution:

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

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