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NYPPL's most recent posting is set out below.

November 30, 2018

Employee's termination recommended after being found guilty of multiple charges and specifications


Employee's termination recommended after being found guilty of multiple charges and specifications

A computer associate employed by the New York City Department of Transportation was charged with multiple act of misconduct.

OATH Administrative Law Judge Ingrid M. Addison found the employee guilty of charges and specifications alleging the employee's:

● Being late and absent without leave on numerous occasions;

● Sleeping and lounging on the job on at least 10 occasions;

● Failing to promptly perform her assigned tasks on two occasions;

● Failing to comply with her supervisor’s directive to attend a training session;

● Being on social media on the job via the use of the office computer;

● Becoming loud and disruptive to her supervisor;

● Using Agency’s e-mail system to send abusive e-mails to recipients mainly comprised of her supervisors and directors;

● Sending false information about her director via e-mail which she copied to another New York City agency; and

● Failing to notify her supervisor, the office of labor relations, and the department of investigations that she had been arrested.

Judge Addison recommended that the Department impose the penalty of termination in view of the multitude acts of misconduct for which the employee had been found guilty.





November 29, 2018

Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law


Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law
Lance Carlson v. Charter Communications, LLC, USCA, 9th Circuit, No. 17-35917 

N.B. - In handing down this decision the 9th Circuit said "This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3."

§§50-46-320(4)(b) and 50-46-320 (5) of the Montana Marijuana Act [MMA] neither bars employers from prohibiting their employees from using marijuana nor authorizes wrongful termination or discrimination suits against employers.

After Charter Communications fired one of its employees, Lance Carlson, for his legal marijuana use outside of work, in violation of the company's employment policies set out in its employment handbook, Carlson sued Charter alleging wrongful termination and unlawful discrimination.

A Montana District Court dismissed Carlson's complaint and then refused to certify the question of whether these provisions of the MMA were constitutional to the Montana Supreme Court. Carlson appealed the Montana District Court's ruling.

The United States Circuit Court of Appeals, 9th Circuit, affirmed the Montana District Court's ruling explaining that:

 [1] the MMA does not preclude a federal contractor from complying with all the requirements of the Drug-Free Workplace Act (DFWA), 41 U.S.C. §8102; and 

   [2] the MMA does not violate the Montana constitution.*

The Circuit Court observed that MMA is "rationally related to Montana’s legitimate state interest in providing 'careful regulation of access to an otherwise illegal substance for limited use by persons for whom there is little or no other effective alternative' while avoid[ing] entanglement with federal law.” In addition, the Circuit Court, noting that the United States Congress had adopted an appropriations rider currently restricting the Department of Justice from spending funds to prosecute individuals who comply with state marijuana laws, opined that "this temporary rule does not undercut Montana’s legitimate state interests."

In the words of the Circuit Court, "[t]he district court did not abuse its discretion in denying Carlson’s request to certify the question whether sections 50-46-320(4)(b) and (5) are constitutional to the Montana Supreme Court, because it is not an unclear question of state law appropriate for certification."

Lisa M. Schaffer, Esq., in an article posted on the Internet by FindlLaw,** notes that "A state could have a Marijuana Act that specifically prohibits employers from requiring drug-free employees. For instance, in 2018, Maine became the first state to protect workers and their non-workplace marijuana use by forbidding employers from drug testing for marijuana. Specifically, Maine's Act to Legalize Marijuana forbids employers from discriminating against employees based on their legal marijuana use, though it does allow employers to prohibit the use and possession of marijuana 'in the workplace.'" 

* The Carlson decision is posted on the Internet at:



November 28, 2018

Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to §75 of the Civil Service Law


Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to Civil Service Law §75 
O'Connor v Cutting, 2018 NY Slip Op 07379, Appellate Division, Third Department

An Essex County deputy sheriff was served four disciplinary charges pursuant to Civil Service Law §75. The appointed Hearing Officer partially sustained two of the four charges and dismissed all the remaining charges. As to the penalty to be imposed, the Hearing Officer recommended that the deputy sheriff be suspended without pay for two months.

The Sheriff then appointed the County Manager to review the §75 Hearing Officer's findings and recommendation and make the final determination. After reviewing the hearing transcripts and exhibits, the City Manager issued a determination that rejected the §75 Hearing Officer's findings, sustained three of the charges and recommended that the deputy sheriff's employment be terminated.

The Sheriff adopted the City Manager's determination and recommended penalty and terminated the deputy sheriff'. The deputy sheriff challenged the Sheriff's decision and sought a court order annulling the City Manager's determination finding her guilty of the disciplinary charges or, in the alternative, an order vacating the penalty of dismissal imposed by the Sheriff. Supreme Court transferred the matter to the Appellate Division, which affirmed the Sheriff's decision.

Citing Matter of Kuznia v Adams, 106 AD3d 1227, the court explained that "The standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole."

Addressing the deputy sheriff's argument that the City Manager had "improperly substituted his own credibility determinations for those of the Hearing Officer," the Appellate Division said that the credibility determinations of a hearing officer are not binding upon the official charged with making a final determination, "who, in the exercise of his or her duty to weigh the evidence and resolve conflicting testimony, may make different factual findings and conclusions, provided they are supported by substantial evidence."

Finding that the City Manager had provided specific reasons for his credibility determinations that were supported by logical inferences drawn from the testimony and the additional evidence that had been adduced at the hearing and that the deputy sheriff was "the least credible witness," the Appellate Division said it found that the City Manager's "factual findings and conclusions" were supported by substantial evidence.

As to the penalty imposed on the deputy sheriff, dismissal from her position, the Appellate Division said that it found that the penalty of termination was "not excessive."

The court said that a penalty imposed by the appointing authority following a §75 disciplinary hearing must the upheld "unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," with due consideration given as to "whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

Finally the Appellate Division observed that it was mindful that great leeway must be accorded in matters concerning police discipline because "a higher standard of fitness and character pertains to police officers than to ordinary civil servants" and, inasmuch as strict discipline is essential for law enforcement administration, "the penalty of dismissal has been routinely upheld for officers who have disobeyed direct orders."

Here, said the court, "we cannot say that dismissing petitioner from her position as a deputy sheriff for disobeying a direct order shocks our sense of fairness."

The decision is posted on the Internet at:


November 27, 2018

Employee terminated for using department vehicle for non-work related purposes


Employee terminated for using department vehicle for non-work related purposes

A civil engineer with the New York City Department of Transportation was charged with repeatedly using a Department van for non-work related purposes; altering trip log sheets; misrepresenting his use of the vehicle by omitting entries on the trip log sheets; and failing to follow the directives of his supervisor.

OATH Administrative Law Judge Kara J. Miller did not credit employee’s claim that his supervisor had given him permission to use the van to run his personal errands and sustained those charges.

Judge Miller, however, found that the appointing authority did not prove that the employee falsified his time records or that he fraudulently received compensation for time he did not work.

The ALJ recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.


November 26, 2018

The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence


The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence
Michel v City of Lackawanna, 2018 NY Slip Op 02070, Appellate Division, Fourth Department

James L. Michel, Jr. commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order reinstating "the compensation and benefits" to which he claim he was entitled pursuant to a contract between the parties. Subsequently Michel moved for summary judgment on the ground that he was unlawfully denied the procedural protections due to him under §75 of the Civil Service Law.

Section 75 provides that certain civil servants "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges."

Supreme Court denied Michel's motion for summary judgment and he appealed the court's decision. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained that "[i]t is well settled" that §75 of the Civil Service Law "prescribes the procedures for removal of a protected employee charged with delinquencies in the performance of his [or her] job."

Citing NYS Office of Children and Family Services v Lanterman, 14 NY 3d 275, the Appellate Division said that it is undisputed that Michel "did not engage in any conduct that would have subjected him to allegations of incompetence or misconduct" and concluded that §75 of the Civil Service Law was inapplicable in his situation.

In Lanterman the Court of Appeals held that the grievances brought by two employees, Lanterman's and Ortiz's, challenging their dismissal from their respective positions were not subject to arbitration because Lanterman's and Ortiz's dismissals were not for disciplinary reasons but because the employees' lacked the qualifications necessary for their respective positions. 

In addition, the  Court of Appeals noted it "approved the distinction made by the Appellate Division in Mandelkern v City of Buffalo, 64 AD2d 279, between issues of 'job performance, misconduct or competency,' which are subject to Civil Service Law disciplinary procedures, and 'a qualification of employment,' which is not."

The Michel decision is posted on the Internet at:

The Lanterman decision is posted on the Internet at:


November 25, 2018

Employee terminated for using department vehicle for non-work related purposes

Employee terminated for using department vehicle for non-work related purposes

A civil engineer with the New York City Department of Transportation was charged with repeatedly using a Department van for non-work related purposes; altering trip log sheets; misrepresenting his use of the vehicle by omitting entries on the trip log sheets; and failing to follow the directives of his supervisor.

OATH Administrative Law Judge Kara J. Miller did not credit employee’s claim that his supervisor had given him permission to use the van to run his personal errands and sustained those charges.

Judge Miller, however, found that the appointing authority did not prove that the employee falsified his time records or that he fraudulently received compensation for time he did not work.

The ALJ recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.


November 23, 2018

Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests


Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests
Rockland Co. Correction Officers BA and Rockland Co., 30 PERB 3019

The Correction Officers' Benevolent Association of Rockland County filed an unfair labor practice charge with PERB complaining that the Rockland County Sheriff had issued a directive that unilaterally ended a procedure under which all written leave requests were routinely approved regardless of the number of officers on leave from the same shift.

The Association also charged that for the first time "a quota" on the number of officers permitted to take certain types of leave simultaneously was unilaterally imposed.

PERB sustained the administrative law judge's dismissal of the charge. It noted that the relevant collective bargaining agreement provided that "personal leave may be drawn only upon written request ... at a time convenient to and approved by the Sheriff; provided, however, that personal leave allowed for religious observance shall be granted on the days and hours required, insofar as the same may be granted without interference with the proper conduct of government functions."

PERB said that the contract gave the Sheriff broad discretion to grant or deny leaves based on his convenience and the proper conduct of government functions and that the Association had waived its right to complain about the Sheriff's exercising his discretion.

PERB concluded that the directive issued represented the exercise of a negotiated right, it was bilateral in nature and did not violate the employer's duty to bargain, which had been previously satisfied by agreement.


November 21, 2018

Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties



Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties
Brown v Bratton, 2018 NY Slip Op 07541, Appellate Division, First Department

Subdivision 1 of §72 of the Civil Service Law, Leave for ordinary disability, provides, in pertinent part, that "[w]hen in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workers' compensation law, the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction. Written notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position shall be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

Supreme Court denied Lisa Brown's petition seeking to annul and vacate New York Police Department's [NYPD] decision to refer her for a fitness-for-duty evaluation that ultimately resulted in Brown's suspension without pay for 58 days for "disobeying orders to sign Health Insurance Portability and Accountability Act [HIPAA] releases."

Brown alleged that NYPD had required her "to submit to a fitness-for-duty evaluation without complying with Civil Service Law §72." Supreme Court ruled that NYPD's actions were not arbitrary and capricious and Brown's allegations were not supported by substantial evidence.

The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division decided that Brown failed to show that §72 was implicated in the New York Police Department [NYPD] decision to refer her for a fitness-for-duty evaluation. Although noting that §72 clearly states that "its procedural protections are triggered when an employer has determined that an employee is unfit for duty, at which point the employee is entitled to written notice of the grounds for the determination and an opportunity to challenge those grounds at a hearing," the Appellate Division said that witnesses for the NYPD had testified that, at the time Brown was referred for evaluation, NYPD [1] had not reached this threshold determination and [2] that the purpose of the evaluation was to insure, Brown's "worrisome on-the-job conduct notwithstanding", that she remained fit for duty.

The Appellate Division said that NYPD could not have provided Brown with the written notice to which she claims she was entitled because "it had neither adjudged her unable to perform her duties nor placed her on leave."

In any event, §72.1 vests such decision making in "a medical officer selected by the civil service department or municipal commission having jurisdiction," and requires the appointing authority to provide "[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position ... be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

§72.1 further provides that "[i]f, upon such medical examination, such medical officer shall certify that such employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority shall notify such employee that he or she may be placed on leave of absence. An employee placed on leave of absence pursuant to this section shall be given a written statement of the reasons therefor. Such notice shall contain the reason for the proposed leave and the proposed date on which such leave is to commence, shall be made in writing and served in person or by first class, registered or certified mail, return receipt requested, upon the employee. Such notice shall also inform the employee of his or her rights under this procedure. An employee shall be allowed ten working days from service of the notice to object to the imposition of the proposed leave of absence and to request a hearing."

In contrast, §72.5 provides that "if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it may place such employee on involuntary leave of absence immediately."

As to suspending an employee "for disobeying orders to sign HIPAA releases," it would appear that such an offense would result were the employee to decline to sign a HIPAA release requested by the medical officer selected by the civil service department or municipal commission having jurisdiction to evaluate the employee.

The Appellate Division found that NYPD's orders "were tailored to receive information from the medical providers that [Brown] had identified and, moreover, were further limited by subsequent agreement."

NYPD, said the court, "showed that the disclosure they ordered [Brown] to provide was appropriate in light of public safety considerations in view [of Brown's position as a] Supervisor Police Communication Technician, insuring that emergency 911 calls were immediately and accurately routed to the appropriate emergency responders, implicated public safety issues, giving the NYPD an interest in the records sufficient to outweigh [Brown's] privacy rights," citing O'Connor v Pierson, 426 F3d 187.

The decision is posted on the Internet at:




November 20, 2018

Waiving a teacher's right to tenure


Waiving a teacher's right to tenure
Costello v East Islip UFSD, 250 A.D.2d 846

Is tenure for teachers an anachronism? A number of school districts have considered eliminating it. Thus far the courts have declined to allow them to do so.

In Conetta v Patchogue-Medford Union Free School District, 165 Misc.2d 329, a New York State Supreme Court ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period because it believed that "that tenure at the elementary and secondary school level was essentially guaranteed job security ... coupled with automatic salary increases."

Apparently mindful of the Conetta ruling, a Board of Education decided to take a different tack in an effort to avoid having to give newly hired teachers tenure upon their satisfactory completion of probation: the East Islip Union Free School District's Board adopted a resolution providing that all new teachers hired by the School District were to be employed under individual contracts providing for specified terms of employment.

These contracts specified that the newly appointed teachers were employed "in non-tenure-bearing positions." To emphasis the point, the contracts also included provisions intended to constitute "waivers" of the probation and disciplinary rights provided to teachers in the Education Law.

Lynn Costello and a number of other newly appointed teachers had signed these agreements. They subsequently decided to challenge these terms in their contracts and asked a State Supreme Court judge to do three things:

 (1) Annul the contracts that they had signed;

(2) Issue an order compelling the District to appoint them as probationary teachers pursuant to Education Law §3012; and

(3) Enjoin the District from "requiring teaching candidates to execute waivers of tenure and other statutory rights as a condition of employment."

The Court granted the teachers' petition in its entirety.

In so doing, the Court rejected the District's argument that the teachers' waivers were valid because the teachers had signed their respective agreements "knowingly and voluntarily."

On the issue of whether the waiver was "voluntary" or not, the Court said that under the circumstances, the contention that the waivers were voluntary was questionable since there is no indication that any teacher who refuses to agree to such a waiver will be hired.

While the District cited Feinerman v BOCES, 48 NY2d 491, in support of its position, the Court ruled that the Feinerman decision did not control under the facts of this case.

Finding that the Feinerman case involved one teacher of adult education in a BOCES program, the Court decided that it was not applicable to the Costello situation because the contracts at issue involve all teachers of children that were to be hired in a union free school district. 

Also, in Yastion v Mills, the  Appellate Division decided that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

Commenting that the Board's stated purpose in promulgating its resolution was to improve education by removing the District and its teachers from the purview of the Education Law's tenure provisions, the Court said that "this goal can be achieved only by the Legislature's amendment of the Education Law, and not by an act of a local Board of Education.

The Appellate Division agreed, explaining although the Board of Education of the East Islip Union Free School District correctly contends that a teacher's rights with respect to tenure are waivable when the waiver is freely, knowingly, and openly arrived at without the taint of coercion or duress, this does not operate to give the Board the authority to eliminate the tenure system altogether. Indeed, observed the court, the tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal.

Characterizing  the system proposed by the Board, i.e., tenure by contract terminating automatically at the expiration of the contract, as the very system sought to be eliminated by the enactment of the tenure statutes of the Education Law and the change to a system of permanence, the Appellate Division opined that the resolution implementing this system was improper and the petition was properly granted.

In the Conetta case, State Supreme Court Judge Lockman suggested that under certain circumstances it might be possible to eliminate tenure. The Court said that if a school district wishes to stop granting tenure, it could make such a demand in the course of collective negotiations.

Judge Lockman stated that "the Taylor Law allows negotiations for the inclusion of a 'no tenure' clause in the collective bargaining agreement." Judge Lockman also decided that a school board "could not withhold tenure at the end of the probationary period because of fiscal concerns unrelated to the qualifications of the teacher seeking such status."

Judge Lockman's full opinion follows is set out below:

The petition of Lynn Costello and the other petitioners pursuant to CPLR Article 78, seeks a judgment annulling the respondent's July 3, 1996, resolution and the petitioner-teachers' individual contracts executed pursuant to the resolution, compelling the respondents to appoint the petitioner-teachers as probationary teachers pursuant to Education Law 3012, and enjoining the respondent from requiring teaching candidates to execute waivers of tenure and other statutory rights as a condition of employment. The petition is granted in its entirety.

  The resolution at issue provides that all new teacher hirees of the East Islip Union Free School District will be employed pursuant to individual contracts providing for specified terms of employment in non-tenure-bearing positions. The contracts signed by the various petitioner-teachers contain a waiver of rights as set forth in, inter alia., Education Law §§3012, 313 and 3020, that provide for probation, tenure and certain procedures for dismissal.

The respondents' (and the amicus curiae's) reliance upon Mtr. of Feinerman v. BOCES, 48 NY2d 491 (1979) for the assertion that a waiver of the Education Law's protection is valid if it is knowingly and voluntarily made is misplaced. The Feinerman case involved one teacher of adult education in a BOCES program and is not applicable to the instant proceeding where the contracts at issue involve all teachers of children that were to be hired in a union free school district. The respondent's stated purpose in promulgating the resolution was to improve education by removing the the respondent and *its teachers from the purview of the Education Law's tenure provisions, however, this goal can be achieved only by the Legislature's amendment of the Education Law, and not by an act of a local Board of Education. There is no ruling of any Court offered by the respondent that supports the blanket eradication of the safeguards provided in the Education Law that the respondent seeks. Further, the characterization of the waiver as "voluntary" is questionable since there is no indication that any teacher who refuses to agree to such a waiver will be hired.

In view of the above, the respondent's arguments concerning the standing of certain petitioners need not be addressed.

  Submit judgment on notice.

Vacating arbitration awards


Vacating arbitration awards
West Babylon UFSD v West Babylon Teachers Assoc., 237 A.D.2d 615

Article 75 of the Civil Practice Law and Rules sets out the limited grounds available to a party who wishes to challenge an arbitrator's award. The West Babylon case demonstrates the fact that courts apply the limitations set out in Article 75 quite literally and rarely find overturning or modifying an arbitration award justified.

An arbitrator said that the Taylor Law Agreement negotiated by the West Babylon Union Free School District and the West Babylon Teachers Association required the District give teachers notice of the disciplinary charges filed against them.

Finding that no notice of disciplinary charges had been given to a teacher, Martha Kolodkin, that the District had earlier "demoted," the arbitrator ruled that the District had violated the agreement because it had it demoted Kolodkin "without just cause." The arbitrator's award directed the District reinstate Kolodkin to her former position without back pay.

The arbitrator apparently decided that Kolodkin's demotion constituted disciplinary action within the meaning of the collective bargaining agreement. The District attempted to vacate the award on the grounds that in making the award the arbitrator had exceed his authority by interpreting the agreement. A Supreme Court judge confirmed the award and dismissed the District's petition to set it aside.

The Appellate Division upheld the lower Court's ruling in favor of the Association. In so doing, the Court said that it is well settled that an arbitration award will not be set aside unless it is against public policy, totally irrational or in excess of the arbitrator's powers.

As to the specific objection to the award raised by the District, in this instance the Appellate Division decided that interpreting the collective bargaining agreement between the parties was consistent with the arbitrator's authority.

 In addition, courts do not have jurisdiction to review interlocutory arbitration decisions -- a decision made in the course of an arbitration but which does not constitute a final decision of the whole controversy.

A court's vacating an interlocutory decision by an arbitrator was the subject of an appeal in Local 100, Transport Workers Union v NYS Transit Authority.

In the course of an arbitration between parties, Local 100 said it would not participate at the scheduled hearing unless it received "certain discovery" materials. When the arbitrator directed that Local 100 adhere to the arbitration dates that had already been scheduled, the Local filed an Article 75 action to vacated the arbitrator's order directing it to adhere to the hearing date schedule.

Although the Supreme Court ruled that the arbitrator had no jurisdiction over scheduling matters, the Appellate Division disagreed, reversing that ruling. The Appellate Division said that courts lacked the statutory authority to vacate [an] interlocutory procedural ruling.

Transfer of personnel


Transfer of personnel
Hill v City of New York, NYS Supreme Court, April 1997, Not selected for publication in the Official Reports

The Hill case concerns the survival of benefits enjoyed by individuals who are employed by another employer following the "transfer of function" from their former employer to a new employer. Here the right in question involved a "non-resident's exemption" from having to pay the equivalent of New York City income tax as a term or condition of employment with the City.

The issued arose following the transfer of Emergency Medical Service operations from the New York Health and Hospitals Corporation, a public benefit corporation independent of the City of New York, ("HHC") to the Fire Department of the City of New York ("FDNY").

The City requires that every person seeking employment with it sign a "§1127" agreement. This agreement provided that if an individual is or  becomes a nonresident during his or her employment by the City, he or she would pay an amount equal to the personal income tax otherwise payable by City residents. Although there were certain exceptions, HHC had essentially declined to follow this policy insofar as its employees were concerned.

Following the transfer of the EMS function to FDNY, the City decided that the 3,250 individuals transferred from HHC to FDNY were required to sign a §1127 agreement as a condition of their continued employment by the City.

District Council 37 [DC-37], the EMS personnel's collective bargaining agent, on the other hand, disagreed and filed an improper practice complaint with the City's Office of Collective Bargaining charging that the City's had improperly and unilaterally imposed a new term or condition of employment upon EMS personnel without the Union's agreement.

DC-37 simultaneously commenced an Article 78 proceeding seeking a judgment declaring that the City acted arbitrarily and capriciously in violation of §70(2) of the Civil Service Law and City Charter §1143. It addition, it contended that the City's action was an unconstitutional impairment of contract and a deprivation of property rights in violation of the due process clauses of the New York State and United States Constitutions. DC-37 sought a Court order compelling the City to repay any moneys deducted from the employees' paychecks under color of §1127 and to cease making any further "§1127" deductions.

The Court, citing Legum v Goldin, 55 NY2d 104. commented that the Court of Appeals has ruled that §1127 is not a tax, but an enforceable term and condition of employment with the City acting in its capacity as an employer. The Court of Appeals had decided that "... the [§1127] payments due to the City of New York are owed as a result of the contract entered into by the [employees] with the City and not as a result of an exercise by the City of its taxing authority," .

As to impact of Civil Service Law §70(2), it provides, in pertinent part, that "[u]pon the transfer of a function  ... officers and employees so transferred shall be transferred without further examination or qualification and shall retain their respective civil service classifications and status ... [including] full seniority credit for all purposes for service rendered prior to such transfer in the governmental jurisdiction from which transfer is made."

N.B. Longevity increments were determined by the Court of Appeals to be protected seniority rights [Town of Mamaroneck PBA, Inc. v New York State Public Employment Relations Board, 66 NY2d 722] while in Nickels v New York City Housing Authority, 208 AD2d 203, the Appellate Division held that the phrase "full seniority credit for all purposes" in §70(2) protected involuntarily transferred police officers against any diminution of pension rights.

Here the Court decided that although no additional qualifications were placed on EMS personnel by §1127, the City disregarded their seniority benefits when applying this Charter provision to them. Noting that these individuals had previously been exempted from the requirements of §1127 by HHC, the Court concluded that this exemption constituted a "substantial pecuniary benefit" based on a combination of their status as HHC employees and their many years of service with that agency.

The Court ruled that the individuals transferred to FDNY enjoyed a "protected benefit" and thus the City was arbitrary and capricious when it deprived them of "pecuniary benefit enjoyed for years" merely because of an administrative transfer of functions.

In addition, the Court said that although its ruling will result in non-uniformity in the income taxation of EMS employees based on residence, that has been true in the past and, even if a contrary ruling were issued, non-uniformity would exist as employees hired prior to the enactment of §1127 remain exempt from its provisions.

The full opinion follows:

The central issue in this Article 78 proceeding is whether the City of New York (the "City") acted arbitrarily and capriciously in applying New York City Charter (the "Charter") §1127 to certain previously exempt Emergency Medical Service ("EMS") personnel who were transferred from the New York Health and Hospitals Corporation ("HHC") to the Fire Department of the City of New York ("FDNY").

 The HHC "is a public benefit corporation independent of the City of New York(L 1969, ch 1016, 1 [New York City Health and Hospitals Corporation Act, 4, subd. I])" [Brennan v. City of New York, 59 N.Y.2d 791, 792 (1983)]. See, Unconsolidated Laws 7381 et. seq. Pursuant to that statute, in 1970 the City transferred its municipal hospitals to the HHC.

 §1127 (previously numbered §§820 and 822) adopted on January 4, 1973 provides as follows:

 "a. Notwithstanding the provisions of any local law, rule or regulation to the  contrary, every person seeking employment with the City of New York or any of  its agencies regardless of civil service classification or status shall sign an agreement  as a condition precedent to such employment to the effect that if such person is or  becomes a nonresident individual as that term is defined in §11-1706 of the  administrative code of the city of New York or any similar provision of such code,  during employment by the city, such person will pay to the city an amount by which  a city personal income tax on residents computed and determined as if such person  were a resident individual, as defined in such section, during such employment,  exceeds the amount of any city earnings tax and city personal income tax imposed  on such person for the same taxable period."

 Although the City corporation counsel opined in a 1973 letter that the §was applicable to HHC employees in that HHC was an "agency" of the City, HHC did not then concur with this position and thus did not then apply its provisions to any of its employees.

 In a change of policy, on October 26, 1982 HHC issued a memorandum declaring that the §would be applied to any HHC employee hired on or after November 1, 1982 and to all then current employees who moved out of the City after that date. However, in February 1985 HHC reversed that position with respect to its EMS employees who were hired prior to November 1, 1982 and who subsequently moved outside of the City and it directed a refund of any deductions already imposed on such employees. On April 4, 1989, the HHC issued a further memorandum specifically limiting §1127's impact on Group 12 EMS non-managerial employees and applied the Charter provision only to such employees hired on or after November 1, 1982 who were non-residents on their date of hire or who later moved out of the City. Petitioners, Group 12 nonmanagerial EMS employees hired prior to November 1, 1982, were therefore exempted from §1127 via the April 4, 1989 memorandum and continued to have such exemption until the transfers discussed herein.

 In October 1995 a bill was introduced to amend the Charter to authorize the FDNY to operate an emergency and pre-hospital ambulance system. An October 26, 1995 HHC board of directors resolution authorized its president to effectuate a transfer of the EMS employees to the FDNY. HHC and the City then negotiated the terms and conditions of the change and on January 19, 1996 the parties signed a Memorandum of Understanding to transfer the EMS functions pursuant to Civil Service Law ("CSL") 70(2). Finally, on February 15, 1996 the bill authorizing the transfer was passed by the City Council, and on February 26, 1996 Mayor Guiliani signed the bill as Local Law No. 20 and issued an Executive Order directing the FDNY to assume ambulance and pre-hospital emergency medical service functions on March 17, 1996. On that day the transfer took place and the EMS became the Bureau of Emergency Medical Service of the FDNY and approximately 3,250 HHC employees became FDNY employees.

 On July 15, 1996, District Council 37 filed an improper practice petition with the New York City Office of Collective Bargaining charging that by applying §1127 to petitioners, respondents improperly unilaterally imposed a new condition of employment upon their employ without the Union's agreement. Petitioners simultaneously commenced this proceeding in which they seek a judgment: (1) declaring that the City acted arbitrarily and capriciously and in contravention of law by enforcing §1127 in violation of CSL 70(2) and Charter 1143; (2) declaring that the City's action is an unconstitutional impairment of contract and deprivation of property in violation of the due process clauses of the New York State and United States Constitutions; (3) directing reimbursement of all moneys deducted via enforcement of §1127; and (4) directing the City to cease any further deductions thereunder.

 Petitioners contend that a further qualification was added as a result of the transfer via the imposition of an employment condition under §1127. They also contend that a loss of seniority benefit occurred because they were treated as new employees and thus lost their §1127 exemption in violation of CSL 70(2). Respondents contend that petitioners were not subject to new qualifications as a result of the enforcement of §1127 upon transfer, but were instead only subject to new terms and conditions of City employment which is not protected by §70(2), and that the EMS employees commenced employment with the FDNY without any change in civil service status or seniority and without further qualification.

 The standard of review in this proceeding is whether the determination to enforce §1127 upon petitioners was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" [CPLR 7803(3)]. The "judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body." [Ostrer v. Schenck, 41 N.Y.2d 782, 786 (1977)]. See also, Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974).

 The Court of Appeals has ruled that §1127 is not a tax, but an enforceable term and condition of employment with the City acting in its capacity as an employer, stating that it "is clear beyond cavil that the payments due to the City of New York are owed as a result of the contract entered into by the petitioner with the city and not as a result of an exercise by the city of its taxing authority" [Legum v. Goldin, 55 N.Y.2d 104, 108 (1982)].

 CSL 70(2) provides, in pertinent part, as follows:

 "Upon the transfer of a function (a) from one department or agency of the state to  another department or agency of the state, or (b) from one department or agency  of a civil division of the state to another department or agency of such civil division,  or (c) from one civil division of the state to another civil division of the state, or (d)  from a civil division of the state to the state, or vice versa, provision shall be made  for the transfer of necessary officers and employees who are substantially engaged  in the performance of the function to be transferred ... Officers and employees so  transferred shall be transferred without further examination or qualification and shall  retain their respective civil service classifications and status .... Officers and  employees transferred to another governmental jurisdiction pursuant to the  provisions of this subdivision shall be entitled to full seniority credit for all purposes  for service rendered prior to such transfer in the governmental jurisdiction from  which transfer is made."

 Longevity increments were determined by the Court of Appeals to be protected seniority rights in the interpretation of a town law that was similar to CSL 70(2) because the rights were found to be a "substantial pecuniary benefit related to length of service." [Town of Mamoroneck PBA, Inc. v. New York State Public Employment Relations Board, 66 N.Y.2d 722, 725 (1985)]. In Nickels v. New York City Housing Authority, 208 A.D.2d 203, 212 (1st Dept. 1995), aff'd 85 N.Y.2d 917 (1995), it was held that the phrase "full seniority credit for all purposes" in CSL 70(2) protected involuntarily transferred police officers against any diminution of pension rights.

 In order to ascertain whether petitioners' exemption is a benefit protected upon transfer, we must look to the legislative intent underlying CSL 70(2). " '[A] primary command to the judiciary in the interpretation of statutes is to ascertain and effectuate the purpose of the Legislature' and in 'finding such purpose, one should look to the entire statute, its legislative history and the statutes of which it is made a part'." [Association of Surrogates and Supreme Court Reporters v. State of New York, 78 N.Y.2d 143, 151 (1991), quoting, Rankin v. Shanker, 23 N.Y.2d 111, 114 (1968)]. "The civil service provisions of the Constitution and the statutes ... relating to ... transfers, were intended as a protection for the public, civil service employees, and their individual security" [Nickels v. New York City Housing Authority, supra, at p. 207].

 In Matter of Ganley v. Guiliani, NYLJ, Jan. 16, 1997, p. 29, c. 2, Justice Sklar of this court held that the imposition of §1127 on employees who became New York City Police Department officers when the police departments of the New York City Transit Authority and the New York City Housing Authority were merged into the City Police Department did not violate §70(2). There, relevant officers had never been subject to §1127 because, as opined by the corporation counsel in 1973, neither of said authorities was an "agency" of the City. In ruling that 70(2) was not violated, Justice Sklar stated that the "nonresident tax employment condition is neither a 'further examination or qualification', nor a change in 'civil service classification and status' as those terms are used in the context of the civil service law."

 Although there were no additional qualifications placed on EMS petitioners via the imposition of §1127, this court finds that the City disregarded their seniority benefits when applying this Charter provision to them. Petitioners had previously been granted exempt status by HHC. The exemption is a "substantial pecuniary benefit" based on a combination of petitioners' status as Group 12 HHC employees and their many years of service with that agency. Petitioners' exemption from §1127, as a protected benefit, is supported by the legislature's intention in adopting CSL 70(2) to protect employee rights upon transfer. The guarantee in §70(2) of "full seniority credit for all purposes for service rendered prior to such transfer" includes all financial benefits resulting from years of service. Exemption from §1127 is one of such benefits even though here it only flows to non-residents of the City. It is a pecuniary benefit enjoyed for years by petitioners of which they should not be deprived merely because of an administrative transfer of functions. Thus, while the conclusion herein will result in non-uniformity in the income taxation of EMS employees based on residence, that has been true in the past and, even if a contrary ruling were issued, non-uniformity would exist as employees hired prior to the enactment of §1127 remain exempt from its provisions.

 Contrasted with the police officers in Matter of Ganley v. Guiliani, here the original employer agency had specifically granted the relevant employees an exemption from the imposition of §1127 based on their period of service. It was not, therefore, just a case (as with the police officers) of an inapplicable statute, but rather it was a benefit bestowed as a consequence of being declared exempt by their employer due to seniority. The respondents' actions were accordingly in conflict with law as well as arbitrary and capricious as the application of §1127 to these particular employees is in violation of protections provided by CSL 70(2).

 In light of the foregoing, the court need not consider petitioners' other arguments. Accordingly, a judgment shall be entered declaring that (1) enforcement of §1127 against the EMS petitioners and other similarly situated employees is in violation of CSL 70(2); (2) directing respondents to reimburse petitioners and other similarly situated previously exempt EMS employees for all money deducted pursuant to the enforcement of §1127 from the date of the transfer; and (3) directing respondents to cease any further deductions pursuant to said §from such employees.

 Settle judgment.


Side Letter Agreements to a collective bargaining agreement


Side Letter Agreements to a collective bargaining agreement
NYC Transit Authority v PERB, 232 A.D.2d 492 

§209-a(1)(e) if the Civil Service Law provides that it is an improper employer practice to refuse to continue all the terms of an expired agreement until a new agreement unless the union has violated §210 of the Civil Service Law during or prior to the resolution of such negotiations.

Does the same rule apply with respect to instruments usually described as side letter agreements to a Taylor Law contract? This was the critical issue in New York City Transit Authority v PERB.

The Authority and the Transit Supervisors Organization [TSO] had entered into a "side letter agreement" that provided that TSO would not seek certification as the collective bargaining representative for certain enumerated Transit Authority employees.

Following the expiration of the collective bargaining agreement, TSO filed a petition with PERB asking to be certified as the collective bargaining representative for those enumerated Authority employees. The Authority objected, contending that the side letter agreement precluded TSO from filing such a petition.

PERB rejected the Authority's argument, ruling that the side letter agreement is effective only for the duration of the past collective bargaining agreement to which the side letter agreement corresponds.

The Authority appealed, only to have the Appellate Division affirm PERB's ruling. What was the Court's rationale for upholding PERB?

The Appellate Division said that TSO was not barred by §209-a(1)(e) because that provision only applies to a public employer or its agents and TSO was neither a public employer nor the agent of a public employer.

What is the significance of this ruling? It may be a signal that PERB and the courts will conclude that while an employee organization is not bound by the terms of a side letter agreement once the underlying agreement expires and no successor agreement is in place, §209-a(1)(e) mandates that an employer continue the terms set out in all side letter agreement adopted by the parties until a new agreement is negotiated.

Considering the language of §209-a(1)(e), it may not be possible for an employer to limit the life of a side letter agreement by incorporating by reference the terminal date of underlying collective bargaining agreement.


Seeking to bar arbitration based on "public policy considerations


Seeking to bar arbitration based on "public policy considerations
Sullivan County v Sullivan County Employees Asso., 235 A.D.2d 748

One of the issues in this appeal heard by the Appellate Division concerned Sullivan County's claim that the arbitration of a grievance as demanded by the Sullivan County Employees Association violated of "public policy considerations" and should be stayed.

The Association had demanded arbitration when the County denied a grievance based on the Association's claim that its action modifying a Taylor Law contract with another collective bargaining unit had triggered the "parity clause" in its agreement. The "parity clause" provided that if another bargaining unit negotiated a salary increase, those increases would be operative for employees covered by the agreement.

The Appellate Division said that to invoke a violation of public policy as justification for staying arbitration, "the violation must amount to the equivalent of a gross illegality." Although Sullivan County claimed that "parity clauses" were illegal, the Appellate Division noted that "such clauses are not per se invalid but require a case-by-case analysis."

The Courts indicated that the matter was not yet ripe for judicial consideration, commenting that if "the arbitrator's interpretation of the agreement may offend public policy, such a potential does not mandate a stay of arbitration." Rather, said the Court, if that turns out to be the case, the remedy is vacatur (reversal) of the award.


Politically motivated termination


Politically motivated termination
Martin Gordon, et al., v County of Rockland, US Circuit Court of Appeals, 2nd Circuit, 110 F.3d 886

Allegations that an employee was dismissed because of political affiliation -- or lack thereof -- has generated many law suits.

The Gordon case is instructive because it sets out the views of the U.S. Court of Appeals for the Second Circuit, which includes New York State, concerning the standards to be applied in determining if a politically motivated termination violates the constitutional rights of the individual. 

The case arose after Rockland County fired three Assistant County Attorneys -- S. Martin Gordon, Eric Ole Thorsen, and Joel J. Flick. Alleging that their terminations violated their First Amendment rights to political affiliation, the three sued in an effort to win reinstatement to their former positions. A U.S. District Court jury ruled in their favor and the County appealed.

The U.S. Circuit Court of Appeals found an error in the lower court's procedure and initiated a de novo  review of the constitutionality of the dismissals. A review de novo is, in effect, "a new trial" of the matter.

The key issue was whether or not the Rockland County attorneys' were sufficiently non-political to entitle them to First Amendment protection from partisan political termination.

Courts, including the U.S. Supreme Court, have ruled that certain policy-making and confidential employees are exempt from First Amendment protection and can be lawfully fired because of their political beliefs.

Two seminal cases on the legality of politically motivated dismissals are:

1. Elrod v Burns, 427 US 347. In Elrod the U.S. Supreme Court concluded that the politically motivated dismissals of employees in the Cook County (Illinois) Sheriff's Office was an unconstitutional interference with the employees' First Amendment freedoms of political belief and political association because the individuals terminated were not incumbents serving in "policymaking positions;" and

2. Branti v Finkel, 445 US 507. The high court said that the exemption allowing politically motivated dismissals extended to confidential employees as well as policymakers. But because Branti was neither a policymaker nor a confidential employee, he was entitled to First Amendment protection. The high court said that in evaluating whether it is permissible to dismiss an employee on the basis of political affiliation, "The focus ... should be not on the policymaking aspect of a plaintiff's employment, but rather on whether "party affiliation is an appropriate requirement" for effective job performance.

In the Rockland case, the Circuit Court of Appeals examined the nature of the attorneys' jobs and whether or not party affiliation was an appropriate requirement for job performance.

The Court considered whether its assessment of job duties should be based on the men's written job descriptions or the duties actually performed. Citing several supporting decisions, the Circuit Court said the assessment should be based on the power vested in the individual by law and the power which is inherent in the office. In other words, the job description is what counts in determining whether an employee has First Amendment  protection against politically motivated dismissals.

Gordon specialized in real property law, and handled Sewer Commission affairs;  Thorsen provided general legal services to the Highway Department and gave legal advice to the County's Planning and Parks Agencies; and Flick was an attorney in the Office of Community Development who advised municipal governments within the County as to whether their actions were in compliance with federal law.

The Court found all three positions encompassed serving as a legal advisor to a particular segment of county government, and representing the County in that capacity. This suggested they were policy-makers. The Court also analyzed whether the jobs were inherently political, using these questions as tests:

a. Is there  rational connection between shared ideology and job performance?

b. Is the employee in an exempt position and thus not subject to "civil service protection" under §75 of the Civil Service Law? [The Court cautioned that it does not presume employees are not entitled to First Amendment protection just because they are exempt from civil service protection. Also, it should be remembered that §75 covers many public employees serving in exempt or noncompetitive class positions who are honorably discharged veterans who served in time of war or who are certified as "exempt volunteer firefighters."]

c. Does the individual exercise technical competence or expertise that permits them to make independent judgment on policy matters?

d. Does the individual control or supervise others?

e. Is the individual authorized to speak in the name of policymakers?

f. Is the individual is perceived as a policymaker by the public?

g. Does the individual influence government programs?

h. Does the individual have contact with elected officials?

i. Is the individual responsive to partisan politics and political leaders?

The Court said a factor supporting a ruling that the three were protected by the First Amendment was that each was not in charge of a large group of employees. But, the Court also noted, Gordon, Thorsen, and Flick all had technical competence or expertise and each was a consultant to a specific policymaking board. Also influencing the decision was the Court's view that "the Legislature, which has perhaps the best knowledge of the responsibilities involved in the positions it created, designated these positions both as 'policymaking' and as exempt from civil service status." Of primary importance to the Court in resolving the issue, however, the fact that each of the three attorneys was empowered to act and speak on behalf of a policymaker, especially an elected official.

Editor's Note: Another aspect of the Rockland County case concerned the fact that the County Attorney was not elected but rather appointed by the Legislature, which is itself elected.

In the words of the Court, "all three plaintiffs advised the Legislature or Commissions set up by the Legislature or County Executive, both of which are elected." The Court concluded that each of the attorney's "advice to and representation of top policymaking officials in the County" justified their dismissal for political reasons.

Why? The Court said that "it is difficult to fathom how such responsibilities can be undertaken and done well without their "political or social philosophy [making] a difference in the implementation of programs."

Although the three attorneys contended that did not make policy, the Court concluded that this factor was outweighed by the evidence that they can act in the stead of the County Attorney. Further, the Court said that their claim that they "only gave legal advice" had been earlier rejected as justification for an employee coming within the Branti exception, citing the Third Circuit's ruling in Ness v Marshall, 660 F2d 517.

In Ness the Circuit Court decided that the positions of City Solicitor and Assistant City Solicitor were not protected by the First Amendment despite the solicitors' argument that they performed only "purely technical legal work." The Court said that the duties the solicitors could perform -- "rendering legal opinions, drafting ordinances, [and] negotiating contracts -- define a position for which party affiliation is an appropriate requirement."

A fair conclusion, according the Gordon ruling, is that these Assistant County Attorneys, "because of the discretion with which they are charged, and because of their authority to act on behalf of the County, are politically accountable to the Legislature and the County Executive such that their loyalty helps ensure that the mandate of the electorate is effectively carried out." The Court reversed the jury's decision in Gordon, Thorsen, and Flick favor, holding the three exempt from First Amendment protection against politically motivated dismissal.


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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.