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July 23, 2019

The New York Department of Civil Service has posted a General Information Bulletin No. 19-05 concerning identifying certain positions in the non-competitive class with the Greek letter "phi" [Φ].



GENERAL INFORMATION BULLETIN No. 19-05

TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers
FROM: Allen Jordan, Manager (Commission Operations)
SUBJECT: Phi tag Designation Criteria
DATE: May 30, 2019

Please be advised that pursuant to Civil Service Law section 42(2-a), the Civil Service Commission is the entity empowered to designate, among positions in the non-competitive class, those positions which are confidential or require the performance of functions that formulate or influence policy in an agency. Positions so designated are recorded in Appendix 2 of the Rules for the Classified Service (the non-competitive class) with the Greek letter "phi."

When seeking approval for non-competitive classification of a position, agencies must provide a detailed explanation of the position, duties and responsibilities for which Commission determination will be sought. The explanation should include a description of why a phi designation is requested.

Alternatively, the Commission may choose to apply a phi designation to a given position, even if the phi designation has not been requested by an agency.

To provide clarity, the phi designation criteria for the Commission's consideration includes the following:

Non-competitive positions where the duties include acting in a confidential capacity to an appointing authority or having a close relationship with an appointing authority may be designated as confidential positions. Merely dealing with sensitive and/or confidential information will not necessarily justify a phi designation.

Non-competitive positions where the duties include formulating or influencing policy may be phi-designated.

Incumbents of phi-designated positions cannot acquire tenure protection in such positions unless they are honorably discharged wartime veterans or exempt volunteer firefighters*, as noted in Civil Service Law section 75(1)(b).

* Exempt volunteer firefighters should not be confused with positions in the exempt jurisdictional class.

Termination of employment ruled "disproportionate to the offense" under the circumstances and remanded to the appointing authority for the imposition of a lesser penalty


In this appeal to the Appellate Division was asked to review a determination by a appointing authority, [Respondent], that resulted in the termination of a school bus driver,   [Plaintiff] after Respondent found Plaintiff guilty of Civil Service Law §75 disciplinary charges alleging that Plaintiff had slapped a special needs student, [SNS], in the course of her attempts to calm him.

The Appellate Division's decision reports that on the day of the incident, the SNS, in addition to other acts, commenced to yell and scream when he was given a book instead of the toy truck that he was accustomed to receiving upon boarding the bus. It was undisputed that SNS ultimately became very aggressive and started to swing his arms at a social worker and punched Plaintiff in her stomach. Petitioner's reaction to the punch was to slap the student on the face with her open hand.*

The Appellate Division commented that Respondent's determination finding Plaintiff guilty of three disciplinary charges was supported by substantial evidence. The court, however, citing the so-called Pell Doctrine,** then concluded that, in light of Respondent's otherwise unblemished disciplinary record during her 20 years of service as a school bus driver, including five years driving special needs students, termination, "absent any other previous progressive disciplinary steps, is so disproportionate to the offense committed as to shock one's sense of fairness."

The court explained that in this instance Plaintiff was confronted by a student who, due to his special needs, lost control of his behavior and was significantly disrupting the other students on the bus, some of whom were also struggling to behave. Further said the court, Plaintiff's "conduct was not premeditated and, under these circumstances, appears to be the result of a momentary lapse of judgment."

In addition, the decision indicates that "there is nothing in [Plaintiff's]  employment history to suggest that she will ever engage in similar conduct again" and that the record reflects the fact that "although [Plantiff] had to 'separate or corral' students on occasion, she had never previously made physical contact with a student and was never reprimanded for her actions."

In this 3 to 2 decision, the majority of the Appellate Division panel opined that "[a]lthough termination in these circumstances shocks our sense of fairness, we do not condone [Plaintiff's] behavior, and only conclude that some form of discipline short of termination would be appropriate."

The court then remanded the matter to the Respondent "for the imposition of an appropriate penalty less severe than termination."

* As a result of the incident, Plaintiff had been subjected to criminal charges, which were ultimately dismissed "in furtherance of justice."

** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:
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A Reasonable Disciplinary Penalty Under the Circumstances - Determining 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

July 22, 2019

Lawmakers increased wages and benefits for teachers, first responders and other public employees in some 20 states


Governing - Featured Story - July 22, 2019

Posted on the Internet at:
https://www.governing.com/topics/mgmt/gov-2019-legislatures-salary-benefit-increases.html?utm_term=To%20Keep%20Public%20Workers%2C%20States%20Offer%20New%20Salaries%20and%20Benefits&utm_campaign=To%20Keep%20Public%20Workers%2C%20States%20Offer%20New%20Salaries%20and%20Benefits&utm_content=email&utm_source=Act-On+Software&utm_medium=email

Appointing authority rejects hearing officer's recommendation to continue disability benefits being provided police officer pursuant to General Municipal Law §207-c


The petitioner [Police Officer] in this CPLR Article 78 action suffered a job-related injury and was granted benefits pursuant to General Municipal Law §207-c* by the appointing authority Subsequently Police Officer  returned to work on a light-duty assignment and later was examined by a physician on behalf of the appointing authority. The physician reported that Police Officer was capable of returning to work on full duty as a police officer without restrictions.

The appointing authority terminated the Police Officer's §207-c benefits and directed that "he return to full duty, without restrictions." In accordance with the relevant provisions set out in a collective bargaining agreement [CBA], the Police Office requested a hearing and ultimately the designated hearing officer recommended that Police Officer continue to be provided with GML §207-c benefits. Notwithstanding the hearing officer's recommendation, the appointing authority issued a final determination denying the Police Officer's application for §207-c benefits finding that "based on the entire record" Police Officer was capable of performing his full duties as a police officer. Upon being notified that his light-duty assignment was terminated and being directed to return to work full time, without restrictions, Police Officer commenced this CPLR Article 78 proceeding, which Supreme Court transferred to the Appellate Division for its consideration.

The Appellate Division, citing Matter of Campo v City of Mount Vernon, 156 AD3d 694, explained that "[j]udicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record." Here, said the court, the hearing procedures were negotiated by the appointing authority and the Police Officer's union and memorialized in a CBA. The CBA provided that hearing officer was to issue findings of fact and make a recommendation on the questions certified to him. The appointing authority, however, retained full power and authority to render the final determination on the questions.

Noting that the hearing officer's findings are entitled to considerable weight, the Appellate Division explained that such findings "are not conclusive and may be overruled by the administrative authority, provided that the final determination is supported by substantial evidence."

Here, said the court, there was conflicting medical evidence and "it was for the administrative agency to choose between the conflicting opinions, and the courts are not free to reject the choice made by the administrative agency where room for choice exists." In words of the Appellate Division, [t]he testimony and opinion of the physician who examined the [Police Officer] on behalf of the [appointing authority] was rational and fact-based and, since a reasonable mind could accept that testimony and opinion, the determination of the [appointing authority] is supported by substantial evidence."  

The Appellate Division confirmed the appointing authority's determination terminating Police Officer's  light-duty assignment and directing him to return to work full time and dismissed the Police Officer's petition "on the merits, with costs."

* GML 207-c provides for the payment  of the salary, wages, medical and hospital expenses of   law enforcement personnel suffering injuries or illness incurred in the performance  of their law enforcement  duties. GML 207-a provides similar benefits to firefighting personnel suffering injuries of illness incurred in the performance of their firefighting duties.

The decision is posted on the Internet at:
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Disability Benefits for fire, police and other public sector personnel - A handbook addressing retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

July 19, 2019

Workers' Compensation Law provides that a claimant who knowingly makes a false statement of a material fact will lose eligibility for benefits


Workers' Compensation Law [WCL] §114-a (1) provides that a claimant who "knowingly makes a false statement or representation as to a material fact ... shall be disqualified from receiving any compensation directly attributable to such false statement or representation."* Further, a determination by the Board as to whether a claimant violated WCL §114-a will not be disturbed if supported by substantial evidence. 

A firefighter [Claimant] sustained an established injury to his neck in the course of his employment as a firefighter, as well as a prior established injury to his back and was awarded Workers' Compensation Benefits.

After reviewing the testimony and surveillance video** of Claimant, a WCL Judge concluded that Claimant's activities did not rise to the level of a WCL §114-a violation. The Workers' Compensation Board, with one panel member dissenting,*** however, concluded otherwise, holding that Claimant had violated WCL §114-a, imposed a mandatory penalty and permanently disqualified him from receiving future wage replacement benefits. The full Board denied Claimant's application for full Board review based on Claimant's failure to comply with the governing regulation set out in 12 NYCRR 300.13. Claimant then appealed both Board decisions.

The Appellate Division said that "... feigning the extent of disability and pretending to be unable to perform most tasks and body movements for the purpose of influencing any determination regarding workers' compensation benefits constitute false representations of material facts within the meaning of Workers' Compensation Law §114-a (1)" and such misrepresentation "need to affect the dollar value of an award to be material."

As the Board found, the video depicts Claimant performing many tasks — with no sign of impairment or difficulty — that are inconsistent with or, in some cases, "in direct contrast to" his representations to medical providers and evaluators, and contradicted his purported severe functional limitations and limited performance during a functional capacity evaluation [FCE].

Concluding that the Board's finding that Claimant had made false representations regarding material facts is supported by substantial evidence, the Appellate Division declined to disturbed the Board's determination. In the words of the court, "the Board adequately explained its reason for disqualifying [Claimant] from receiving future benefits, based upon its finding as to the "nature and extent of the misrepresentation," which it found to be "egregious."

Finally, the Appellate Division, citing Matter of Losurdo v Asbestos Free, 1 NY3d at 267,  said considering Claimant's substantial, repeated misrepresentations of his functional abilities and condition, it was not persuaded by Claimant's argument that imposing the discretionary penalty of permanent disqualification for workers' compensation benefits was disproportionate to his misrepresentations.

* See Losurdo v Asbestos Free, 1 NY2d 258.

** A surveillance video of Claimant taken on three days in November 2016 reflects that "Claimant was observed getting in and out of his truck, driving and walking around stores and his property without any apparent difficulty, as well as carrying floor boards into and out of a store and repeatedly bending over at the waist to inspect merchandise or to remove items from low store shelves. Further Claimant was seen placing objects, including floor boards and boxes, on the floor, bending over and picking up a box from the floor, carrying a box with one hand, twice pulling down an overhead garage door with one hand, bending and reaching for objects and vigorously sweeping his garage."

*** The dissenting panel member agreed that Claimant had violated Workers' Compensation Law §114-a but would not have imposed the discretionary penalty of permanent disqualification. The Appellate Division noted that "[a]lthough full Board review would have been mandatory due to the dissent of one panel member, such review required a proper, timely application, including compliance with the completion requirements for RB-89.2 applications (see 12 NYCRR 300.13 [b] [4]). Moreover, direct judicial review of the Board panel's decision is also permitted (see Workers' Compensation Law §23) and, indeed, has herein provided review of all issues that could have been considered by the full Board." 

The decision is posted on the Internet at:


July 18, 2019

Increasing a retired employee's contributions for health insurance premiums


The City of White Plains [the City] adopted an ordinance in 2010 that terminated the City's paying 100 percent of the premiums for health insurance on behalf of its retired police officers, requiring the retired officer to pay the difference, if any, between 85 percent of the cost of the premium for participation in the New York State Empire Health Insurance Program and the full premium for the health insurance plan in which the retired officer was enrolled.

Retired police officers appointed prior to July 1, 1995 and who had retired prior to May 24, 2010 [Retirees], contending that the ordinance violated Contracts Clause of the United States Constitution, Article I, Section 10, and the Equal Protection Clause of the Fourteenth Amendment, brought an action in federal district court challenging the City's action.
  
The federal district court granting summary judgment in favor of the City and the other municipal defendants named in the action and the Retirees appealed. The United States Circuit Court of Appeals, Second Circuit, affirmed the district court's ruling.

Addressing the Retirees' "Contracts Clause" claim, the court said that the Retirees argue that the City’s 2010 Ordinance violates the Constitution's Contracts Clause because "their collective bargaining agreement [CBA] guaranteed that the City would pay the full cost of their health insurance premiums. However, said the Circuit Court, "this claim fails because [the Retirees] have forfeited any argument that the 2010 Ordinance constitutes an impairment, rather than a contractual breach." Further, said the court, the Retirees "also failed to contradict record evidence provided by the City that the 2010 Ordinance served a significant public purpose or that any contractual impairment of that guarantee was reasonable and necessary to effectuate that purpose."

Citing Buffalo Teachers, 464 F.3d at 369, the court noted that that it had held that “the legislative interest in addressing a fiscal emergency is a legitimate public interest”  and, at most, the Retirees "dispute that the City was in a “real fiscal emergency.”

As the District Court explained, "the City provided substantial unrebutted evidence that the 2010 Ordinance was passed to address a serious budget shortfall and impending credit downgrade caused by the global financial crisis that started in 2008 and, for the City, worsened considerably as of 2010 and the Circuit Court said it agreed "with the District Court that any alleged impairment caused by the 2010 Ordinance to address the City’s fiscal emergency was reasonable and necessary—a conclusion that the appellants in any event do not challenge on appeal. 

Addressing the Retirees' Equal Protection Claim, the Circuit Court noted that the Retirees were all retired at the time the 2012–2018 collective bargaining agreement between the City and the representative of police officers then in service was executed and, agreeing with the district court, said that the Retirees were not similarly situated to active employees who could participate in collective bargaining, affirmed the dismissal of the Retirees’ equal protection claim.**  

* The decision notes that City "presented ample evidence that it passed the 2010 Ordinance only after pursuing a range of measures to increase revenue and cut expenses" and although New York law permitted the City to require the appellants to contribute up to 50 percent of the premium amount, the 2010 Ordinance required the Retirees to contribute substantially less.

** In McDonald PBA v City of Geneva, Ct. of Appeals, 92 N.Y.2d 326, the Court of Appeals ruled that in the absence of a Taylor Law contract providing otherwise, a municipality’s past practice does not demonstrate any right to compel the municipality to continue providing the same level of health benefits to its retirees as it has in the past.

The decision is posted on the Internet at:


July 17, 2019

Eligibility for supplemental benefits being paid pursuant to General Municipal Law §207-a terminates upon the disabled firefighter attaining his mandatory service retirement age


Plaintiff, a former City of Buffalo firefighter who was granted performance of duty disability retirement benefits in accordance with Retirement and Social Security Law §363-c received a supplemental benefit until the City of Buffalo [Respondent] discontinued paying the supplement upon Plaintiff's attaining age 62.*

Plaintiff initiated a proceeding pursuant to CPLR Article 78 seeking reinstatement of the supplemental benefit, with back payment, contending that Chapter 585 of the Laws of 2008 amended Retirement and Social Security Law [RSSL] §384-d(i) and revised the mandatory service retirement age from age 62 to age 65. Plaintiff argued that he was being denied equal protection of the law in view of the fact that "other similarly situated firefighters" continued to receive the supplemental benefit from appointing authority beyond age 62.

Supreme Court denied the petition and Plaintiff appealed. The Appellate Division affirmed the Supreme Court's ruling, noting that "[i]t is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature," citing Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205.

The Appellate Division opined that the plain language of the amendment and its legislative history  establish that the amendment was intended, as relevant to Plaintiff, to permit certain firefighter members of the retirement system who are "capable of performing the duties of their position" to continue working until the age of 65 while retaining the mandatory service retirement age of 62 for disabled firefighters receiving RSSL §384-d(i) retirement plan benefits.

In the words of the court, "[w]hen the terms of related statutes are involved, as is the case here, they must be analyzed in context and in a manner that harmonize[s] the related provisions . . . [and] renders them compatible," citing Matter of M.B., 6 NY3d 437. As it was undisputed that the Plaintiff is not "capable of performing the duties of [his] position ... the mandatory service retirement age applicable to him" is 62." Accordingly, the Appellate Division opined that Supreme Court "properly determined that [Plaintiff] was not entitled to the supplemental benefit after he attained [age 62]."

Addressing Plaintiff's contention that he had been denied "equal protection of the law" when Respondent discontinued paying him the supplement to his retirement allowance upon his attaining age 62, the Appellate Division said that Plaintiff had presented "no evidence . . . to support a finding that [he] ha[d] been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."

Thus, ruled the Appellate Division,  "[Supreme Court] properly determined that the record did not support [Plaintiff's] contention that Respondent denied him equal protection of the law."

* General Municipal Law 207-a(2) provides for a supplement equal to the  difference  between  the  amounts  received  under   his   allowance  or  pension  and  the  amount of his regular salary or   wages  to be added the disabled firefighter's retirement allowance to equate which supplement is discontinued the firefighter attaining the mandatory service retirement age applicable to   him.
consistent with the relevant provision of the Retirement and Social Security Law.
upon the firefighter attaining the mandatory service retirement age applicable to   him.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_04534.htm
__________________

Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on  


July 16, 2019

The appropriate statute of limitations for commencing litigation of an issue depends of the nature of the redress being sought


In this action the Appellate Division affirmed Supreme Court dismissal of the Plaintiff's CPLR Article 78  petition seeking to annul the appointing authority's termination of Plaintiff's on the grounds that it was untimely, explaining that CPLR §217(1) requires that an Article 78 proceeding challenging an individual's termination from government employment must be brought within four months from the date on which the appointing authority's decision to terminate the employee became final and binding.*

The court rejected Plaintiff's claim that he was entitled to the longer period for commencing his action available under the Family Medical Leave Act because, said the court, "the crux of [Plaintiff's] proceeding was to challenge and seek redress for the administrative decision to fire him, and not to make a claim under the FMLA.

* N.B. Submitting request to the appointing authority to reconsider its decision does not serve to toll the running of the controlling statute of limitations.

The decision is posted on the Internet at:

July 15, 2019

Exception to having to exhausting administrative remedies as a condition precedent to an employee initiating litigation against his employer


The Plaintiff in this action, a school teacher employed by the defendant City of New York Department of Education [DOE], sued DOE to recover damages for personal injuries she alleges she sustained at the high school where she worked. The Plaintiff claimed that she had been trapped inside a school elevator until she was extracted from it, "which required her to jump from the elevator to the third floor," and suffered an injury to her back as a result.

Prior to commencing this action, the Plaintiff applied to the DOE for "line of duty injury" paid medical leave pursuant to the terms of a collective bargaining agreement [CBA]. The DOE denied the application without providing the Plaintiff with a reason for its determination. Plaintiff decided not to challenge the DOE determination through a medical arbitration proceeding pursuant to the terms of the CBA, and commenced this action.

The DOE and the defendant City of New York [Defendants] moved to dismiss the complaint insofar as asserted against them on the basis that Plaintiff failed to exhaust her administrative remedies under the CBA. In the alternative, Defendants contended that dismissal was warranted under collateral estoppel and, or, res judicata. Supreme Court granted that branch of the motion seeking to have the court dismiss the complaint insofar as asserted against the Defendants, explaining that Plaintiff failed to exhaust her administrative remedies under the CBA. Plaintiff appealed the Supreme Court's decision and the Appellate Division reversed the lower court's ruling.

Although it is "black letter law" that an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies or face dismissal of the action, in this instance the Appellate Division said that Plaintiff was seeking to recover damages against the Defendants for pain and suffering based upon a negligence theory of liability which is outside the scope of, and is not governed by, the CBA's "line of duty injury" paid leave grievance provisions.

Accordingly, opined the court, "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the CBA," citing Bregman v East Ramapo Cent. Sch. Dist., 122 AD3d at 657; Matter of Van Tassel v County of Orange, 204 AD2d at 561.

With respect to the Defendants' argument that dismissal is also warranted on the basis of collateral estoppel and res judicata, the Appellate Division opined that the dismissal of the case by reason of the doctrine of collateral estoppel was without merit, explaining that the issue that Plaintiff seeks to pursue here was not shown to have decided by the DOE when it denied the plaintiff's "line of duty injury" paid leave application.  

Addressing the application of the doctrine of res judicata, or claim preclusion, in this action, the court ruled that this, also, is inapplicable to the Plaintiff's complaint "because the relief she seeks could not have been awarded within the context of the prior administrative proceeding," citing Lasky v City of New York, 281 AD2d at 599.

Thus, ruled the Appellate Division, Supreme Court should have denied that branch of the Defendants' motion to dismiss the complaint insofar as asserted against them.

The decision is posted on the Internet at:

July 12, 2019

Keeping the name and other personnel information contained in official documents disclosed to the public confidential


Supreme Court, New York County, dismissed the CPLR Article 78 petition filed by Plaintiff to annul a decision of the New York City Office of Trials and Hearings [OATH], denying Plaintiff 's request that OATH "redact his name and other personal information from any document it disclosed to the public" and order the municipal respondents to keep the OATH reports of Plaintiff and all others similarly situated confidential.

Plaintiff appealed the Supreme Court's ruling, contending that the report and recommendations issued by OATH were "confidential" within the meaning of Civil Rights Law §50-a.*

Citing Niagara Mohawk Power Corp. v New York State Department of Environmental Conservation, 169 AD2d 943, the Appellate Division dismissed Plaintiff's appeal as moot, explaining that because the report objected to by Plaintiff has been publicly available from multiple sources, including the OATH and LEXIS websites, for a considerable period of time, it could not provide Petitioner any meaningful relief.

In addition, it should be noted that with respect to the publication of reports of judicial, quasi-judicial, legislative and other official actions, §74 of New York State's Civil Rights Law provides that "A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published." This section, however, does not apply to actions involving alleged libel contained in any matter "added by any person concerned in the publication or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof."

* Civil Rights Law §50-a provides that " All personnel records used to evaluate performance toward continued employment or promotion, police officers, firefighters and correction officers are confidential."

The decision is posted on the Internet at:



Pew Charitable Trusts survey of state-run public pension systems


A Pew Charitable Trusts survey reports that poorly funded pension plans for state and local public employees experienced "financial erosion" in recent years despite strong investment returns.

These findings are presented in a new report from The Pew Charitable Trusts that surveys the health of state-run public pension systems.

Based on Governmental Accounting Standards Board criteria, in 2017 only 8 states were at least 90% funded. In contrast, as of 2017, 24 public retirement systems were reported as being below 70% funded according to the Pew report.

The New York State and Local Employees' Retirement System/New York State Police and Fire Retirement System report that for fiscal 2018, the most recent figures available, the market value of assets [MVA] was 98.0% funded and the actuarial value of assets [AVA] was 95.0% funded.

The New York State Teacher's Retirement System reports that as of July 1, 2018, the most recent figure available, the Teacher's Retirement System was 101% funded based on the market value of assets (MVA) and 99% funded based on the actuarial value of assets (AVA).

For information about Pew's "Retirement Savings" project, please visit: https://www.pewtrusts.org/en/projects/retirement-savings/about

Source: Government Executive Media Group Route Fifty article by Bill Lucia, Senior Reporter.

A probationary employee is entitled to serve for a specified minimum period of time to demonstrate his ability to satisfactorily perform the duties of the position to which he was appointed


Plaintiff brought this CPLR Article 78 to review a determination of the New York City Department of Correction terminating Plaintiff from employment as a correction officer prior to the end of his probationary period. Supreme Court denied the Plaintiff's petition and dismissed the action, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that a probationary employee may "be dismissed for almost any reason, or for no reason at all," citing Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520." In the words of the Appellate Division, "The employment of 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's reference to "decisional law" points to significant exception to its statement that "... a probationary employee may be terminated without a hearing and without a statement of reasons....."

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The rationale underlying this exception, requiring "notice and hearing in the event a probationer is being terminated prior to the completion of his minimum probationary period, is that the individual is entitled to serve for a minimum period to demonstrate his ability to satisfactorily perform the duties of the position to which he was appointed.

Addressing the merits of Plaintiff's, the Appellate said he failed to demonstrate, or even adequately allege, that his employment was terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_04706.htm
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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on

July 11, 2019

New York State's local government tax cap to remain at two percent for calendar 2020


Property tax levy growth for all counties, towns, fire districts, 44 cities and 10 villages having fiscal years that close on Dec. 31 will be capped at 2 percent for the 2020 fiscal year according to a statement released by New York State Comptroller Thomas P. DiNapoli dated July 11, 2019

The tax cap, which first applied to local governments in 2012, limits tax levy increases to the lesser of the rate of inflation or 2 percent with some exceptions, including a provision that allows municipalities to override the tax cap. During the 2014 through 2018 fiscal years, municipalities with a fiscal year ending on Dec. 31 had their levy growth capped at less than 2 percent.

For a list of allowable levy growth factors for all local governments, visit: https://www.osc.state.ny.us/localgov/realprop/pdf/inflation_allowablegrowthfactors.pdf


Paid Family Leave information for employers in the public sector and the private sector


New York State offers complete details and resources on Paid Family Leave at PaidFamilyLeave.ny.gov, including a special page for public employers. Help is also available via a toll-free Paid Family Leave Helpline at (844) 337-6303, Monday through Friday, 8:30 a.m. – 4:30 p.m.

Selection of a medical officer to examine an employee terminated from her position pursuant to §72.5 of the Civil Service Law to determine the individual's "fitness for reinstatement" to the position


An individual [Plaintiff] was placed on "ordinary disability leave" involuntarily by the appointing authority pursuant to Civil Service Law §72(5).* About two years later Plaintiff was terminated from her position by the appointing authority pursuant to Civil Service Law §73.**

When she sought to be reinstated to her position the Department of Citywide Administrative Services (DCAS) designated an outside entity, JurisSolutions, to provide a medical officer to examine Plaintiff to determine her fitness to return to duty. Following the medical examination, Plaintiff filed a CPLR Article 78 petition contending that the physicians that had conducted her fit-for-duty evaluation were unqualified.

The Appellate Division dismissed Plaintiff's cause of action, holding that DCAS did not improperly delegate its duty to select a medical officer to an outside entity, JurisSolutions.

Both Civil Service Law §72(1) and §73 essentially provide that "When 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 . . . 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."

The court, noting that neither §72(1) or §73 mandates any method that the "civil service department or municipal commission having jurisdiction" must use to select the medical officer, and nothing in the text prohibits DCAS from employing a procurement process to select the medical officer who will conduct the evaluation.

The Appellate Division then cited Lazzari v Town of Eastchester, 20 NY3d 214, a case involving a public employee on "worker's compensation leave" pursuant to §71 of the Civil Service Law, in which the Court of Appeals opined "Although Civil Service Law §71 does not indicate to whom the certification must be made, read in context, it is clear that the certification is made to the Department of Human Resources acting as a civil service commission, the body that arranges for the examination and to whom the results of such an examination are reported. Indeed, the purpose of section 71 is to involve a neutral agency and a physician, independent of both the employee and the employer, with appropriate oversight."

The Appellate Division, noting that "Although JurisSolutions provides the doctors, DCAS maintains complete control over the selection process," rejected Plaintiff's contention that the doctors that conducted her fit-for-duty evaluation were unqualified as not being supported by the record, and the hearing officer's determinations concerning the doctors' credibility should not be disturbed.

* Civil Service Law §72(5), in pertinent part, provides "Notwithstanding any other provisions of this section, 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."

** Civil Service Law §73 of the Civil Service Law provides, in pertinent part, "When an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law, his employment status may be terminated and his position may be filled by a permanent appointment."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_04658.htm
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July 10, 2019

A request for reconsideration of a final administrative decision neither tolls the running of the Statute of Limitations for bring an Article 78 action nor began anew the time within which judicial review could be sought


A job seeker [Applicant] appealed the decision of Supreme Court granting the prospective employer's [Agency] motion the dismiss Applicant's CPLR Article 78 petition seeking a court order annulling the Agency's  decision not to hire the Applicant and directing the Agency to reconsider his application for employment.

The Appellate Division Unanimously affirmed the Supreme Court's action explaining that the lower court had "properly dismissed this proceeding as untimely" as it had been  commenced more than four months after the Agency's determination to deny Applicant's renewed application for employment became final and binding on the Applicant for the position.

The court rejected Applicant's argument that the statute of limitations period did not begin to run on the date of the General Municipal Law §50-h hearing* held in connection with a notice of claim Applicant had filed with the Agency concerning his claim for damages arising from its alleged discrimination in violation of Correction Law §752,** noting that one cannot "circumvent the statute of limitations by demanding that an agency change its determination and seeking [a writ of] mandamus to compel when that demand is refused."***

The Appellate Division characterized the Applicant's notice of claim  as constituting "at best a plea for reconsideration" which effort "neither tolled the Statute of Limitations nor began anew the time within which review could be sought," citing Miller v McGough, 97 AD2d 416. Further, noted the court, the record does not support Applicant's claim that he made a demand for compliance with a duty enjoined on the Agency by law at the §50-h hearing.

* § 50-h, Examination of claims, sets out the procedures to be followed in the event an individual files a notice of claim is filed against a political subdivision of the State involving the occurrence and extent of the injuries or damages for which claim is made.

** §752 of the Corrections Law prohibits "Unfair discrimination against persons previously convicted of one or more criminal offenses.

*** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send it record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.
 
The decision is posted on the Internet at:

Initiating litigation in federal court under a pseudonym


An employee of the Port Authority of New York and New Jersey filed the complaint under the pseudonym "Female Port Authority Officer 47708" v Port Authority of New York and New Jersey.

In this appeal to the United States Circuit Court of Appeals, Second Circuit the court initially noted the case was captioned: “Female Port Authority Officer 47708,” until now notwithstanding the fact that the employee did not object to the use of her name in court.

With respect to filing a complaint under a pseudonym, the Second Circuit, citing Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, explained that "[g]iven the presumption in favor of open records, a district court may permit a plaintiff to use a pseudonym only in the unusual circumstances in which 'the plaintiff’s interest in anonymity' outweighs both the public interest in disclosure and any prejudice to the defendant.”

However, the district court never made such a determination, nor, said the Second Circuit, did it "discern any basis for permitting to proceed under a pseudonym,"* and directed the Clerk of Court is directed to amend the caption to read as follows:

Kathleen Howard, Plaintiff-Appellant, v. Port Authority of New York and New Jersey, Port Authority Police Department of New York and New Jersey, John Degnan, Chairman, Michael Fedorko, Superintendent, Police Officer, 18-2423-CV

Howard's Discrimination Complaint

The federal district court dismissed Howard's complaint that (1) she suffered sexual harassment and (2) was terminated from her position as a Port Authority probationary police officer  on the basis of her sex, both in violation of 42 U.S.C. §2000e et seq. and 42 U.S.C. §1983. On appeal, however, Howard argued only that she was discriminated against "because she is a woman."

Turning to the merits of this aspect Howard's complaint, the Second Circuit said that Howard primarily substantiates her sex discrimination claim by arguing that [1] although she informed police investigators that she could not recall answers to their questions and was fired, her similarly situated male colleagues lied to police investigators and were not fired and [2] that the Port Authority’s proffered reason for her termination is false.

Apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , the court explained that a plaintiff must [1] establish a prima facie case of discrimination, which [2] shifts the burden to the employer to come forward with a legitimate, nondiscriminatory reason for the adverse employment action. At the summary judgment stage, once the employer comes forward with a permissible reason for the adverse employment action, the plaintiff must present evidence from which a reasonable jury could find that the employer’s justification is a pretext for intentional discrimination.

Here the Circuit Court rejected the Port Authority argument that Howard did not possess the minimal qualifications to be a police officer because she is not a truthful person because the Port Authority did not raise this argument with the district court and it "decline[d] to consider this waived argument."

Assuming, but not deciding, that Howard has satisfied her “minimal” burden to establish that she was “similarly situated in all material respects” to fellow probationary police officers who were not terminated despite engaging in conduct materially similar to Howard’s conduct, the Circuit Court addressed the question of whether Howard has presented evidence from which a reasonable jury could find that she was the victim of intentional sex discrimination by applying the "Reeves" test.**

Reeves requires the court “to examine the entire record” and “make [a] case-specific assessment as to whether a finding of discrimination may reasonably be made.” "After thoroughly reviewing the record," the Circuit Court concluded that a reasonable jury could not find by a preponderance of the evidence that Howard’s termination was motivated by her sex. In the words of the court, "[a]ssuming that Howard has presented sufficient evidence to carry her de minimis burden of establishing a prima facie case, on the record here, such evidence—even combined with some evidence of pretext—is insufficient as a matter of law to carry her ultimate burden at trial."

* The Court also noted that "until now even though the employee did not object to the use of her name in court."

** Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. In Reeves the United States Supreme Court rejected the view of those circuits that had granted summary judgment for the employer on the ground that the terminated employee had failed to prove more than employer pretext (the ‘pretext plus’ cases). “Pretext plus” is the phrase used when referring to the requirement that a plaintiff both prove that an employer’s proffered reason is untrue (the “pretext” evidence) and offer “additional evidence” (the “plus”) of discrimination.

The decision is posted on the Internet at:

July 9, 2019

Courts impose stricter standards than required by CPLR Article 75 when considering a petition seeking to vacate an arbitration award promulgated pursuant to compulsory arbitration

The educator [Petitioner] in this CPLR Article 75 action appealed the Supreme Court's granting the appointing authority's motion to confirm an arbitration award terminating Petitioner's employment as a teacher, denied her petition seeking to vacate the award and dismissed the proceeding. Petitioner appealed but the Appellate Division unanimously affirmed the lower court's rulings.

Education Law §3020-a(5) provides that judicial review of a hearing officer's findings is limited to the grounds set forth in CPLR 7511(b), which provides that the court may vacate the award in the event it finds that the rights of the party challenging the award were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except  where  the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his   power or so imperfectly executed it that a final and definite award upon  the subject matter submitted was not made; or

(iv) failure to follow the CPLR Article 75 procedures, unless the party   applying  to vacate the award continued with the arbitration with notice   of the defect or defects and without objection.

Where, however, the parties have submitted to compulsory arbitration, as was here the case, judicial scrutiny is stricter in that the determination must be in accord with due process, supported by adequate evidence, be rational, and not arbitrary and capricious, the criteria required to be met in adjudicating final administrative disciplinary determinations in CPLR Article 78 proceedings.

The Appellate Division held that arbitrator's decision here being challenged was based on sufficient evidence, was rational, and was not arbitrary or capricious. Further, said the court, Petitioner did not dispute the absences and lateness noted in Specifications 1 through 6, which "the arbitrator properly found were excessive," and as to which the arbitrator noted that Petitioner failed to seek a medical accommodation until shortly before the charges were filed against her.

Further, noted the Appellate Division, Petitioner did not provide medical documentation supporting her claim that the absences and lateness were causally related to her medical condition.

Turning to the charges and specification alleging Petitioner had subjected a student to corporal punishment, the Appellate Division acknowledged the fact that the arbitrator had credited the student's testimony with respect to this element in the disciplinary action taken against Petitioner, and, citing Paul v NYC Department of Education, 146 AD3d 705, opined that a "hearing officer's determination of credibility is largely unreviewable."

Applying the Pell Doctrine set out in Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 22, the Appellate Division said that termination of Petitioner's employment does not shock the conscience given her repeated and prolonged attendance issues, which were the subject of two prior disciplinary proceedings, and her other substantial misconduct.

Citing Bolt v NYC Department of Education, 30 NY3d 1065, the court observed that although " .... reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty."

The decision is posted on the Internet at:

July 8, 2019

The appropriate statute of limitations for commencing litigation of an issue depends of the nature of the redress being sought


In this action the Appellate Division affirmed Supreme Court dismissal of the Plaintiff's CPLR Article 78  petition seeking to annul the appointing authority's termination of Plaintiff's on the grounds that it was untimely, explaining that CPLR §217(1) requires that an Article 78 proceeding challenging an individual's termination from government employment must be brought within four months from the date on which the appointing authority's decision to terminate the employee became final and binding.*

The court rejected Plaintiff's claim that he was entitled to the longer period for commencing his action available under the Family Medical Leave Act because, said the court, "the crux of [Plaintiff's] proceeding was to challenge and seek redress for the administrative decision to fire him, and not to make a claim under the FMLA.

* N.B. Submitting request to the appointing authority to reconsider its decision does not serve to toll the running of the controlling statute of limitations.

The decision is posted on the Internet at:


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