Determining whether a provision in a collective bargaining agreement is subject to arbitration

Determining whether a provision in a collective bargaining agreement is subject to arbitration
Matter of Village of Johnson City v Johnson City Firefighters Assn., Local 921 IAFF, 2010 NY Slip Op 06034, decided on July 8, 2010, Appellate Division, Third Department

The collective bargaining agreement between the Johnson City Firefighters Association, Local 921 IAFF and the Village of Johnson City included a grievance procedure that provided that disputes "involving the interpretation or application of any provisions of [the CBA]" are subject to binding arbitration.”

Other provisions in the collective bargaining agreement provided that the Village [1] will not "lay-off any member of the bargaining unit" and [2] is not "required to 'back fill' hire additional members to meet staffing level of expired agreement."

When the Village Board voted to eliminate the then vacant position of Assistant Chief, Local 921 filed a grievance and ultimately served a demand for arbitration upon the Village and the Public Employment Relations Board.

The Village filed a petition in Supreme Court seeking to permanently stay the arbitration. Supreme Court holding that the grievance filed by the Local was subject to arbitration, denied the Village's application to stay arbitration, and granted the Union's cross claim to compel arbitration. The Village appealed the Supreme Court’s ruling.

The Appellate Division said that a two-part test is used to determine whether a grievance may be arbitrated: [1] Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance? and [2] Does the CBA indicate that the parties have agreed to arbitrate the dispute at issue?

Applying the first test, the Appellate Division said that contrary to the Village's claim that arbitration of the issue is barred, “Although public employers have the ‘undisputed management prerogative’ to eliminate civil service positions … ‘it is clear that a public employer is permitted to voluntarily agree to submit controversies over staff size or minimum staffing levels to arbitration.’"

Citing its decision in a recent dispute involving the same CBA, Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 72 AD3d 1235, in which it held that no conflict with Civil Service Law §80 or other statutory, decisional, or public policy prohibition barred arbitration of the Local's grievance against the Village's abolition of six firefighters' positions, the Appellate Division said that it found “no reason to conclude otherwise here.”

Turning to the second prong of the test, “did the parties have agreed to arbitrate the dispute at issue," the court said the decision turns on “whether the parties have so agreed is limited to determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Pointing out that the elimination of the vacant title of Assistant Chief caused no firefighter to lose employment and that the Local “concedes that the clause in the CBA providing that the Village will ‘not lay-off any member of the bargaining unit’ is not implicated,” the Appellate Division said that it could not agree that there was any "reasonable relationship" between the parties' dispute and any provision of the CBA.

The court also rejected the Local’s theory that eliminating the Assistant Chief position could potentially violate the CBS's out-of-title work provision if the Village assigned a firefighter to carry out the Assistant Chief's duties, holding that such an argument “is entirely speculative on this record.”

In the words of the court: “The CBA requires arbitration of any grievance involving the interpretation or application of any of its provisions. The CBA does not refer, explicitly or implicitly, to the elimination of vacant positions; thus, resolution of the parties' dispute does not involve interpreting or applying any of its provisions, and no breach of the CBA has been effectively alleged. In such circumstances, even a broad clause like the one at issue here cannot be construed to require arbitration.”

Reversing Supreme Court’s granting the Local cross-petition demanding arbitration, the Appellate Divisions said that Village’s application to stay arbitration was improperly denied and granted its petition to stay arbitration.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06034.htm

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively
Matter of Rosenblum v New York City Conflicts of Interest Bd., 75 AD3d 426

When the New York City Office of Administrative Tribunals and Hearings attempted to conduct an administrative hearing involving Stephen Rosenblum’s alleged infraction of the City’s “conflict of interest” law, Rosenbaum obtained a court order from Supreme Court in the nature of a writ of prohibition.

The Appellate Division affirmed the lower court’s determination, holding that Supreme Court properly ruled that Rosenbaum could seek a judgment prohibiting the enforcement of the conflict of interest law of the City of New York against him through an OATH proceeding as he was a “tenured pedagogue employed by the Board of Education of the City of New York.”

The Appellate Division explained that “the exclusive avenue to discipline a tenured pedagogue is Education Law §3020-a and thus it would be violative of the Education Law to allow an OATH hearing which does not require the same procedural protections as those provided to a tenured educator by §3020-a.

In addition, the decision notes that there was no requirement for exhaustion of administrative remedies as a condition precedent in an Article 78 proceeding “in the nature of a writ of prohibition,” where, as here, the "legality of the [underlying OATH] proceeding itself" was implicated.”

The writ of prohibition is one of a number of the ancient “English common law” writs and is 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."

Other English common law writs include the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" 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 its 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 common law writs.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05875.htm

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See The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. For more information about this 1272 page e-book. Click on http://thedisciplinebook.blogspot.com/

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Continuation of employment in a position upon its jurisdictional reclassification to the competitive class

Continuation of employment in a position upon its jurisdictional reclassification to the competitive class
Matter of Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v Mennillo, 38 A.D.3d 1113

Suzanne Burns was permanently appointed to the noncompetitive position of computer aide by the City of Schenectady in 2000. About four years later the Schenectady County Civil Service Commission jurisdictionally reclassified the position into the competitive class. The Commission then told Burns that she would be required to qualify by competitive examination in order to continue in the jurisdictionally reclassified position.

Burns sued, contending that she attained permanent competitive status when her position was jurisdictionally reclassified from the noncompetitive class to the competitive class. Supreme Court ruled that Burns was entitled to continue in her position as a computer aide without examination, despite the jurisdictional reclassification of the position to competitive. The Appellate Division agreed.

The Appellate Division rejected the Schenectady Civil Service Commission’s contention that Burns had to qualify by competitive examination to attain permanent competitive status in the reclassified position. Citing Matter of Bell v County of Warren, 111 AD2d 428, the court said that “Civil service employees, in the noncompetitive class, whose positions are subsequently reclassified into the competitive class may continue in their positions without examination.”*

According to the ruling, the record demonstrated that despite reclassification, Burns' job and responsibilities remained unchanged during her four years in the position.**

Accordingly, the Appellate Division ruled that Burns was entitled to maintain her employment without successfully completing a civil service examination, even though the position has been jurisdictionally reclassified from noncompetitive class to competitive class.

* See, also, Fornara v Schroeder, 261 NY 363. In Fornara the court said that an individual lawfully appointed to a position that is jurisdictionally reclassified to the competitive class is continued in the competitive class position without further examination.

** Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law]. Positions in the unclassified service, consisting essentially of elected officials, the members and staffs of legislative bodies, department heads and educators are described in Section 35 of the Civil Service Law

Arbitrator ordered employer to pay a portion of the employee’s costs in defending himself against disciplinary charges characterized as frivolous

Arbitrator ordered employer to pay a portion of the employee’s costs in defending himself against disciplinary charges characterized as frivolous
Board of Education of Florida Union Free School District v DePace, et al.,
301 A.D.2d 521; appeal denied, 99 NY2d 511

The Board of Education of Florida Union Free School District served disciplinary charges on Ronald DePace pursuant to §3020-a of the Education Law.

The §3020-a disciplinary hearing officer, after a hearing, dismissed 13 of the 14 charges filed against DePace as frivolous and ordered the school district to pay 80% of the costs incurred by DePace and the New York State Department of Education in connection with the hearing.

Florida an appeal pursuant to CPLR Article 75 seeking a court order modifying the hearing officers determination. Supreme Court dismissed the petition insofar as it purportedly was asserted against the New York State Department of Education and denied the petition insofar as asserted against Ronald DePace, confirmed the Hearing Officer's determination.

The Appellate Division affirmed the lower court’s determination “with one bill of costs.”

The court said that “ss the Supreme Court correctly determined, the amended petition insofar as it purportedly was asserted against the New York State Department of Education was a nullity because [the school district] failed to comply with the requirements of CPLR 401.

Holding that the Hearing Officer's determination that the school district should pay 80% of the costs incurred by Ronald DePace had a rational basis and was supported by the evidence in the record, the Appellate Division dismissed Florida UFSD’s appeal.

Randall Comments: Another case involving a court awarding attorney fees to the employee in the context of disciplinary action is Perez v Department of Labor, 244 AD2d 844.

Athough Hilton Perez was found guilty of misconduct and terminated from his position following a disciplinary hearing conducted pursuant to §75 of the Civil Service Law, Supreme Court annulled the determination, finding that was no evidence that the hearing officer who presided over Perez’s disciplinary hearing had been so designated in writing by the appointing authority as mandated in §75.2 of the Civil Service Law.

The court directed the department to reinstate Perez to his former position with back salary and benefits. Perez was also awarded legal fees and expenses totaling $19,907.84, $9275 of which reflected his legal expenses attributable to the Section 75 disciplinary action.*

The Department of Labor appealed. However, the Appellate Division rejected the Department’s claim that its failure to designate the disciplinary hearing officer in writing was “a mere technicality” as Perez’s termination was otherwise “substantially justified.”

The Appellate Division also affirmed the lower court’s award of attorney fees and expenses. In addition, the Appellate Division ruled that Perez was entitled to the fees and expenses incurred in connection with the department’s appeal to the Appellate Division challenging the underlying Supreme Court’s decision. It returned the case to Supreme Court for further action concerning this aspect of the case.

* Section 8601 (a) of the Civil Practice Law and Rules provides, in relevant part, that [A] court shall award to a prevailing party ... fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust.

A broad arbitration clause still must satisfy the “reasonable relationship test” for a court to grant a petition to compel arbitration

A broad arbitration clause still must satisfy the “reasonable relationship test” for a court to grant a petition to compel arbitration
Matter of Johnson City Professional Fire Fighters Local 921 v Village of Johnson City, Proceedings I and II, 2010 NY Slip Op 06029 [Appeals were consolidated by order of the Court]

In response to the Village’s initiating disciplinary action against certain members of Local 921, the Local filed a grievance demanding arbitration of an alleged breach of the collective bargaining agreement based on the Village’s unilateral selection of a hearing officer to preside over the disciplinary hearings.

On June 19, 2009 State Supreme Court Judge Ferris D. Lebous entered an order that, among other things, granted the Unions application to compel arbitration with respect its contract grievance concerning the selection of hearing officers [Proceeding No. 1].* On August 18, 2009, Judge Lebous entered an order denying the Village’s application for a permanent stay of arbitration [Proceeding No. 2], ruling that the issue was “referable to arbitration. The Village appealed both rulings.

The Appellate Division said “Whether a grievance may be arbitrated is decided by determining whether any statutory, constitutional or public policy prohibition bars arbitration of the dispute at issue and, if not, whether the parties agreed to arbitrate it.”

Citing Civil Service Law §75.2, the court said that the Village is statutorily vested with the power to designate a hearing officer in disciplinary proceedings.** However, this statutory power may be modified or superseded through collective bargaining or negotiation and a public employer may agree to submit disciplinary procedures to arbitration.

The Village argued that modification of such a statutory power must be voluntarily undertaken as the result of "a conscious choice" and that there was no such agreement.

The Appellate Division said that the CBA provides for arbitration of any dispute "involving the interpretation or application of any provisions of [the CBA]," a provision that the court had earlier described as broad. It then noted that "the court is limited to determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

In this instance the Appellate Division concluded that no such reasonable relationship existed between the CBA and the parties' dispute regarding the selection of a hearing officer. The Appellate Division explained that “The CBA does not mention the selection of disciplinary hearing officers; its sole reference to disciplinary proceedings is a requirement that any reprimand be conducted privately, in a manner to avoid embarrassment.”

In response to the Local’s assertion that that the CBA reflects the parties agreement to "follow [the Public Employment Relations Board's] rules of procedure for dispute resolution," which, in the Local’s view, "precluded the Village from unilaterally selecting a hearing officer."

However, said the court, the Local’s analysis would require the arbitrator to engage in contractual interpretation not only of the CBA, but also PERB's rules while the CBA despite the fact that the CBA limits the arbitrator's authority to disputes "involving the interpretation and application of any provisions of this agreement.”

In addition, the Appellate Division commented that the CBA's reference to the Public Employment Relations Board's rules of procedure is not pertinent as its applicability is expressly limited to disputes "involving the interpretation or application of any provisions of this agreement."

Reversing both Supreme Court’s rulings, the court said that “Even a broad arbitration clause is not unlimited in its scope; to satisfy the reasonable relationship test, a contractual interpretation must be 'at least colorable …. ' As no colorable interpretation of the CBA brings the selection of a disciplinary hearing officer within its general scope, we cannot conclude that the parties agreed to arbitrate their dispute on this subject.”

The practical effect of the ruling: The Appellate Division vacated the decision granting Local’s petition regarding the selection of a hearing officer [Proceeding No. 1} and granted the Village’s application to stay arbitration [Proceeding No. 2].


* The order enjoining further disciplinary proceedings and compelled arbitration of the grievance.

** Civil Service Law §76.4 provides that such statutory power may be modified or superseded through collective bargaining or negotiation whereby “such sections may be supplemented, modified or replaced by agreements negotiated between the State and an employee organization pursuant to Article 14 of the Civil Service Law.” Civil Service Law §75.2 has been relied upon for similar authority with respect to political subdivisions of the State while Education Law §3020-a provides the authority for disciplinary charges filed against an educator in the unclassified service to be considered by an arbitrator or arbitration panel and subject to the provisions of Article 75 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06029.htm

Six-month need for intermittent leave rendered employee unfit for duty

Six-month need for intermittent leave rendered employee unfit for duty
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation

Charlene Wisbey was employed by the City of Lincoln, Nebraska as an emergency dispatcher. The position required Wisbey to receive calls for emergency services and dispatch emergency service units on a regular basis. Because of the potential life-saving aspect of her position, the City Expected Wisbey to function accurately while working under considerable pressure and to think and act quickly and calmly in emergency situations.

During January-February, Wisbey used a significant amount of sick leave for an upper respiratory infection, for which she received a letter of warning. To avoid further discipline, the City recommended that Wisbey apply for intermittent FMLA leave, which she did. The medical certification supporting her request for intermittent FMLA leave cited recurring cycles of depression and anxiety that interfered with her sleep, energy level, motivation, and concentration. It also stated that Wisbey was unable to perform the essential functions of her job. The certification concluded that Wisbey would need to take time off intermittently over the next 6 months or longer.

Concerned about her ability to perform her job as an emergency dispatcher, the City directed Wisbey to undergo a fitness-for-duty exam (FFD), which she did. The FFD concluded that Wisbey suffered from chronic relapsing depression which intermittently interfered wit her ability to function at full capacity at work, and that she was not fit for duty, especially regarding her ability to concentrate and her ongoing propensity to miss work. The City terminated Wisbey as unfit for duty. Wisbey filed suit alleging violations of the ADA and FMLA.

With respect to the ADA, the Court rejected Wisbey's argument that the City did not have a legitimate, non-discriminatory business necessity to require her to submit to the FFD. Citing a decision of the Second Circuit in Gajda v. Manhattan &Bronx Surface Transit Operating Autho., 396 F.3d 187 (2d Cir. 2005), the Eighth Circuit agreed that representations made in an employee's FMLA medical certification that the employee is unable to perform the functions of his or her position may serve as a legitimate, non-discriminatory basis for employer to require an FFD.

With respect to the FMLA, the Court rejected Wisbey's claim that the City interfered with her FMLA rights, noting that she was never denied FMLA leave. Significantly, quoting prior Eighth Circuit opinions, the Court noted that the FMLA "does not provide leave for leave's sake, but instead provides leave with an expectation an employee will return to work after the leave ends," Throneberry v. McGhee Desha County Hosp., 403 F.3d 972, 978 (8th Cir. 2005), and that "the FMLA doe snot provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment's notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement." Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002).

Because Wisbey requested "intermittent leave" for "six months or longer," the Court concluded that she did not have a right to FMLA leave. Without the right to FMLA leave, the City "could not have interfered with Wisbey's rights under the FMLA." The Court also rejected Wisbey's FMLA retaliation claim, finding that the decision to terminate her was not casually related to her request for FMLA leave a month before, but was due to the results of the FFD.

Mr. Bosland Comments: Long-term intermittent absences with little predictability or notice is the bane of employers who need employees present to get the work done. Of course, from the perspective of the employee who needs intermittent leave due to their own serious health condition or to care for a family member with a serious health condition, this is why the FMLA exits- to protect the employee from having to make a choice between their job and caring for their own or a family members medical needs.

For my money, the Eighth Circuit went too far by stating that an employee who needs intermittent FMLA leave for "6 months or more" somehow forfeits the right to take FMLA leave. The statement is flat out wrong. If an eligible employee meets all of the criteria, the FMLA affords the employee the right to take up to 12 weeks of intermittent FMLA leave for their own serious health condition, or the serious health condition of a covered family member, over the course of a 12-month leave year. Except perhaps in the Eighth Circuit, an employer that denied an eligible employee intermittent FMLA leave after six months - even though they have a certification stating that they needed intermittent leave for more than six months - relying on Wisbey would, in my estimation, interfere with that employee's FMLA rights. That could cost the employer big time in an FMLA interference suit.

What employers should take away from Wisbey is that an employee who needs intermittent FMLA leave long-term or forever may not be qualified for their position. Obviously, this will depend on the job duties of the position, including whether regular and predictable attendance is required. If they are not fit for the position because of their FMLA-covered condition, employers do not have to continue to employ the individual. The fact that, if employed, the individual would have the right to take intermittent FMLA leave is not controlling. Think of it this way: the FMLA entitles an employee to leave. If the same FMLA covered-condition that entitles an employee to take leave also interferes with the employees’ ability to adequately perform their job when they are at work, the FMLA does not protect the employee from discipline for poor performance for the job they did when at work.

Employers would be well advised to proceed with caution in applying Wisbey. Other courts may less quick to find that an employee needing intermittent FMLA leave is unfit for duty and, therefore, may be terminated -particularly where the employee has not exhausted his or her annual entitlement to FMLA leave.

The decision is available at:
http://www.ca8.uscourts.gov/opns/opFrame.html

Sustaining an injury driving to work in agency vehicle not a performance of duties injury for the purposes of eligibility for GML §207-c benefits

Sustaining an injury driving to work in agency vehicle not a performance of duties injury for the purposes of eligibility for GML §207-c benefits
Matter of Cady v County of Oneida, Supreme Court, Oneida County, 14 Misc3d 1234(A), Affirmed 38 AD3d 1320

David Cady, a Deputy/Investigator for the Oneida County's Sheriff's Department, was assigned an unmarked Sheriff's vehicle. He was authorized to keep the vehicle at his residence and use it to transport himself to and from his work site. Cady was involved in an automobile accident while he was driving to work.* The accident occurred about 10 minutes before Cady was scheduled to be at work.

Cady was injured in the accident and applied for and received worker's compensation benefits. He also applied for disability benefits pursuant to §207-c of the General Municipal Law. His application for §207-c benefits was denied by the County.

The reason advanced by the County: GML §207-c provides benefits for injuries to a deputy sheriff who has been injured in the performance of his duties and that at the time of the accident Cady had not commenced his work duty shift and therefore was not in the performance of his duties.

Cady appealed. The hearing officer concluded that Cady was not entitled to GML §207-c benefits because he was not injured in the performance of his duties. The hearing officer’s determination was adopted by the County. Cady sued, seeking a court order overturning the County’s determination.

Cady argued that he was in the performance of his duties because he is "on call" twenty-four hours a day and could be dispatched to emergencies or to investigate criminal acts. In addition, he claimed, he was directed to be observant for accidents and criminal activity while en route to work using the assigned car. Cady also contended the he was assigned a "take-home" vehicle for the Department's benefit.

The County claimed its conclusion that “Cady was not in the performance of his duties at the time the accident occurred” was neither irrational nor an abuse of discretion. It said that Cady conceded that during his drive to work on the day of the accident he was not dispatched to conduct any investigation nor did he observe any criminal activity.

Supreme Court Judge Grow ruled that the County’s determination that Cady does not qualify for GML §207-c benefits is not irrational, not based on an error of law, not arbitrary, capricious, nor an abuse of discretion, and confirmed the Hearing Officer's determination.

* According to the decision, Cady was not at fault.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2006/2006_52585.htm

Expanding exemptions from FOIL to protect "technology assets used to maintain public information"

Expanding exemptions from FOIL to protect "technology assets used to maintain public information"
Chapter 154 of the Law of 2010

The Governor has signed into law a bill amending the State’s Freedom of Information Law [Public Officers Law §87]. The bill, which amends Paragraph (i) of subdivision 2 of Section 87* is intended to providing agencies with authority to withhold disclosing of certain records when responding to FOIL requests.

Subdivision 2.1. now reads: (i) if disclosed, would jeopardize [an agency's] the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures”

The amendment was proposed by the State’s Office of Cyber Security and Critical Infrastructure and takes effect immediately.

* Deleted language in [brackets]; new language in italics.

Appeal to the Commissioner of Education dismissed for failure to name a necessary party

Appeal to the Commissioner of Education dismissed for failure to name a necessary party
Appeal of J.S. from action of the Board of Education of the Jordan-Elbridge Central School District and Superintendent Marilyn Dominick regarding a transfer.
Decision No. 16,077

J.S. served as the district’s elementary school principal of the Jordan-Elbridge Central School District and was granted tenure in the tenure area of “administrator.”

On June 8, 2009, the board authorized an investigation of complaints concerning the district’s elementary school and on the following day J.S. was transferred to the position of Special Project Administrator.

Contending that the transfer was made for disciplinary reasons in violation of the due process rights afforded her under Education Law §3020-a, J.S. asked the Commissioner to direct that the district to reinstate her as Elementary School Principal and that all references to the transfer be expunged from district records.

The Commissioner dismissed the appeal “for failure to join a necessary party.” Commenting that “A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

The Commissioner explained that the remedy sought by J.S. is “reinstatement to her previous position as Elementary School Principal and that position is currently held by Elizabeth Primo, the interim Elementary School Principal, Primo’s rights would be adversely affected by a determination in [J.S.’s] favor.” Thus Primo is a necessary party and the appeal must be dismissed because of the failure of J.S. to name, and serve her, in the appeal.

In addition, the Commissioner stated that the appeal “must also be dismissed as untimely.” An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, "unless any delay is excused by the Commissioner for good cause shown." The record indicated that J.S was reassigned to the Special Project Administrator position on June 9, 2009 but her petition was not served until October 13, 2009.

Finally, the Commissioner said that J.S.’s appeal, absent the above noted procedural defects, would have been dismissed on the merits.

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

The Commissioner said that a board of education has "broad discretion in assigning members of its professional staff, so long as the employee’s tenure rights are not infringed upon." In this instance, said the Commissioner, notwithstanding J.S.’s claim that she was reassigned for disciplinary reasons and she was not accorded the due process protections of Education Law §3020-a, he did not find that J.S. had adequately demonstrate that her transfer was for disciplinary reasons and J.S. did not offered any evidence that disciplinary action was being contemplated prior to the reassignment.

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16077.htm

Supplements to an official’s salary

Supplements to an official’s salary
Informal Opinions of the Attorney General, 98-16

A county Industrial Development Agency is authorized to issue bonds and grant tax exemptions as a means of providing financial assistance to business projects approved by the Agency. The employment contract between the Niagara County Industrial Development Agency [NCIDA] and its executive director provided that the director was to be paid an annual salary of $69,000 and, in addition, “would receive 1.5% of the agency fees” collected by NCIDA for “bond projects.”

There may have been some question concerning paying the director additional compensation based on a percentage of the fees received by NCIDA as the contract also provided that “in the event the additional payment was held unenforceable or in conflict with State Legislation, a minimum additional payment of $3,000 per year would be paid ... in place of the percentage payment.”

When asked if either of these provisions violated State Law, the Attorney General advised the Niagara County Attorney’s office that in his view, both provisions constituted violations of Section 858-a(1) of the General Municipal Law. The Attorney General first noted that the granting of the percentage of the agency fee collected by the Agency was “contingent upon the granting of financial assistance,” and thus violated the statute. He then observed that the alternative formula for supplementing the director’s salary -- the additional payment of $3,000 per year -- was unlawful for the same reason. The Attorney General viewed the supplement as being contingent on NCIDA’s collecting fees for its financial assistance, commenting that “[p]resumably, if [such payment] was unrelated to financial assistance to clients of [NCIDA], it would be a fixed amount that is part of the base salary of the executive director.”

The County Attorney’s office also wanted to know what NCIDA should consider doing if the Attorney General decided that its arrangement with its executive director violated the General Municipal Law. The Attorney General said that “contract provisions that are contrary to statutory requirements intended to protect the public and prevent fraud are void and unenforceable [and] [t]herefore the unlawful payments may be recoverable.”