Out of title work assignment

Out of title work assignment

Murphy v Herik, NYS Supreme Court [Not selected for publications in the Official Reports]

Out-of-title work usually refers to an employer assigning an individual to perform the work typically part of the duties of the incumbent of a higher-level position. Section 61.2 of the Civil Service Law provides that:

Prohibition  against out-of-title  work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

Many collective bargaining agreements require that if the employer assigns an individual to perform "out-of-title" work for more than a designated period of time, he or she is to be compensated at the appropriate pay level of the higher position.

Detailing is used to describe a form of assigning an individual to perform "out-of-title" frequently encountered in law enforcement organizations. Its most common manifestation: assigning a police patrol officer to perform the duties of a detective or investigator. Officers detailed to perform the duties of a detective or an investigator typically are not permanently appointed to the position. Section 58.4.c(ii) of the Civil Service Law was enacted to address this practice and provides that:

In any jurisdiction, other than a city with a population of one million or more, which does not administer examinations for designation to detective or investigator, any person who has received permanent appointment to the position of police officer or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation [emphasis supplied].

By its terms, Section 58.4.c(11) does not cover New York City police officers. However, Section 14-103(b)(2) of the City's Administrative Code tracks Section 58.4.c[ii] and provides that a "permanent police officer who temporarily perform the functions of what is otherwise considered to be detective work for periods of 18 months or more are to be appointed as detectives and be compensated as such."

Michael Murphy, a New York City police officer, was assigned to the Harbor Unit, Vessel Theft Team, in January, 1997. His duties included the investigation of stolen marine equipment; returning stolen property to its rightful owner and maintaining a working relationship with insurance companies for the purpose of identifying insurance fraud. After he had been performing these duties for over three years, Murphy's commanding officer, John Cassidy, recommended that Murphy be appointed to third-grade detective. Cassidy's justification for his recommendation: Murphy's primary responsibilities were those of a detective.

The Department rejected Cassidy's recommendation and Murphy filed a grievance challenging its decision. The Department denied Murphy's grievance and he commenced an Article 78 proceeding in March of 2001 seeking a court order directing his appointment as a detective.

The Department asked the court to dismiss Murphy's petition. It contended that its rejecting Murphy's appointment as a detective was justified because the Harbor Unit was specifically excluded from the career-path for detective by a lawful Department policy. Accordingly, the Department argued, Murphy can not be deemed to have been performing detective work as part of the Harbor Unit and therefore he was not eligible for appointment as a detective pursuant to Section 14-103(b)(2) of the Code.

The Department also argued that Murphy was aware of the fact that the Harbor Unit was not on the career path for detective when he accepted the assignment.

Murphy, on the other hand, contended that he was eligible for appointment as a detective pursuant to the Code, citing Ryff v Safir, 264 AD2d 349, as authority for this claim. In Ryff, the Appellate Division ruled that the fact that the Harbor Unit was not included in the Department's career-path for detective did not exempt it from the provisions of Administrative Code Section 14-103(b)(2).

Supreme Court Justice Madden rejected the Department's argument that appointment as a detective does not depend on the actual work performed but rather on whether or not the position is on the career path for detective. Justice Madden said that the legislative intent in both Section 58.4 of the Civil Service Law and Section 14-103(b)(2) of the City's Administrative Code "was to prevent the department, for budgetary reasons, from using non-detective track officers in detective track positions, while denying the officers the benefit of those positions."

In effect, the court decided that the Department's justification for its action placed form over substance. As Murphy's duties were substantially similar to that of detective, Justice Madden ruled that Murphy was entitled to appointment as a detective pursuant to Section 14-103(b)(2). Justice Madden pointed out that there was no dispute concerning Murphy's performing criminal investigative duties, noting that Murphy was awarded "Investigator of the Year" from the International Association of Marine Investigators.

Deciding that Department's ruling that Murphy was precluded from being appointed as detective simply because his position was not included in its designated "career path" for detectives was arbitrary and capricious, Justice Madden granted Murphy's petition and, in addition, ruled that Murphy was entitled to compensation as a detective beginning 18 months subsequent to his original appointment to the Harbor Unit.

The lesson of the Murphy decision is that employees may not required to perform out-of-title duties except in cases involving a temporary emergency. If they are assigned, or permitted, to perform out-of-title duties when there is no temporary emergency, the employer may be held liable to pay any resulting salary differential.

One of the administrative procedures available to an individual who believes that he or she is being to required to perform higher level "out-of-title" work is to request that his or her position be reclassified to the higher level title -- i.e., a position allocated to a higher salary grade.

This is usually accomplished by filing a request for reclassification of the position with the responsible civil service commission or department.

The employer, also, may initiate a request for reclassification of a position. In some cases, the employer and the employee may file a "joint" application to have the position reclassified. Concerning a related point, classification and reclassification of a position focuses on the duties of a position while allocation or reallocation of a position is concerned with placing the position in the proper pay grade or setting its appropriate salary rate.

However, approval of an "out-of-title" reclassification application does not mean the individual has the right to be continued in the reclassified title. If a position in the competitive class is reclassified, the individual will have to qualify for permanent appointment to the new title by examination, despite the fact that he or she had been "performing the duties of the higher level position" and was instrumental in having it reclassified. The same applies with respect to qualifying for appointment to a higher-level position in the noncompetitive class following reclassification of the lower level position.

In some instances this could result in the individual's being "reclassified out of his or her job." Some modest protections, however, may be available to the individual whose position has been reclassified to avoid this result, at least temporarily. For example, insofar as "employees of the State" are concerned, the State Civil Service Commission's Rules, [4 NYCRR 4.1(d) provide that:

A promotion eligible list shall not be certified for filling a permanent vacancy created by upward reclassification of a permanently encumbered position where promotion from such list would require the layoff of a permanent employee or the reassignment of a permanent employee to a different geographical location; but this provision shall not apply if the incumbent whose position was reclassified has, following such reclassification, twice failed to qualify for promotion to the reclassified position].

4 NYCRR 4.1(e) provides similar protections with respect to the certification and use of an open competitive eligible list.

Many municipal civil service commissions have adopted similar rules.

N.B. The Rules of the State Civil Service Commission specifically provide that "[e]xcept as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service."

In another New York City Police Department [NYPD] "service as a detective" case, Finelli v Bratton, App. Div., First Department, the issue was whether it was arbitrary and capricious for NYPD to determine that service by former Transit Authority [TAPD] police officer Nicholas G. Finelli did not qualify as "detective track" service.

According to the decision, such credit was properly denied since it was not established that Finelli performed investigative duties comparable to those performed in units given a detective track status after the TAPD's merger with the NYPD. In addition, the court said that detective track credit was properly refused for periods during which police officers were suspended from duty or on restricted, limited or modified duty.

PERB determinations

PERB determinations

Ruling by the Public Employment Relations Board

Community of interest: Individual, although paid at a supervisory pay level and substituted for the supervisor when the supervisor was absent, was determined to share  a community of interest with unit employees and thus could not be excluded from the negotiating unit without evidence that the individual performed supervisory duties such as assigning work and overtime to employees, evaluating employees, approving leave requests, disciplining workers, or other supervisory duties. Local 282 and Regional Transit Service, Inc., 35 PERB 3022

Duty of fair representation: Unit member's dissatisfaction with his or her representation by the union in a grievance that resulted in a negotiated settlement rather than proceeding to arbitration, did not, without more, establish a prima facie case that the union breached its duty of fair representation as a member's "disagreement with the tactics utilized or his or her dissatisfaction with the quality and extent of representation" does not constitute a breach of the union's duty of fair  representation. Bruns and Council 82, 35 PERB 2023

Lack of jurisdiction: PERB declined to assume jurisdiction to consider an individual's improper practice charge alleging the employer violated Sections 209-a.1(a) and 209-a.1(c) of the Civil Service Law because the individual was not a public employee within the meaning of the Taylor Law, observing that the individual was not on a state payroll and had neither paid union dues nor paid an agency fee to the collective bargaining unit's representative. Nagy and SUNY at Buffalo, 35 PERB 3025.

Similarly, in Arce and NYC Board of Education, 35 PERB 4576, a PERB Administrative Law Judge determined that SEIU Local 74 did not violate its duty of fair representation by failing to process a grievance filed by an individual independently hired by, and who worked directly for, a public school custodian because the individual was not a public employee as defined by the Taylor Law and thus he was not in the negotiating unit.

Negotiating a new practice: PERB rejected the union's argument that its burden of proof that the employer failed to negotiate an alleged change in a personnel practice is satisfied if it shows that the personnel practice is, itself, a mandatory subject of collective negotiations, ruling that the charging party must demonstrate 8-the existence of an "old practice" by showing that it was unequivocal, had been in existence for a significant period of time and that unit employees could reasonably expect the practice to continue. PBA-NYS Troopers and Division of State Police, 35 PERB 3024

Personal interests not protected by Taylor Law: An employee making complaints unrelated to any specific provision in the collective bargaining agreement and that essentially concern matters of private, personal interest, has not established any basis for prosecuting a claim that he or she was subjected to adverse personnel action because of his or her engaging in a protected activity within the meaning of the Taylor Law. Westhampton Beach Police PBA and Village of Westhampton Beach, 35 PERB 3026

Union animus: PERB rejected its Administrative Law Judge's conclusion that the Town of North Hempstead was guilty of union animus based on a finding that "but for" the union's president using "union business" release time, he would not have been involuntarily transferred to another unit because the Town's explanation for the transfer -- the need to reorganize a department -- was "largely unrebutted by the Union" and thus there was no basis to hold that the transfer was the result of improper motivation on the part of the Town. CSEA Local 1000 and Town of North Hempstead, 35 PERB 3027.

School administrators did not violate a student’s Constitutional right to “free speech” when it disciplined her for harassing a fellow student via after-school posting on the Internet

School administrators did not violate a student’s Constitutional right to “free speech” when it disciplined her for harassing a fellow student via after-school posting on the Internet

Kowalski v. Berkeley County Schools, United States Court of Appeals, Fourth Circuit, Docket #10-1098

A student sued West Virginia’s Berkeley County School District contending that it had violated her Constitutional right to free speech when it suspended her for creating a MySpace page ridiculing a fellow student. A federal District Court judge granted the school district’s motion for summary judgment, which ruling was affirmed by the Fourth Circuit U.S. Circuit Court of Appeals.

In this 42 USC 1983 action the court found that the student’s after-school “conduct was sufficiently connected to the school environment so as to implicate the [district’s] recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and collides with the rights of others.”

The full text of the decision is posted on the Internet at:

http://caselaw.findlaw.com/us-4th-circuit/1575495.html

Retiree's "double dipping" for retirement benefits prohibited

Retiree's "double dipping" for retirement benefits prohibited

Williams v McCall, 283 AD2d 808

John Williams, Jr. initially joined the New York State and Local Employees' Retirement System [ERS] in 1962 while employed by Creedmoor State Hospital. In 1969, he became a member of the New York City Police Department and became a member of the New York City Police Pension Fund [Fund]. In 1997 Williams began working full time for both the Police Department and Creedmoor simultaneously. This continued until he retired from the Police Department in 1990.

In 1990 Williams began to receive retirement benefits from the Fund while continuing to work full time at Creedmoor. He retired from Creedmoor in 1995 and began receiving benefits from ERS as well.*

Ultimately, ERS ruled that for purposes of calculating William's ERS retirement benefits, his employment at Creedmoor after July 3, 1990 could not be counted as service credit because he was receiving pension benefits from the Fund at that time. Williams appealed this ruling.

The Appellate Division affirmed the Retirement System's decision. The court said that it is well settled that “[a]s a general rule, an individual who is retired from service with the State, a municipal corporation or a political subdivision of the State may not engage in the practice known as 'double dipping', where [such the individual] simultaneously receives pension benefits and compensation for post-retirement public employment or service,” citing Incorporated Village of Nissequogue v New York State Civil Service Commission, 220 AD2d 53.

The Appellate Division ruled that because Williams began receiving pension benefits from the Fund in 1990 and continued to receive them during his employment at Creedmoor, the Comptroller had a rational basis for denying him service credit for this time period in calculating his ERS retirement benefits. The decision also points out that even if Williams “was specifically authorized to continue his post-retirement public service (which he was not on this record),” Retirement and Social Security Law Section 213(b) specifically prohibits the grant of service credit for such post-retirement employment.

The Appellate Division said that the fact that Williams worked for Creedmoor before and during his employment with the Police Department “does not compel a contrary conclusion.”

* Williams answered “no” in response to the question: are you a member of “any other Public Retirement System in the State” when he filed his application for ERS benefits in 1995.

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Fella v Rockland County, 297 AD2d 813

Rockland County Director of Hospitals Peter J. Fella was charged with sexual harassment. Found guilty, the County Executive imposed the penalty of suspension without pay for thirty days. Fella sued in an effort to have County Executive's action annulled.

The harassment charge had been filed by Jovita Catalan, a county employee. Her complaint alleged that Fella appointed Anne Gonzales, with whom he had a “romantic relationship,” to the position of Assistant Director of Nursing.

Catalan filed her complaint pursuant to the Rockland County Equal Employment Opportunity Policy [RCEEOP] alleging she was subjected to “discrimination, harassment or retaliation” on January 4, 2000, the day that the Fella told her that she would not be appointed to the Assistant Director position. Catalan contended that Gonzales was less qualified than she was and that Gonzales was appointed because she was Fella's girlfriend.

After an investigation, the Rockland County Director of Employee Rights and Equity Compliance concluded that Fella's promotion of an employee with whom he had a personal relationship created a hostile work environment.

Supreme Court Judge Nelson ruled that Fella’s conduct in promoting his paramour may have constituted poor judgment, and may subject him to discipline on other grounds, but did not constitute sexual discrimination prohibited by the RCEEOP. As the County failed to establish that this single instance of alleged favoritism based on a sexual relationship was punishable under the RCEEOP, Supreme Court annulled the determination and remitted the matter to the County for further proceedings.

The Appellate Division affirmed the lower court’s ruling, observing that the relevant provisions of the RCEEOP:

Prohibits discrimination in hiring and promotion on the basis of gender or sex or sexual orientation;

Encourages advancement for qualified individuals regardless of gender or sex or sexual orientation; and

Provides that employment decisions shall be made on the basis of merit, fitness, and equality of opportunity and without discrimination on the basis of gender or sex or sexual orientation.

The RCEEOP also states that sexual harassment is a form of employment discrimination based on gender.*

The Appellate Division said “that an isolated act of preferential treatment of another employee due to a romantic, consensual relationship” does not constitute sexual discrimination under either federal or State Law. In the words of the court, Preferential treatment, favoritism, and cronyism, while unjust and unfair, do not constitute sexual discrimination.

 

Noting that there was no evidence that Fella discriminated against employees on the basis of gender or that he made unwelcome sexual advances or demands on employees, the finding that Fella created a hostile work environment in violation of the RCEEOP was ruled arbitrary, capricious, and without a rational basis. The Appellate Division concluded that compliant was properly annulled by the Supreme Court Judge.

In another “favoritism case,” DeCintio v Westchester County Medical Center, 821 F2d 111, cert. denied, 484 U.S. 965, the U.S. Circuit Court of Appeals, 2nd Circuit, decided that the selection of a woman romantically involved with her supervisor for promotion did not constitute unlawful gender discrimination within the meaning of Title VII insofar as her male co-workers were concerned.

In DeCintio, male employees sued, complaining that their supervisor had tailored the job requirements for the position in such a way as only his woman friend could qualify. This, they argued, was discrimination on the basis of sex within the meaning of Title VII.

The Circuit Court decided that as any female employee interested in the job would have been in the same position as the male employees, there was no sex discrimination involved. It was the “special relationship” between the supervisor and his woman friend rather than sex discrimination that had resulted in the preferential treatment to which the male employees had objected. While unfair, said the Court, the supervisor's actions did not constitute a violation of Title VII.

* The RCEEOP defines sexual harassment as unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which "has the purpose or affect of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment."

Undertaking background investigations may be critical in defending “negligent hiring” claim

Undertaking background investigations may be critical in defending “negligent hiring” claim

Murray v SUNY Research Foundation, 283 AD2d 995

The Murray case illustrates some of the factors that courts consider in resolving cases involving allegations that the employer was guilty of “negligence” in selecting a particular individual for employment based on an allegation that the employer should have conducted a more intensive investigation of the individual's background than was actually made.

Teresa Murray sued the SUNY Research Foundation [Foundation] and the Rochester City School District [District] after she learned that her son was sexually assaulted over a period of months by an employee of the Foundation.

The Research Foundation had employed the individual to coordinate the Educational Talent Search program in the District's school that Murray's son attended. The alleged sexual abuse took place during regular school hours. Murray's son, however, was not enrolled in the Educational Talent Search program coordinated by the Research Foundation’s employee.

The Appellate Division, Fourth Department, sustained a Supreme Court justice's granting the Foundation's motion for summary judgment. It said that the Foundation satisfied its initial burden by establishing, as a matter of law, that it was not negligent in hiring or retaining the individual, and that Murray failed to raise any issue of fact.

According to the ruling, the Foundation introduced evidence demonstrating that it interviewed the employee extensively and obtained written references prior to its hiring him. Finding that the procedures followed by the Foundation revealed nothing that would lead a reasonably prudent person to suspect that he had “dangerous propensities” to sexually abuse children, the court concluded that the Foundation had “no duty to investigate further” before hiring” the employee. The Appellate Division based its conclusion on the fact that there was no evidence in the record to show that a routine background check would have revealed that the employee had a propensity to harm children.

Another defendant, the Rochester City School District, also asked the trial court to dismiss Murray's complaint against it. Its motion was denied. Sustaining the lower court's ruling, the Appellate Division said the Supreme Court justice properly denied the motion of the District seeking summary judgment dismissing the complaint against it.

The court explained that the District has “the duty to exercise the same degree of care and supervision over the pupils under its control as a reasonably prudent parent would exercise under the same circumstances.” The standard for determining whether this duty was breached: “would a parent of ordinary prudence placed in the identical situation and armed with the same information invariably have provided greater supervision.”

The court rejected the District's claim that it could not be held liable without actual or constructive notice of the employee's behavior. According to the ruling, “the criminal intervention of third parties may, however, be a 'reasonably foreseeable' consequence of circumstances created by the defendant.”

The operative factor here: Murray's son was permitted to meet alone with the coordinator of a program in which he was not enrolled, in a room with a closed door, in violation of school policy.

Employee terminated after ignoring an order to report for a “fit-for-duty” examination

Employee terminated after ignoring an order to report for a “fit-for-duty” examination

DiLauria v Town of Harrison, 285 AD2d 464

Town of Harrison police officer Steven DiLauria was terminated from his position after being found guilty of insubordination following a disciplinary hearing. The Appellate Division sustained his dismissal, finding that the department's determination that DiLauria had disobeyed two lawful orders given to him by Town of Harrison Chief of Police David Hall was supported by substantial evidence

The decision states that Chief Hall had directed DiLauria to report to Lieutenant Michael Kamensky for duty effective December 3, 1999, at 9:00 a.m. Although DiLauria “appeared outside of Lieutenant Kamensky's office on December 3 after 9:00 a.m., he did not report to Kamensky for duty as instructed.”

Kamensky and DiLauria then met with Chief Hall. During the meeting DiLauria if he could have the day off. Chief Hall denied the request and told Lieutenant Kamensky that DiLauria was assigned to him for duty. He then issued an order directing the DiLauria to report for a fit-for-duty examination at 2:00 p.m. that afternoon.

The decision reports that DiLauria responded to these directives by throwing the order on Chief Hall's desk and then “stormed out of the meeting.” Lieutenant Kamensky did not see the DiLauria again on December 3, 1999, nor did DiLauria appear for the fit-for-duty examination as directed.

Based on this record, the Appellate Division said that the penalty of dismissal “is not so disproportionate to the offenses as to be shocking to one's sense of fairness,” noting that DiLauria had previously been suspended for disobeying an order and “police departments are quasi-military organizations requiring strict discipline.

Jurisdiction to resolve an impasse in collective bargaining under the Taylor Law

Jurisdiction to resolve an impasse in collective bargaining under the Taylor Law

Police Benevolent Association v City of New York, 285 A.D.2d 52

In a unanimous ruling, the Appellate Division, Third Department, held that the New York State Public Employment Relations Board [PERB] has exclusive jurisdiction insofar as resolving Taylor Law impasse situations are concerned.

The New York City Police Benevolent Association [PBA] had objected to the New York City Office of Collective Bargaining [OCB] assuming jurisdiction to resolve an impasse in collective bargaining, contending that the Taylor Law, as amended by Chapter 641 of the Laws of 1998 gave the State's PERB exclusive jurisdiction in such cases.

The Taylor Law permits a political subdivision of the State to set up a “mini-PERB” to oversee Taylor Law matters and the City's OCB was established for this purpose. Chapter 641, however, gave PERB exclusive “impasse jurisdiction” with respect to all fire and police departments across the State. The City's attempt to have the courts declare Chapter 641 inconsistent with “home rule” has thus far proved unsuccessful.

The court's rationale: “Chapter 641 does not violate the home rule provision of the State Constitution” since it creates a law of general applicability serving a “substantial state concern” rather than constituting a “special law.” Section 212.3 provides as follows: Notwithstanding any other provision of law to the contrary, the resolution of disputes in the course of collective negotiations as provided by section two hundred nine of this article shall apply to any organized fire department, police force, or police department of any government subject to either subdivision one or two of this section.

Section 212.3, however, permits a recognized or certified employee organization representing law enforcement personnel or firefighters to “opt out” by electing “to continue dispute resolution procedures which existed on the day prior to the effective date of this subdivision” by notifying the appropriate mini-PERB* of this decision in writing.” The PBA did not elect to “opt out.”

The Appellate Division explained that in 1974 the Legislature amended Section 209 of the Civil Service Law to provide for binding impasse arbitration by PERB, but since OCB's procedures already provided for binding arbitration when an impasse was reached between the City and any of its public employee organizations, the City was specifically exempted from this requirement.

Although in 1996 the Legislature attempted to transfer jurisdiction to resolve impasses between the City and the PBA to PERB [Chapter 13, Law of 1996], the courts held that its action violated the “home rule” provision set out in the State Constitution. The Legislature's response to this ruling was to enact Chapter 641.

Observing that “[a]ll parties acknowledge that if Chapter 641 is constitutional, PERB has exclusive jurisdiction over impasse and negotiation issues and [OCB] has jurisdiction only over improper practice disputes under Civil Service Law Section 205(5)(d) and Section 209-a...,” the Appellate Division affirmed the Supreme Court's hold that Chapter 641 was constitutional.

* At one time there were 35 mini-PERBs; only four remain: New York City's Office of Collective Bargaining, and mini-PERBs for the Town of Hempstead; Suffolk County and Westchester County.

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Including the names of all “necessary parties” in an action is critical

Including the names of all “necessary parties” in an action is critical

Matter of Wheeler, CEd Decision 14,581

This ruling by the Commissioner of Education demonstrates the importance of naming all of the necessary parties in a proceeding before the Commissioner.

An elementary school principal announced that she was going to retire. Adirondack Central School Superintendent Marjorie Kelly transferred the principal then serving at another elementary school, Forestport, to fill the resulting vacancy. Kelly next appointed Ann Bush, a speech teacher, as principal at Forestport. Bush was simultaneously assigned to be the speech teacher, part-time, at Forestport.

Richard Wheeler, President of the Adirondack Central School Administrators' Association, objected to Bush's appointment as a principal with part-time teaching responsibilities rather than as a full-time principal. Wheeler's argument: the district created a new position of “Teaching Principal” at Forestport when it appointed Bush, thereby violating Section 100.2(a) of the Commissioner's regulations [8 NYCRR 100.2(a)].*

The Commissioner said he had to dismiss the appeal because Wheeler failed “to join a necessary party” -- Ann Bush. The Commissioner pointed out that a party whose rights would be adversely affected if the appeal was sustained must be clearly named as a respondent in the caption of the petition and “served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense.”

Significantly, the Commissioner rejected the Association's contention that Bush was a party to the appeal because she was a member of the Association.

Were Wheeler to prevail in his appeal, said the Commissioner, Bush's employment as principal at Forestport would “clearly be affected.” Thus Bush is a necessary party to the proceeding and the failure to name her constituted a fatal procedural error.

* 4 NYCRR 100.2 “requires a board of education to employ and assign a full-time principal to each school under its supervision” unless the Commissioner approves a “variance.” 

Involuntary testing for drugs

Involuntary testing for drugs

DiCicco v Wyandanch Volunteer Fire Dept., 284 A.D.2d 459

The Appellate Division, 2nd Department, upheld the Wyandanch Volunteer Fire Department's [WVF] terminating Thomas DiCicco from membership in the Department because he refused to submit to a drug test within 24 hours of his being notified to undergo such a test pursuant to the WVF's random drug-testing policy.

Applying the Pell doctrine [Pell v Board of Education, 34 NY2d 222], the court said the penalty of dismissal is not so disproportionate to the offense as to be shocking to one's sense of fairness.

The Appellate Division also noted that DiCicco was told that he could reapply for membership in WVF in the future.