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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
February 28, 2020
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February 27, 2020
An employee suffering an injury on his way to work is not in service for the purposes of qualifying for accidental or performance of duty disability retirement benefits
The New York State and Local Police and Fire Retirement System [LPRFS] denied a state park police officer's [Officer] application for performance of duty disability retirement benefits. Officer had alleged that he was permanently incapacitated from the performance of his duties as a result of a slip and fall on his employer's premises.
 [P]hysically or mentally incapacitated [from] performance of duty as the natural and proximate result of a disability . . . sustained in such service"; and
 whether he actually "was in service turns on whether he . . . was performing job duties at the time of the injury,"
explained that the Comptroller is vested with the exclusive authority to determine all applications for retirement benefits, including whether an injury was sustained while in service, and that determination will be upheld if supported by substantial evidence.
February 26, 2020
Procedures concerning serving a second probationary period as an alternative to termination from the position
Plaintiff brought a proceeding pursuant to CPLR Article 78 challenging this action by the appointing authority contending:
[a] the six-month extension of his initial probationary term was not authorized under 4 NYCRR 4.5(b)(5)(ii) and thus he had attained tenure in his position and thus
[b] he was entitled to certain protections pursuant to §75 of the Civil Service Law which were not provided to him.
Supreme Court denied Plaintiff's petition and dismissed the proceeding whereupon Plaintiff appealed the Supreme Court's ruling to the Appellate Division. The Appellate Division affirmed the lower court's ruling, explaining, as relevant in this action:
February 25, 2020
Appointing authority's application for disability retirement filed on behalf of an employee injured on the job rejected
In this action to review a determination of New York State Employees’ Retirement System [NYSERS] denying an appointing authority’s [Petitioner] application for disability retirement benefits Petitioner filed on behalf of a Correction Officer [Officer] injured in the line of duty, the Appellate Division concluded that the NYSLERS determination “finding that [Officer] was not permanently incapacitated from performing the duties of a light-duty assignment” was supported by substantial evidence and thus “it will not be disturbed.”
Officer had sustained various injuries while attempting to subdue an inmate and underwent various surgical procedures. With the exception of performing light-duty work for one year, Officer remained out of work since the date of the incident, during which time Officer collected benefits pursuant to General Municipal Law §207-c.
Ultimately Petitioner filed an application for disability retirement benefits upon the Officer's behalf.* Although NYSLERS had initially evaluated Petitioners' application based upon whether Officer was permanently incapacitated from performing the full duties of a Correction Officer, following receipt of additional documentation from Petitioners, NYSLERS concluded that Petitioners' application should be assessed under the light-duty standard set forth in 2 NYCRR 364.3 (b). A Hearing Officer reached a similar conclusion, finding, among other things, that denial of petitioners' application was warranted because Officer was capable of performing light-duty work. The Comptroller adopted the Hearing Officer's findings and conclusions, resulting in Petitioner’s filing a CPLR Article 78 proceeding to challenge the Comptroller's determination.
Citing 2 NYCRR 364.3 [b] which provides that in the event an employee "has been continuously assigned to light, limited or restricted duties for at least two years prior to the date [upon which the] application for disability retirement benefits was filed with the Comptroller . . ., the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment." the Appellate Division rejectected Petitioners argument that application of the cited regulation is arbitrary and capricious given that Officer actually worked in her light-duty assignment for less than one year and “did not work in any capacity after September 21, 2010,” the Comptroller has held that the phrase "continuously assigned" — as applied in the context of 2 NYCRR 364.3 (b) — "does not mean continuous performance and is not interrupted by absence[s] from work while on sick leave."
In other words, said the Appellate Division, “the dispositive inquiry is whether the employee has been continuously assigned to light-duty work — not, as [Petitioners] argue, whether such employee has in fact continuously performed the light duties to which he or she was assigned”.
As the record reflected that Officer was continuously assigned to a light-duty position beginning in October 2009 — even though Officer concededly did not work at all after September 2010 and given the continuous nature of Officer's assignment, the Appellate Division held that the light-duty standard set forth in 2 NYCRR 364.3 (b) was properly applied to Petitioners' application for disability retirement benefits filed on behalf of Officer.
February 21, 2020
Pension boosting offered to encourage retirement or to encourage an individual not to retire may not be “pensionable compensation” for the purposes of the Retirement and Social Security Law
The Court opined that “[g]overnment pensions are based on employees' regular average salaries. All New York State employees rely on the integrity of the pension system. The protection against its manipulation is one of the Comptroller's primary responsibilities.
The genesis of the Program was a statutory retirement incentive program*** that offered additional pension benefits to certain public employees if they retired before the end of the 2002. The purpose of the retirement incentive was "to achieve cost-savings for public employers and to avoid layoffs of public employees in th[e] time of fiscal need" following the September 11 attacks. However the Authority employees [Petitioners] in this CPLR Article 78 action were key executives of the Authority and exempted from the Program. As an alternative, the Authority’s Chief Administrative Officer [CAO] recommended "a compensation adjustment program" that would "achieve [an] equivalent level of pension benefit for" employees, including [the CAO] who would be exempted from the retirement incentive.”
A Retirement System member's pension benefit depends upon their final average salary, i.e., "the average salary earned by … a member during any three consecutive years which provide the highest average salary" (Retirement and Social Security Law §443 [a]). The CAO suggested a salary increase to replicate the level of pension benefit that the executive employees would not otherwise be able to receive and the CAO’s proposal was adopted as a "retention program" the Petitioners signed letter agreements acknowledging their exemption from the retirement incentive and their acceptance of the "retention program," which was described as being "designed to provide a limited number of staff members with a parity' benefit" and received “the promised pay raises, which ranged from 4.5% to 11% of salary and were included in biweekly payroll checks, for periods ranging from nine months to ten years.”
Subsequently all Petitioners received determination letters from the New York State and Local Employees Retirement System [ERS], stating that the compensation adjustment payments should have been, or (in the case of the last three) would be, excluded from final average salaries for pension calculation purposes. ERS explained that the allowances were "retention payments made to delay retirement," and constituted "compensation paid in anticipation of eventual retirement." RSSL §431, however, provides that "[i]n any retirement or pension plan to which the state or municipality thereof contributes, the salary base for the computation of retirement benefits shall in no event include … any additional compensation paid in anticipation of retirement" (Retirement and Social Security Law §431 .”
The Hearing Officer found that the Authority had given "each of the applicants additional compensation to increase their final average salaries so that their pensions would equal what their pensions would have been had they been eligible for the retirement incentive and taken it in December 2002" and ruled that the ERS had acted reasonably in excluding the allowance payments from final average salary, concluding that ERS "had the authority to determine what payments were excludable as . . . made in anticipation of eventual retirement . . . , whether the applicant joined ERS before or after the effective date of § 431." The Executive Deputy Comptroller adopted these findings and conclusions and denied petitioner employees' applications for reconsideration.
The Appellate Division annulled the Comptroller's determination, granted the petition, and remitted the matter to the Retirement System (164 AD3d 1038 [3d Dept 2018]). The Court concluded that the "payments are more appropriately characterized as . . . made to delay petitioners' retirements, not to artificially inflate their final average salary in anticipation of retirement."****
RSSL §431 provides that "retirement benefits are to be computed on the basis of an employee's regular salary and not on any kind of termination pay or other form of additional compensation paid in anticipation of retirement." The salary base for the computation of retirement benefits “shall in no event include any of the following earned or received, on or after April first, nineteen hundred seventy-two:”
3. Any additional compensation paid in anticipation of retirement; or
4. That portion of compensation earned during any twelve months included in such salary base period which exceeds that of the preceding twelve months by more than twenty per centum."
However “pension boosting” may be made available to encourage individuals “to retire early” by promising an enhanced pension or may be offered in other contexts, including in exchange for a promise not to retire, as demonstrated by the decision in Thompson v New York State Teachers' Retirement Sys., 78 AD3d 1456.
Finding that the record contains substantial evidence supporting the Comptroller's determination that the Authority provided the compensation adjustments “to artificially increase the executive employees' final average salaries so that, upon retirement, they would receive pension increases roughly equivalent to those they would have received under the retirement incentive program” and supports the conclusion that the compensation, by design, was made in anticipation of petitioner employees' retirement within the meaning of the statute, the Court of Appeals reversed the ruling of by the Appellate Division and dismissed the petition.
* The decision characterizes such employees as “ executive employees” of the Authority.
** The Authority is a participating employer in the New York State and Local Employees Retirement System.
*** See Chapter 69 of the Laws of 2002.
**** See 164 AD3d at 1040.
The decision is posted on the Internet at:
February 20, 2020
Employee alleges employer ignored her sexually hostile work environment and the negligent supervision claims
Following a trial, a jury found in plaintiff's favor on the sexually hostile work environment and the negligent supervision claims against Defendants and dismissed the sexual harassment claim against a named individual defendant. Plaintiff was awarded $300,000 in damages on her sexually hostile work environment claims and $200,000 in damages on her negligent supervision claim.
Supreme Court denied Defendants' subsequent motion to set aside the jury verdict or, in the alternative, to order a new trial, and partially granted plaintiff's request for counsel fees. Defendants appeals from the judgment entered upon the jury verdict and from the order denying its postverdict motion. Plaintiff cross-appeals from that part of the order as partially denied her request for counsel fees.
Considering Defendants' argument that the jury verdict was unsupported by legally sufficient evidence and against the weight of the evidence the Appellate Division said that "A verdict may be set aside as unsupported by legally sufficient evidence where 'there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial.'" In contrast, citing Matter of Grancaric, 68 AD3d 1279 the court explained that a jury verdict will be stricken as against the weight of the evidence "where the proof so preponderated in favor of the unsuccessful party that the verdict could not have been reached on any fair interpretation of the evidence."
February 19, 2020
February 18, 2020
Arbitration award challenged on the grounds the arbitrator exceed his authority and it violated strong public policy
The decision is posted on the Internet at:
February 14, 2020
Determining if benefits set out in a collective bargaining agreement survive the expiration of the agreement
Subsequently one village [Respondent] withdrew from the arrangement effective May 31, 2012 and formed its own police force while the remaining six villages [Plaintiffs] extended the SVC for one year, and then executed a new Six Village SVC.
February 13, 2020
February 12, 2020
February 11, 2020
Portions of an arbitration award challenged as moot, exceeding the authority of the arbitrator and "nonfinal and indefinite"
Citing Hearst Corp. v Clyne, 50 NY2d 707, the Appellate Division vacated this portion of the arbitrator's award explaining that it "is well established that an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment."
Because the 2017-2018 school year had concluded, said the court, a determination in this appeal would have no effect on the parties' rights.
The court also agreed with the District that the arbitrator had exceeded his authority by requiring it to make the elimination of teaching positions in accordance with the "School Based Development Guide", opining that an arbitration award may be vacated where an arbitrator, 'in effect, made a new contract for the parties in contravention of [an] explicit provision of [the] arbitration agreement which denied [the] arbitrator power to alter, add to or detract from" the collective bargaining agreement (CBA). Noting that the CBA does not require the District to make its staffing or budgetary decisions in accordance with the Guide, the Appellate Division ruled that the arbitrator contravened an express provision in the CBA that denied him the "authority to modify or amend it."
The Appellate Division agreed, indicating that an award is nonfinal and indefinite if "it leaves the parties unable to determine their rights and obligations." The court said that here the language in the award was "nonfinal and indefinite" except to the extent that it prohibited the District from discriminating on the basis of "Union membership status."
Concluding that the Supreme Court had erred in confirming these parts of the arbitration award challenged by the District, the Appellate Division modified the order and judgment accordingly.
February 10, 2020
On February 10, 2020, New York State Comptroller Thomas P. DiNapoli issued the following audits.
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html
A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on
The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Challenging Adverse Personnel Decisions
- COVID-19 - New York State maps and data
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- St. Lawrence County Civil Service Web Site
Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.
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