PERB's authority to initiate "jurisdictional deferral" and "merits deferral" in considering an improper practice charge filed pursuant to §209-a(1)(d) of the Civil Service Law

New York State[State] and the Public Employees Federation [PEF], representing state employees in the Professional, Scientific and Technical Services Unit, were parties to a collective bargaining agreement [CBA] from April 2011 to April 2015. Certain employees working at the Rochester Psychiatric Center [RPC], a treatment facility overseen by the Office of Mental Health were in the collective bargaining unit represented by PEF.

RPC had implemented a policy in 1982 whereby employees were not routinely required to submit doctor certificates for absences from work due to illness or injury, with the exception of six specified reasons that "management will require that a doctor's certificate be submitted." In December 2012, RPC's director of nursing sent an email to the entire nursing staff stating that the coverage needs of its patients required a change of policy and that "[l]ast minute call [ins] will require documentation supporting the [rationale] for the absence" for specified time periods during the 2012-2013 holiday season.

PEF filed an improper practice charge with Public Employment Relations Board [PERB] alleging that petitioner violated Civil Service Law §209-a(1)(d) by, among other things, unilaterally imposing a requirement that all employees submit medical documentation for unscheduled absences from work during the holiday season — a disciplinary work rule restricting employees' access to sick leave.

Ultimately PERB, relying [1] jurisdictional deferral and [2] a merits deferral, sustained an Administrative Law Judge's determination that State had violated §209-a(1)(d) and ordered, among other things, that RPC cease and desist from implementing the new requirement and State initiated a CPLR Article 78 proceeding seeking to annul PERB's determination.

With respect to PERB's jurisdictional deferral policy, the Appellate Division noted that "PERB has consistently interpreted Civil Service Law §205(5)(d) to deprive it of jurisdiction over failure-to-negotiate improper practice charges when the underlying disputes are essentially contractual, in favor of resolving the dispute through the parties' grievance-arbitration machinery, or resort to the courts. Where the CBA provides the charging party with a reasonably arguable source of right with respect to the subject matter of the charge, PERB "has either dismissed the improper practice charge outright or conditionally dismissed the charge pursuant to its jurisdictional deferral policy."

The CBA is silent on the issue of requiring doctor certificates for sick leave during the holidays -- the thrust of PEF's improper practice charge. As PEF alleged that State had violated statutory rights under §209-a(1) (d) by failing to bargain over a past practice that was not specifically covered by the CBA the Appellate Division concluded that "the matter is not a breach of contract dispute and PERB's jurisdictional limitation was not triggered."

As to PERB's declining to exercise a merits deferral, which, in contrast to a jurisdictional deferral, "utilizes agreed-upon binding arbitration to determine contractual grievances in furtherance of the stated goal of the Taylor Law to encourage employers and public employees to agree upon dispute resolution procedures, the Appellate Division held that PERB's action was proper. Further, explained the court, such a decision merely results in a conditional dismissal and the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process."

As the "merits deferral policy has been judicially recognized in the past and the courts have generally deferred to PERB's interpretation in this regard, the Appellate Division ruled that "PERB's decision not to invoke such policy here was proper under the circumstances."*

Noting that a public employer violates §209-a(1) if it alters a past practice** that impacts a mandatorily negotiable subject, the court explained that "it is well-settled that sick leave is a mandatory subject of negotiation" as are the "procedures and policies for granting or terminating sick leave are mandatory."

Here, said the Appellate Division, the record demonstrates that, subject to certain exceptions, since 1982 RPC did not routinely require an employee to submit a doctor's certificate for each instance of unscheduled absence and none of these exceptions related to the new restrictions that RPC imposed. As the State has not presented any evidence demonstrating that it negotiated with PEF prior to altering this policy, substantial evidence supports PERB's determination that a past practice existed and that the State engaged in an improper practice by failing to engage in collective bargaining prior to altering the past practice to require medical documentation for individual days of sick leave.

Accordingly, the Appellate Division ruled that PERB had properly granted a remedial order*** in this matter which, among other things, mandated that the State to "cease and desist from enforcing the change in policy, except as detailed in RPC's original written policy."

* In reviewing these issues, a court's inquiry is "limited to whether PERB's decision was supported by substantial evidence which, in turn, depends upon whether there exists a rational basis in the record as a whole to support the findings upon which such determination is based.

** For a past practice to be binding, the Appellate Division said the practice must be "unequivocal and continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected bargaining unit employees that the practice would continue."

*** The remedial order also required the State to "[m]ake unit employees whole for wages and benefits lost, if any, as a result of [petitioner's] implementation of the at-issue sick leave usage policy concerning Christmas and New Year's holidays, with interest at the maximum legal rate."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07670.htm

Napping during work hours

The appointing authority filed disciplinary charges alleging that an employee [1] failed to make required patrol checks at the work site and falsely reported that he performed the required checks on his screen station log sheet and [2] neglect of duty by sleeping in his car during his shift time, such acts or omissions being in violation of the Department’s Uniform Code of Discipline.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls found the facility manager credibly testified that it was the practice to fill out the log sheet at the end of the shift and that he believed that the worker completed his checks at the required time.

Further, the ALJ concluded that the manager corroborated the worker’s testimony that he was on meal break and not required to be working when he was found sleeping in his car. It was not disputed that the employee was not required to perform work during their meal breaks even though they are paid during this break time. Credible testimony established that the employee was only required to keep his radios with him and stay on facility premises during the meal break. The ALJ found that the appointing authority has produced no evidence to establish that resting or even dozing off briefly during the meal break is prohibited or rendered the employee incompetent to perform his job.

Judge McGeachy-Kuls found that the appointing authority failed to establish that the employee engaged in the charged misconduct and recommended dismissal of the charges.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1451.pdf

New York courts lack subject matter jurisdiction to consider lawsuits involving disputes between and among rival factions of the Cayuga Nation

Certain members of the Cayuga Nation* [Petitioners] constituting one faction claiming authority to act on behalf of the Nation commenced this action, purportedly on behalf of the Nation, against certain individuals comprising a rival faction [Defendants] claiming similar authority.

To resolve these claims, said the Court of Appeals, New York courts would have to decide whether Defendants were, at various times, or remain legitimate leaders of the tribe, a question that turns on disputed issues of tribal law that are not cognizable in the courts of this state given the Nation's exclusive authority over its internal affairs.

Although Plaintiffs claimed otherwise, the court held that despite a limited recognition determination issued by the Federal Bureau of Indian Affairs [BIA] that recognized the Plaintiff faction as the tribal government for the purpose of distributing federal funds, it held that New York courts lack subject matter jurisdiction to consider this dispute, noting that The Nation relies on "the Council itself" and not any "written law, court, or body other than the Council . . . for resolving disputes that arise within the Council."

Noting that "Supreme Court reasoned that it lacked jurisdiction over the claims before it because 'the underlying allegations . . . are fundamentally founded upon the longstanding question of who has the right to lead the Nation' it could not adjudicate the dispute without interfering with tribal sovereignty and self[-]government'" and that the BIA urged the Nation to resolve the leadership dispute internally," reversed the order of the Appellate Division, with costs, "granted the motion to dismiss the complaint, and the certified question answered in the negative."

Opinion by Judge Feinman. Chief Judge DiFiore and Judges Rivera and Stein concur. Judge Garcia dissents in an opinion. Judge Wilson dissents in a separate dissenting opinion. Judge Fahey took no part.

*Footnote 1 in the court's decision states: "The Cayuga Nation is one of "[t]he [Six Nations of the Iroquois] Confederacy, or the Haudenosaunee' [People of the Longhouse], which refers to the historical alliance between the Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora Nations."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07711.htm

Publication of the findings made, and penalty recommended, after a disciplinary hearing by a New York City Office of Trials and Hearings Administrative Law Judge

At the close of a §75 disciplinary hearing held before the New York City Office of Trials and Hearings, the employee, a correction officer, moved to prohibit publication of the OATH Administrative Law Judge's report of findings and recommendation with respect to the penalty to be imposed, citing to §50-a of the Civil Rights Law. The correction officer contended that §50-a requires personnel records under the control of the Department of Correction be kept confidential.

OATH Administrative Law Judge Kevin F. Casey denied the correction officer's motion as untimely.

In addition, Judge Casey explained that [1] because OATH, as an autonomous agency and independent tribunal, its records are not under the control of Department of Correction and [2] the correction officer failed to overcome the broad presumption under the First Amendment in favor of public access to OATH proceedings.

The ALJ's ruling cites Matter of Victor v New York City Off. of Trials & Hearings, 174 AD3d 455, in which the Appellate Division held that Victor's claim that a disciplinary report and recommendation issued as the result of an OATH disciplinary hearing is confidential under Civil Rights Law §50-a was moot, explaining that "[f]or several years, the report has been publicly available from multiple sources, including the OATH and LEXIS websites" and as the court "cannot afford petitioner any meaningful relief," it dismissed Victor's appeal.

The decision is posted on the Internet at: 
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1663md.pdf.

______________

The Discipline Book

A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

______________

Human Rights Law as applied to independent contractors and immigrants.

Source: Jackson Lewis Newsletters 

New York City enacts legislation clarifying independent contractor protection under Human Rights Law

While courts have generally interpreted the New York City Human Rights Law as providing anti-discrimination protections to individuals performing services as independent contractors, effective in January 2020, amendments to the New York City Human Rights Law clarify such protections. Read full article ►

New York City issues new enforcement guidance on discrimination based on national origin, immigrant status

Continuing its pattern of issuing enforcement guidance on areas on which it focuses, the New York City Commission on Human Rights has released guidance reiterating the obligations of most employers, housing providers, and providers of public accommodations in New York City to avoid discrimination based on national origin and immigration status. Read full article ►

Dismissal during a probationary period

As a general rule, an individual appointed to a position on a permanent basis attains such status on the effective date of such "permanent appointment" but does not attain tenure in the position until [1] he or she satisfactorily completes his or her maximum period of probation or [2] by estoppel, acquisition, default, or otherwise by operation of law or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets 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.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Supreme Court denied the petition the filed the Plaintiff seeking to annul her former employer's [Respondent] determination terminating her probationary employment for unsatisfactory performance of her duties effective June 27, 2016 and granted Respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78. Plaintiff appealed the Supreme Court's decision.

Affirming the lower court's ruling, the Appellate Division explained that Plaintiff's Article 78 petition was untimely as she had been terminated effective June 27, 2016 and she had until  October 27, 2016 to challenge Respondents' determination, but did not commence her Article 78 proceeding until June 16, 2017.*

Citing Kahn v New York Dept. of Education, 18 NY3d 457, the Appellate Division rejected the Petitioner's argument that the statute of limitations applicable to initiating a CPLR Article 78 action "was tolled  until the criminal charges against her were dismissed" as unavailing. Further, opined the court, Petitioner's failure to timely notify her Employer of her arrest, a violation of Employer's regulations, constituted a good faith basis for terminating her employment.

* The Appellate Division noted that the record shows that Petitioner was dismissed due to an unsatisfactory performance rating and because of her failure to immediately notify her supervisor of her arrest rather than because of the arrest itself, as she claims.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07321.htm

___________________________

The Discipline Book 

A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

___________________________

Fracking in New York State: weighing risks and benefits

Below an abstract of an article by Dr. Robert Michaels [corresponding  author,  bam@ramtrac.com] and Dr. Randy W. Simon published in the Environmental Claims Journal.  The full text of the article can be downloaded from ResearchGate.net at no charge via the following URL:   

https://www.researchgate.net/publication/336533285_Fracking_in_New_York_State_Weighing_Risks_and_Benefits

Abstract*

The controversial decision to ban fracking in New York State, most notably in the Marcellus Shale formation, was informed by global, national, state, and local issues that have general relevance. Without prejudging whether fracking can be undertaken safely, we discuss the science of fracking, focusing primarily on widely reported public health and environmental risks, especially those associated with greenhouse gas emissions. Based upon such concerns, any reconsideration of the fracking ban in New York should include, at a minimum, consideration of imposing public and environmental health risk management requirements as proven feasible and successful via industry experience. Fracking should be viewed as one choice among alternative energy strategies, all of which pose risks, rather than simplistically classified as either safe or unsafe. Assuming that our energy needs will continue to grow, our goal should be to guide the evolution of our energy portfolio toward sustainable sources as they emerge as feasible energy alternatives.

* Michaels, Robert A; and Randy W. Simon.  Fracking in New York State:  weighing risks and benefits.  Environmental Claims Journal, 29(4), 253-68, Fall 2017; doi  10.1080/10406026.2017.1372392; online 27 November 2017.

How to prevent job loss in the public sector

Governing Daily has posted a link to an item noting that when budgets get slashed and hiring comes to a halt, municipalities need a way protect their most valuable resources – people and finances, the content of which was provided by CentralSquare Technologies.

Click here to LEARN MORE

The authority of an administrative agency to promulgate rules and regulations

The State University of New York Board of Trustees' Charter School Committee [SUNY/CSC], asserting that an independent licensure process was necessary to alleviate a teacher shortage at certain Charter School,  promulgated Regulations* that purported to establish an independent licensure process from that established by State Education Department and State Board of Regents [SED].

SED subsequently initiated a CPLR Article 78 action [Petitioner Proceeding 1] seeking to, among other things, a court order annulling the SUNY/CSC's regulations, contending that the Committee lacked such authority under Education Law §355(2-a), conflicted with Education Law article 56 [the Charter Schools Act] and other provisions of the Education Law, violated the separation of powers doctrine and were not promulgated in accordance with the State Administrative Procedure Act [SAPA].

In addition, a second Article 78 action was commenced by the New York State United Teachers [NYSUT], the United Federation of Teachers, Local 2 [UFT], the National Association for the Advancement of Colored People, New York State Conference [NAACP] and two teachers and a parent [Petitioner Proceeding 2].

Supreme Court granted the amended petitions/complaints, vacated the Regulations and enjoined their implementation. The court found, among other things, that the Education Department and the Commissioner have standing to bring the Article 78 action, that Education Law §355(2-a) does not authorize SUNY/CSC to promulgate regulations that alter minimum teacher certification requirements, and that the regulations were not promulgated in accordance with SAPA. SUNY/CSC [Respondents] appealed the Supreme Court's rulings.

Addressing the standing of SED to initiate the action in Proceeding 1, the Appellate Division, citing Matter of Graziano v County of Albany, 3 NY3d 475, observed that governmental entities have the capacity to sue only when it is based upon a "concrete statutory predicate ... expressly granted in enabling legislation or it may be inferred from review of the entity's statutory functions or responsibilities." The court then opined that "[p]ursuant to the Education Law, the Commissioner is required to "enforce all general and special laws relating to the educational system of the state and execute all educational policies determined upon by the [B]oard of [R]egents" (Education Law § 305 [1])" and "Education Law §308 provides that the Commissioner has the power and the duty 'to cause to be instituted such proceedings or processes as may be necessary to properly enforce and give effect to any provision in [the Education Law] or in any other general or special law pertaining to the school system of the state or any part thereof or to any school district or city.'"

Thus, the court concluded that the Commissioner, as the chief executive officer of the Education Department and the Board of Regents, has both express and implied capacity to bring Petitioner Proceeding No. 1.

In addition, however, to establish standing, a petitioner must show that it "ha[s] something truly at stake in a genuine controversy" by establishing "both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated."  Petitioner  Proceeding 1, asserting that [1] the Commissioner has exclusive statutory authority to promulgate regulations governing the certification of public school teachers, to certify qualified individuals to teach in public schools, and to register teacher preparation programs in this state, [2] the Regulations promulgated by SUNY/CSC conflict with Education Law §§2854(3)(a-1) and 3602-ee, which require teachers employed in charter schools and charter school pre-kindergarten programs to be certified according to the same requirements that apply to other public school teachers, with certain limited exceptions, and [3] the Commissioner averred by affidavit that the Regulations promulgated by SUNY/CSC "usurp the Commissioner's authority, contravene the purposes and policies of the Charter Schools Act and Education Law §3004 and will injure Petitioners in proceeding No. 1 and the students whose education they are charged with protecting by permitting unqualified persons to teach in SUNY-authorized charter schools.

The Appellate Division held that these allegations were sufficient to establish that the claimed injuries fall within the zone of interests sought to be protected by the Education Law and that the Commissioner has suffered "direct harm," consisting of "injury that is . . . different from that of the public at large."

In contrast, with respect to the Petitioners Proceeding 2, the Appellate Division ruled that none of the employee organizations, the NAACP, the teachers or the parents alleged facts that would support a claim for standing with respect to Petitioner Proceeding 2 or advanced only "tenuous and ephemeral" claims insufficient to constitute injury in fact. In the words of the court, "on this record, none of these [parties] show[ed] that at least one of [their] members would have standing to sue," and we need not examine the other elements of organizational standing." Accordingly, said the court, "the amended petition/complaint in Proceeding No. 2 should have been dismissed."

Turning to the merits of Respondents' arguments in Proceeding No. 1, the Appellate Division explained that it is a basic principle of administrative law that an administrative agency has only "those powers expressly conferred by its authorizing statute, as well as those required by necessary implication." Noting that the Education Law does not define the word "operation" in the sense relied upon by Respondents, the court concluded that "[i]n the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning" and in context, is " performance of a practical work or of something involving the practical application of principles or processes"**. This definition, opined the Appellate Division, with its emphasis on practical function, does not support Respondents' interpretation based on its argument that the operation or "practical work" of a charter school clearly includes the hiring and supervision of teachers "as such tasks are not the same as establishing requirements for the certification of teachers, which other public schools do not perform, and which involves policy determinations beyond a school's ordinary management and functioning."

Commenting that the Charter Schools Act consistently uses the word "operation" to refer to the practical administration, management and supervision of individual charter schools, the Appellate Division concluded that the inclusion of the word "operation" in Education Law §355(2-a) does not authorize the Committee to promulgate regulations pertaining to teacher licensure and certification.

In addition, the court found that the Regulations were in conflict with provisions of the Education Law that authorize the Commissioner to prescribe regulations governing the certification of teachers and that require most teachers in charter schools and pre-kindergartens to be certified in the same manner as other public school teachers.

Considering the guidelines first established in Boreali v Axelrod, 71 NY2d 1, the Appellate Division said it agreed with Supreme Court that the regulations "constituted a product of improper legislative policymaking by an administrative agency" and the Respondents in Proceeding 1 had violated SAPA by making "substantial revision[s]" in the proposed regulations before their adoption without a notice of revised rulemaking and an opportunity for additional public comment.

* 8 NYCRR 700

** (Merriam-Webster Online Dictionary, [https://www.merriam-webster.com/dictionary/operation])

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07458.htm

Improving Accessibility and Availability of Government Services

Government Technology recently analyzed state portals to determine the "digital maturity" of their processes for professional licensing, driver’s licensing, Medicaid applications, state disability benefits, and their child welfare system. The goal was to assess how accessible these services are and to what degree they have been digitized.

On Nov. 12 at 11am PT/2pm ET, Government Technology's panel of analysts and experts will discuss these findings, focusing on the state of digital maturity when it comes to key government processes and what agencies can do to improve the experience for citizens and staff.

Topics that will be considered include:

What states are leading the way when it comes to digital transactions and interactions – and what they are doing to stand out

The technologies and solutions available to make transactions more digital and mobile-enabled

How to get started on the digital maturity journey and what areas bring the biggest return on investment

You can register at no cost here!

If can not participate in this webinar on November 12, Government Technology suggests you  Register anyway to receive updates for access to the on-demand recording.

An administrative tribunal's consideration of all relevant evidence is critical to a court's finding that its decision was based on substantial evidence

Although the Appellate Division opined that it "is unquestionably within the province of the Comptroller to evaluate conflicting medical opinions and credit one expert over another," the court explained that the medical opinion relied on must be based upon, among other things, a review of all the relevant medical records.

Finding that in this instance there is not indications that the Retirement System's medical expert reviewed certain medical evidence submitted to the System, the Appellate Division said it agreed with the claimant for accident disability retirement benefits [Claimant] that there is no basis upon which to conclude that the System's medical expert's opinion would have remained unchanged in light of the certain findings that objectively supported the Claimant's medical expert's diagnosis.

As the Comptroller relied upon an expert opinion "that was not founded upon a review of all the relevant medical records," the Appellate Division concluded that substantial evidence does not support the Comptroller's determination that Claimant was not permanently disabled and annulled the Comptroller's determination and remitted the matter to the Comptroller "for further proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07473.htm

Award recipients named at the 5th Annual Local Government Innovation Conference

On October 22, 2019 New York State Secretary of State Rossana Rosado announced award recipients at the Department of State’s fifth annual Local Government Innovation Conference, including the Cities of Schenectady, Amsterdam and Gloversville; Essex County; Wyoming County and its partner local governments; and the Tug Hill Commission.

The New York State’s Division of Local Government Services is NY’s premier source of training and technical assistance to local governments. 

The State of New York is committed to strengthening state and local partnerships and works fervently to foster collaborative solutions to local challenges through the Local Government Efficiency, Training, and Community Development and Sustainability program initiatives. 

Learn more about the Division’s work by clicking here.

Law amends special accidental death benefit available to the survivors of police officers and firefighters killed in the line of duty

On October 22, 2019 Governor Andrew M. Cuomo signed legislation (Senate 3168-A/Assembly 4079-B) increasing special accidental death benefits [SADB] for "a widow or widower" and children of police officers and firefighters killed in the line of duty.

The new law, which takes effect immediately, increases cost of living benefits by 3 percent for a deceased's spouse or the deceased's children under the age of 18 or, if a student, under the age of 23 and certain "other eligible" individuals.

These bills also amend the General Municipal Law and the Retirement and Social Security Law by providing for the addition of 3 percent of the salary of the qualified deceased member used in the computation of the special accidental death benefit in cases where the date of death was before 2019.

In addition, these bills affect the SADB payable to eligible survivors of qualified deceased members of the:

New York CityEmployees' Retirement System (NYCERS);

New York CityPolice Pension Fund (POLICE); or

New York CityFire Pension Fund (FIRE)

and who were employed by one of the following employers in certain positions:

New York City Police Department - Uniformed Position;

New York CityFire Department - Uniformed Position;

New York City Department of Sanitation - Uniformed Position;

New York CityHousing Authority - Uniformed Position;

New York CityTransit Authority - Uniformed Position;

New York City Department of Correction - Uniformed Position;

New York City - Uniformed Position as Emergency Medical Technician (EMT);

New York CityHealth and Hospitals Corporation - Uniformed Position as EMT; or

The Triborough Bridgeand Tunnel Authority - Bridge and Tunnel Position.

======================

The Disability Benefits Handbook for fire, police and other public sector personnel

Focusing retirement for disability pursuant to 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 "on-the-job" and "off-the-job."

For more information click on http://booklocker.com/books/3916.html

Requesting authorization to treat the chronic pain that a Workers' Compensation benefits recipient was experiencing from his work-related injuries with medical marihuana

The Workers' Compensation Board among other things, sustained the employer's workers' compensation carrier's denial of a claimant's treating physician's "MG-2 Form" requesting a variance to permit treating his work-related injuries with medical marihuana.

A Workers' Compensation Law Judge [WCLJ] subsequently approved the variance request for causally-related medical marihuana treatment following a hearing and submission of additional medical evidence from claimant's treating medical provider which included a medical report in which the medical provider summarized claimant's pain management regimen and reviewed the various "beneficial effects of the medical mari[h]uana" that claimant had received.

The provider reported, among other things, that Claimant's sleep has improved and pain was reduced "since using medical marihuana," that medical marihuana "allowed him to participate more with his wife and children" and that he "[e]motionally feels much improved" as a result of using medical marihuana. The treating medical provider also noted that claimant was experiencing a "[f]inancial burden with continuing an optimal dose of the medical THC."*

The Workers' Compensation Board's reverse and vacated the WCLJ's decision, finding that "it could not approve a variance for treatment already rendered. Claimant appealed the Board's decision.

The Appellate Division, citing 12 NYCRR 324.3 [a], explained that a variance is a treating medical provider's request for authorization of medical care that varies from the Medical Treatment Guidelines, and, generally, the burden of proof to establish that a variance "is appropriate for the claimant and medically necessary shall rest on the [t]reating [m]edical [p]rovider requesting the variance," noting that 12 NYCRR 324.3 [a] [1] provides that "[a] variance must be requested and granted by the carrier, [the] Special Fund, the Board or order of the [Board] Chair before medical care that varies from the Medical Treatment Guidelines is provided to the claimant and a request for a variance will not be considered if the medical care has already been provided."

However, said the Appellate Division, in its view, although the Board properly denied the variance request for medical care, that applied only to the extent such care had already been provided. In contrast, the court opined that in "an instance such as here, however, where the claimant has a chronic pain condition necessitating ongoing treatment, the Board should have addressed the merits of claimant's variance request for prospective medical marihuana treatment."

The Appellate Division then remitted the matter to the Board "for consideration in the first instance of claimant's variance request for prospective treatment."

* Tetrahydrocannabinol [THC] binds with the cannabinoid 1 [CB1] receptors in the brain and produces a high or sense of euphoria. In contrast, Cannabidiol [CBD] binds very weakly, if at all, to CB1 receptors is reported to be able to interfere with the binding of THC and dampen its psychoactive effects.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07470.htm

Confusing permanent appointment with attaining tenure in the position

In Matter of Civil Serv. Employees Assn., Local 1000, AFSCME AFL-CIO v New York State Off. of Children & Family Servs., 174 AD3d 1206 [CSEA] and, similarly, in Ayers v City of Mount Vernon, Appellate Division, Second Department, 2019 NY Slip Op 07230 [Ayers], it appears that there some misunderstanding or misapplication of the words of art "permanent appointment" and "tenure" in determining the employment  status of a public employee while he or she is serving a probationary period.

In CSEA, the court states: "Respondent determined that, at the time of the termination, Sansky had 25 days remaining in his probationary period and that, because he had not yet been permanently appointed to the position of Cadet Leader 1, he was not entitled to a pretermination hearing under Civil Service Law §75 or the applicable collective bargaining agreement" [emphasis supplied].

In Ayers, the "Notice of Appointment" reported in the decision indicated that the plaintiff, Andrea L. Ayers, would serve a six-month probationary period, after which she would be appointed to her position permanently [emphasis supplied].

However, in both situations as described in these decisions the "appointment status" of the individual was that of a "permanent employee" but the individual had not attained a "tenured" appointment status in the position. This is significant with respect to the appointee's right to "notice and hearing" as a condition precedent to termination for cause and for other purposes set out in law.

As a general rule, an individual appointed to a position on a permanent basis attains such status on the effective date of such "appointment" but [1] does not attain tenure in the position until he or she satisfactorily completes his or her maximum period of probation or [2] attains tenure by estoppel, acquisition, default, or otherwise by operation of law or [3] attains tenure as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets 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.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Further, the distinction between a date of "permanent appointment" in contrast to the date on which an appointee "attains tenure" is illustrated in other provisions of the Civil Service Law such as §80.1 [layoff] where, in pertinent part, it provides that ... incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.

The CSEA decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05744.htm

The Ayers decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07230.htm

Excessive PCBs in the Hudson River: Attributable to Incompleteness of Dredging, or to Seven Years of Dredging? - Source: Environmental Claims Journal

Below is the abstract of an article by Dr. Robert Michaels [corresponding author, bam@ramtrac.com] and Uriel M. Oko recently published in the Environmental Claims Journal.   The full text of the article can be downloaded from ResearchGate.net at no charge, via the following URL:  

https://www.researchgate.net/publication/316464957_Excessive_PCBs_in_the_Hudson_River_Attributable_to_Incompleteness_of_Dredging_or_to_Seven_Years_of_Dredging

Abstract¹

GE recently completed a seven-year US EPA-mandated clamshell dredging project to remediate PCB contamination of the Hudson River. Post-project PCB levels in water and fish, however, are higher than anticipated, suggesting to some the need to extend the project to remove more PCB-bearing sediments. Our investigation of the effectiveness of the dredging project revealed that a previously unconsidered physical process must mobilize sediments as a result of dredge bucket closure. We also used computerized dredging data (‘bucket files’) to estimate the fraction of dredged sediments returned to the river instead of being deposited into waiting barges. We conclude that excessive post-project PCBs in the Hudson River predominantly are attributable to sediment mobilization by clamshell dredges. We predict that proposed extension of the dredging project would prolong mobilization processes, allowing PCBs to spread widely and enter ecosystems that include people, endangered fish such as sturgeon, and endangered birds such as bald eagles.

==================================

1 Michaels, Robert A; and Uriel M. Oko.  Excessive PCBs in the Hudson River:  attributable to incompleteness of dredging, or to seven years of dredging?  Environmental Claims Journal, 29(2):115-40, 2017; online:  http://dx.doi.org/10.1080/10406026.2017.1307007, 25 April 2017.

Applying the terms of an agreement settling a disciplinary action

During the course of Plaintiff's disciplinary hearing Plaintiff, represented by counsel, entered into a settlement agreement with the appointing authority [Employer] acting "on its own behalf and on behalf of its present and former ... employees." The settlement agreement provided that the Employer would discontinue the disciplinary proceeding and remove a letter of disciplinary charges from the Plaintiff's personnel file while Plaintiff agreed to retire from his employment with the Employer and to release the Employer and its employees "from all claims or causes of action he may have or claim to have . . . including any and all claims in any way arising out of, or related to, his employment with the Employer, or his separation from that employment."

Subsequently Plaintiff commenced an action to recover damages for defamation, alleging that the individuals [Defendants] named in his complaint, also employees of the Employer, had falsely accused him of actions that led to the disciplinary charges that were preferred by the Employer against him.

Defendants move to dismiss the complaint, submitting a copy of the settlement agreement that had been executed by the Plaintiff in connection with the discontinuance of the disciplinary proceeding that had been brought against him.

Notwithstanding Plaintiff's argument to the contrary, Supreme Court granted the Defendant's motion "for failure to state a cause of action" and Plaintiff appealed.

The Appellate Division explained that [1] the terms of the release contained in the settlement agreement clearly and unambiguously encompass Plaintiff's action and [2] Plaintiff failed to allege any unlawful or wrongful threat by the Employer that could serve as the basis of a claim of duress, which was the only ground the plaintiff alleged to void the release. Thus, opined the Appellate Division, "the release executed by the [Plaintiff] should be enforced according to its terms."

The Appellate Division noted the following elements with respect to a release that will be enforced by a court:

1. "A release is a contract, and its construction is governed by contract law;"

2.  "A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release";

3 "Where . . . the language of a release is clear and unambiguous, the signing of a release is a jural act 'binding on the parties';"

4.  "Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release"; and

5. "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden ... to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06588.htm

New York State's double jeopardy legal loophole closed

On October 16, 2019, New York State Governor Andrew M. Cuomo  announced that he had signed legislation (S.4572/A.6653) to close New York's double jeopardy legal loophole that protects individuals who are pardoned by a President from being prosecuted at the state level for the same offense. 

This key reform, which was an Attorney General's program bill, gives New York prosecutors discretion to pursue prosecution of criminal acts where they have jurisdiction.

School Board's abolishment of a position challenged by residents of the school district

The Board of Education [Board], on the recommendation of the School Superintendent, voted to abolish the position of assistant principal at the school district's Junior-Senior High School. The Board then created an "interim position" of District Administrator for K-12 Curriculum, Instruction, and Student Support Services.*

Certain residents of the school district [Petitioner] asked the Commissioner of Education to annul the Board's resolutions, contending that the Board's actions were arbitrary and capricious because the Board did not, among other things:  (1) discuss the resolutions at a public meeting; (2) provide a rational basis for their decision; (3) collaborate with district professionals; or (4) consider actual curricular needs, adverse consequences or relevant data.

The Commissioner ruled the Petitioners' appeal must be dismissed for lack of standing, explaining that an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights and only individuals who are directly affected by the action being appealed have standing to bring an appeal.

Here, said the Commissioner, Petitioners "merely assert that they are residents" of the school district and "[s]tatus as a resident of the district or as a parent of a student does not, in and of itself, confer capacity to seek review of the actions of a board of education with respect to its employees."

Noting that Petitioners also alleged that the Board had violated the State's Open Meetings Law, the Commissioner pointed out that the Open Meetings Law, Public Officers Law §107, vests exclusive jurisdiction over complaints alleging violations of the said law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner as the Commissioner has no jurisdiction to address the Open Meetings Law allegations.

* Certain residents [Petitioners] in the district had initiated a hybrid proceeding pursuant to CPLR Article 78 challenging the Board's abolition of the assistant principal position and then creating the position "interim position." Supreme Court dismissed Petitioners’ claims on the grounds that the Commissioner of Education had primary jurisdiction over such claims and Petitioners turned to the Commissioner for relief.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17762

Failure to serve a timely notice of claim otherwise required by law on a public entity

The Nassau BOCES Educational Administrators Association [Association] commenced this CPLR Article 78 seeking a court order annulling a determination made by the Board of Cooperative Educational Services of Nassau County BOCES and Robert Dillon, its superintendent, [Respondents], that certain BOCES employees are not entitled to annual leave under the controlling Collective Bargaining Agreement [CBA], alleging among other things, that Respondents had "breached the contract" between the parties.

The Respondents filed its answer to the Association's petition/complaint but simultaneously asked the court to dismiss the petition/complaint "for failure to serve a notice of claim." Supreme Court granted the Respondents' motion, in effect, dismissed the Association's petition/complaint and the Association appealed the Supreme Court's ruling.

The Appellate Division introduced its ruling by explaining that although there were "certain limited exceptions," service of a notice of claim is a condition precedent to the commencement of any action and/or special proceeding against any BOCES or BOCES officer, citing Education Law §3813[1].

One such exception, said the court, is where the parties to the contract have indicated their intention to make Education Law §3813[1] inapplicable by affirmatively acting in a manner that demonstrates that the statutory requirement is inapplicable, or, at least, "they have set out detailed procedures which are plainly inconsistent with those contained in that section."

In the absence of any such action by the parties, opined the Appellate Division, "the provisions of the statute are to be deemed part and parcel of any contract entered into by [the parties]."

Noting that here the controlling CBA set forth a detailed, three-step grievance procedure but limits the definition of the term "grievance" to disputes concerning the interpretation and construction of the CBA, the Appellate Division concluded that it was not clear, "as it must be," that the parties intended to make Education Law §3813[1] inapplicable, "particularly in a case such as this one, which seeks not only equitable relief concerning the interpretation of the CBA but also to recover damages for breach of contract."

Under such circumstances, the Appellate Division said that it agreed with the Supreme Court's determination to grant Respondents' motion to dismiss the petition/complaint consistent with requirements of Education Law §3813[1].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07260.htm

Applying the Principle of "Obey Now, Grieve Later"

Under the “obey now, grieve later” principle, employees are required to follow their supervisor's orders when given, and, if they have an objection, contest the order subsequently through formal grievance procedures.

A New York City public employee was served with disciplinary charges alleging that he had disobeyed a lawful order to report for drug testing and failed to timely provide medical documentation justifying his inability to travel to the clinic for testing.

Here, however, the worker claimed one of the recognized exceptions to the principle, a situation where obeying the order would present an imminent and serious threat to the worker’s health or safety.*

OATH Administrative Law Judge Garcia found that the worker made out an "imminent and serious threat" to the worker’s health or safety defense. The worker presented documentation from a hospital emergency room showing that he had fainted on a subway platform on his way to the clinic and was told by a doctor not to travel for several days.

Judge Garcia recommended that the charges against the employee be dismissed.

Other decisions in which ignoring the principle "work now, grieve later" was a consideration include  Ferreri v. New York State Thruway Authority, 62 N.Y.2d 855 [refusal to obey an order claimed justified as consistent with the advice of union officials], Scazafavo v Erie County Water Authority, 30 AD3d 1034, [refusal to comply with an order to submit to drug testing because the employee did not believe that he was subject to random drug testing] and Tanvikr v NYC Health and Hospital Corporation, 112 AD 3d 436, [employee refused to obey orders to undertake training for a new position after being reassigned].

* Other exceptions include situations in which it is indisputably clear that the order is beyond the power of management.

The OATH decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1454.pdf

Emerging green synergy in the science/religion relationship: from conflict to potentially planet-saving cooperation

The science/religion relationship has proved to be of great interest, given the crushing economic burden of global climate change on the insurance industry, and the close association of science denial and climate change denial in some religious communities.  Below is the abstract of an article by Dr. Robert A. Michaels [bam@ramtrac.com] recently published in the Environmental Claims Journal.  

The full text of the article can be downloaded from ResearchGate.net at no charge, via the following URL:

https://www.researchgate.net/publication/328051664_Emerging_Green_Synergy_in_the_ScienceReligion_Relationship_From_Conflict_to_Potentially_Planet-Saving_Cooperation

Abstract

Nature has inspired awe throughout history, stimulating scientific study often conflicting with theology.  Conflict is manifest as promotion of creationism and its euphemisms in school curricula, and in science denial, recently in the U.S. Government.  Unification, however, is an emerging reality for the science/ religion relationship, driven by convergent evolution of each toward saving our shared planet from ourselves.  No longer can religion deny science, nor science overlook the power of religious institutions toward achieving our common existential goal.  

==================================