Section 75 of the Civil Service Law limits suspension without pay to thirty days notwithstanding the individual’s being found guilty of the charges

Section 75 of the Civil Service Law limits suspension without pay to thirty days notwithstanding the individual’s being found guilty of the charges
Vargo v Safir, App. Div., First Dept., 291 A.D.2d 268

Although the Appellate Division did not have any difficulty in affirming New York City Police Commissioner Howard Safir's imposing the penalty of dismissal after finding police officer guilty of misconduct, it did find that there was a question as to whether the officer was entitled to back pay.

The court said that it appeared that the officer had been suspended without pay for more than 30 days after he was served with disciplinary charges filed against him.

Civil Service Law Section 75.3-a, in pertinent part, provides that a New York City police officer may be suspended without pay for thirty days pending the determination of disciplinary charges.

Accordingly, said the court, and the Department agreed, it was necessary to remand the matter to the Department to determine if the police officer was entitled to back salary for any period of suspension without pay in excess of 30 days.

CSL Section 75.3-a further provides that if a New York City police officer is found guilty of the charges, the Commissioner "may punish the police officer pursuant to the provisions of Sections 14-115 and 14-123 of the Administrative Code of the City of New York."

The Appellate Division sustained the Commissioner's determination that Vargo was guilty of being the driver of a motor vehicle involved in "a hit-and-run" while off duty and that he used illegal drugs. Under the circumstances, said the court, "[t]he penalty of dismissal does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32, in support of its ruling.

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Conflicting medical opinions

Conflicting medical opinions
Buczynski v NYSERS, 291 AD2d 630

Daniel Buczynski, a marketing specialist for the State's Lottery Division, filed an application for disability retirement benefits in January 1997. The basis for his application: anxiety and depression.

Buczynski had stopped working in May 1996 for what was ultimately diagnosed as panic attacks and depression. Buczynski claimed that his condition was the result of increased work and he developed Bell's palsy.

His psychologist said that Buczynski:

1. "continued to exhibit significant cognitive deficits despite several years of therapy and medication" and

2. "was permanently disabled from performing his duties."

The Retirement System's psychiatrist who examined Buczynski in July 1997 "opined that [Buczynski] had suffered a major depression in 1996 that left him unable to perform his duties but that [Buczynski's] condition had improved, that he had no cognitive deficiency and that, with further treatment, he should be able to return to the type of work he had been doing."

In other words, the System's psychiatrist concluded that Buczynski was not permanently disabled from the performance of his duties. Based upon the psychiatrist's opinion, the System denied Buczynski's application for disability retirement.

In response to Buczynski's appeal, the Appellate Division held that there was no merit to Buczynski's claim that the psychiatrist's opinion was insufficient to provide the necessary substantial evidence to support the Comptroller's determination.

The court said that "[w]here, as here, the Retirement System's expert provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records, the expert's opinion generally will not be considered so lacking in foundation or rationality as to preclude the Comptroller from exercising the authority to evaluate conflicting medical opinions...."

Protected union activity

Protected union activity
CSEA Local 861 and Wyoming County, 34 PERB 3042
Local 814 and Town of Poughkeepsie, 34 PERB 3043

Where the employer's reason for dismissing a probationary employee is rejected by PERB as pretextual because the employee was not disciplined for the misconduct claimed as the basis for the dismissal, the inference that the employer retaliated against the employee for pursuing a grievance in violation of Civil Service Law Sections 209-a.1(a) and 209-a.1(c) has not been rebutted by the employer.

Similarly, in the Town of Poughkeepsie case, PERB held that the Town terminated an employee because of union organizing activities in violation of Civil Service Law Sections 209-a.1(a) and 209-a.1(c), finding that the reasons given by the Town justifying its action were pretextual because the employee had not been served with disciplinary charges for his alleged misconduct prior to his dismissal.

Depression resulting from being served disciplinary charges not a disability for the purposes of Workers’ Compensation Benefits

Depression resulting from being served disciplinary charges not a disability for the purposes of Workers’ Compensation Benefits
Youngs v Village of Penn Yan, 291 AD2d 852

A Village of Penn Yan police officer was suspended without pay for 30 days effective February 18, 1993. Found guilty of insubordination, the penalty imposed was a reprimand and the officer was directed to report to work effective March 22, 1993.

On the advice of his physician, the police officer did not report for duty on March 22, and subsequently applied for performance of duty disability retirement. His application was approved effective October 2, 1993 and the Retirement System told the Village not to pay any salary to the officer after October 1, 1993.

The officer had filed a claim for workers' compensation benefits, alleging that he was injured on February 18, 1993 and that his injury was depression. His claim was rejected by the Workers' Compensation Board based on its finding that the "major depressive illness was brought about by the ongoing frustration he perceived in his police work." This, said the Board, does not of itself rise to the level of compensability. The Board also considered other factors such as "the trauma of the arrest of [the police officer's] brother [and] the disciplinary action taken on February 17, 1993...."

The Board found that the officer had not sustain an "injury arising out of and in the course of the employment" within the meaning of Workers' Compensation Law Section 10[1] because the term injury "shall not include an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action ... taken in good faith by the employer."

The police officer next sued the Village, seeking damages in the amount of $25,000, his unpaid wages from March 18, 1993 through October 1, 1993, together with his medical expenses since March 18, 1993. He claimed that the Village actions in not paying his wages and medical expenses during this period violated Section 207-c of the General Municipal Law [GML]. A State Supreme Court justice determined that the officer was not entitled to GML Section 207-c benefits and the Appellate Division, Fourth Department, affirmed the lower court's ruling.

The Appellate Division explained its decision as follows:

1. A police officer is entitled to GML Section 207-c wages and benefits if he "is injured in the performance of his duties or ... is taken sick as a result of the performance of his duties."

2. A determination by the Workers' Compensation Board that an injury is work-related does not, "by operation of collateral estoppel, automatically entitle an injured employee to GML Section 207-c benefits," citing Balcerak v County of Nassau, 94 NY2d 253.

3. Conversely, the fact that the Board found that the officer did not sustain an injury in the course of employment is not dispositive of the issue concerning his entitlement to GML Section 207-c benefits.

The court, however, commented that the findings of the Board are relevant, particularly where, as here, they are the only evidence in the record concerning the nature of plaintiff's injury.

The frustration that the officer experienced at work and the disciplinary action brought against him involved a dispute that he had with a superior officer, and did not relate to the actual performance of his duties as a police officer. According, ruled the court, the injury sustained by the police officer is beyond the scope of GML Section 207-c.

On another issue in the case concerned certain "premium pay payments" the Village had provided the officer. The officer complained that he should not be required to reimburse the Village for alleged "overpayments of longevity pay and an Associate Degree stipend for the fiscal year from June 1, 1993 to May 31, 1994." The court responded "[w]e disagree."

The Appellate Division decided that the Village had calculated the officer's longevity payments and his Associate Degree stipend based on its expectation that he would be employed for the entire year. Accordingly the court ruled that they "were subject to adjustment pursuant to the contract between the parties" and thus the officer was entitled to the "premiums" only for the period from June 1, 1993 to October 1, 1993.

Free speech rulings by the federal courts

Free speech rulings by the federal courts
Selected decisions by U.S. Circuit Courts of Appeal

In Swartzwelder v McNeilly, 01-1085, the U.S. Circuit Court of Appeals, Third Circuit, held that a public employer may not require that its employee obtain its prior approval before he or she may give his or her opinion as an expert witness concerning matters of public interest at a trial unless the employer is able to demonstrate that such a requirement is appropriately tailored to the employer's interests.

In deciding Nieves v Board of Education, City of Chicago, 01-3814, the Circuit Court of Appeals, Seventh Circuit, rejected a claim advanced by Rose Nieves, a City of Chicago school employee, that she had been terminated in retaliation for her exercising her right to free speech, holding that there was no evidence connecting the timing of Nieves' termination when her position was abolished as part of a reduction in force to her exercising her First Amendment right to free speech.

According to another ruling by the Seventh Circuit, Thompson v Illinois Department of Professional Regulation, 01-4074, because Mark A. Thompson, a chief administrative law judge, held a policy making position, he could not maintain his law suit based on allegations that his demotion and transfer was in retaliation for his exercising his First Amendment rights to free speech concerning his political beliefs.

Freespeech issues raised by public employees have been considered by the U.S. Supreme Court. Its decisions suggest that the following general guidelines will be applied in addressing such free speech issues:

1. Public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

2. Speech by a public officer or employee that merely addresses a personal concern such as the individual's personal unhappiness working for the public employer or for a particular supervisor, or related to the individuals' particular position, work assignments or working conditions, or the individual's personal disagreement concerning the internal operations of the department or agency, that do not rise to the level of speech concerning a "public interest," does not involve "protected speech" within the meaning of the First Amendment.

Demonstrating a party's failure to negotiate in good faith

Demonstrating a party's failure to negotiate in good faith
Public Employees Federation and Roswell Park Cancer Institute, 34 PERB 3040

An employee organization must show that the employer, in exercising its management prerogatives, violated the parties' memorandum of understanding in order to prove that the employer's actions constituted a refusal to negotiate in good faith in violation of Civil Service Law Section 209-a1(d).

Counseling memoranda may constitute disciplinary action when coupled with more than "job-related feedback"

Counseling memoranda may constitute disciplinary action when coupled with more than "job-related feedback"
Matter of Harper v New York State Off. of Mental Health, 12 Misc 3d 1197(A)

An employee received a “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.. The counseling memorandum, in part, issued by the New York State Office of Mental Health stated:

“This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future."

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to Harper did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA].

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA. Accordingly, Harper was entitled to administrative due process in the form of a notice of discipline and a hearing.

Dismissal in consideration of the misconduct proven not viewed as "shocking"

Dismissal in consideration of the misconduct proven not viewed as "shocking"
Ortiz v Safir, App. Div., 1st Dept., February 5, 2002

The Appellate Division, First Department sustained New York City's for Police Commissioner Howard Safir's terminating police officer James Ortiz after finding Ortiz guilty of a number of charges of misconduct in the performance of his duties.

Applying the so-called "Pell Doctrine," [Pell v Board of Education, 34 NY2d 222], the court said that under the circumstances imposing the penalty of dismissal did not shock its sense of fairness.

Ortiz was found guilty of disciplinary charges that alleged that in the course of effecting an arrest of an individual for disorderly conduct, he "manhandled an unthreatening, nonresistant arrestee, shoved him down a subway stairway, flung his passport into his face, charged him with resisting arrest without probable cause and made false statements about the incident to the Civilian Complaint Review Board."

Disciplinary penalties imposed on public employees in New York State must meet the "Pell Doctrine." The standard applied: any permissible penalty may be imposed unless the court finds that under the circumstances such a penalty is "shocking to one's sense of fairness."

Typically an individual will appeal the disciplinary findings as to guilt as well as the penalty imposed. Once a court determines that the record supports a finding that the disciplinary determination was not arbitrary or illogical and that it is supported by substantial evidence, it will turn to the issue of whether the disciplinary penalty imposed should be upheld.

This is the point at which the court will apply the Pell Doctrine. The test used by courts: is the sanction imposed so disproportionate to the offense or offenses of which the individual has been found guilty as to be shocking to one's sense of fairness?

What constitutes a penalty judged to be so shocking? An example of the type of punishment that might be judged violating Pell would be to fire someone for a minor offense such as a single instance of smoking on the job.

On the other hand, everything depends on the circumstances. The unique conditions and requirements of a given workplace must be considered in determining the fairness of a penalty.

If, for example, a hospital employee was discovered smoking while working with a patient who was receiving oxygen therapy in violation of hospital rules and procedures, the danger of smoking in such a unique work site to the patient and others could justify the employer imposing a harsher penalty -- even termination -- than might be imposed for a smoking infraction by a hospital employee discovered to be smoking in another, but safer, "non-smoking area."

Another factor that goes hand-in-hand with Pell is the concept that judges are to give "deference" to the appointing authority's determination regarding the penalty to be imposed. Ahsaf v Nyquist, 37 NY2d 182, is a decision illustrating this point.

In short, a court will overturn the disciplinary penalty imposed by an appointing authority only in the event it perceives it to be essentially unfair when measured against the offense committed by the employee.

Further, as a general rule, courts are reluctant to substitute their judgment as to the appropriate penalty to be imposed for that of the employer, especially in disciplinary actions involving law enforcement personnel as law enforcement personnel are viewed as holding "quasi-military" status. As the court commented in Laspisa v Mahoney, 603 NYS2d 536, a law enforcement agency is a quasi-military organization which demanded strict discipline and "great deference is to be accorded a determination regarding the internal discipline of its members."

Dismissal in consideration of the misconduct proven not viewed as "shocking"

Dismissal in consideration of the misconduct proven not viewed as "shocking"
Ortiz v Safir, App. Div., 1st Dept., February 5, 2002

The Appellate Division, First Department sustained New York City's for Police Commissioner Howard Safir's terminating police officer James Ortiz after finding Ortiz guilty of a number of charges of misconduct in the performance of his duties.

Applying the so-called "Pell Doctrine," [Pell v Board of Education, 34 NY2d 222], the court said that under the circumstances imposing the penalty of dismissal did not shock its sense of fairness.

Ortiz was found guilty of disciplinary charges that alleged that in the course of effecting an arrest of an individual for disorderly conduct, he "manhandled an unthreatening, nonresistant arrestee, shoved him down a subway stairway, flung his passport into his face, charged him with resisting arrest without probable cause and made false statements about the incident to the Civilian Complaint Review Board."

Disciplinary penalties imposed on public employees in New York State must meet the "Pell Doctrine." The standard applied: any permissible penalty may be imposed unless the court finds that under the circumstances such a penalty is "shocking to one's sense of fairness."

Typically an individual will appeal the disciplinary findings as to guilt as well as the penalty imposed. Once a court determines that the record supports a finding that the disciplinary determination was not arbitrary or illogical and that it is supported by substantial evidence, it will turn to the issue of whether the disciplinary penalty imposed should be upheld.

This is the point at which the court will apply the Pell Doctrine. The test used by courts: is the sanction imposed so disproportionate to the offense or offenses of which the individual has been found guilty as to be shocking to one's sense of fairness?

What constitutes a penalty judged to be so shocking? An example of the type of punishment that might be judged violating Pell would be to fire someone for a minor offense such as a single instance of smoking on the job.

On the other hand, everything depends on the circumstances. The unique conditions and requirements of a given workplace must be considered in determining the fairness of a penalty.

If, for example, a hospital employee was discovered smoking while working with a patient who was receiving oxygen therapy in violation of hospital rules and procedures, the danger of smoking in such a unique work site to the patient and others could justify the employer imposing a harsher penalty -- even termination -- than might be imposed for a smoking infraction by a hospital employee discovered to be smoking in another, but safer, "non-smoking area."

Another factor that goes hand-in-hand with Pell is the concept that judges are to give "deference" to the appointing authority's determination regarding the penalty to be imposed. Ahsaf v Nyquist, 37 NY2d 182, is a decision illustrating this point.

In short, a court will overturn the disciplinary penalty imposed by an appointing authority only in the event it perceives it to be essentially unfair when measured against the offense committed by the employee.

Further, as a general rule, courts are reluctant to substitute their judgment as to the appropriate penalty to be imposed for that of the employer, especially in disciplinary actions involving law enforcement personnel as law enforcement personnel are viewed as holding "quasi-military" status. As the court commented in Laspisa v Mahoney, 603 NYS2d 536, a law enforcement agency is a quasi-military organization which demanded strict discipline and "great deference is to be accorded a determination regarding the internal discipline of its members."

Appealing retirement system member service determinations

Appealing retirement system member service determinations
Marsh v NY State and Local Employees' Retirement System, App. Div., 291 AD2d 713

The Marsh decision addresses the procedure to follow when challenging a New York State and Local Employees' Retirement System's [ERS] determination regarding a retiree's "years of service credit" for the purpose of determining the individual's retirement allowance. The bottom line: the controlling statute of limitations requires that the individual file an Article 78 [Civil Practice Law and Ruled Article 78] petition within four months of his or her receipt of the "final determination" concerning the calculation of years of service credit.

Two members, Patricia M. Marsh and Nicholas J. Vianna, believed that they were entitled to more member service credit than ERS calculated for them upon their respective retirements.

ERS sent Marsh a letter dated April 25, 1997, advising her of its determination to prorate certain of her member service credit because she worked part time during various periods during her public employment. Marsh retired on March 30, 2000.

Vianna retired on January 1, 1997. ERS told him that he had 17.37 years of member service credit for the purposes of determining his retirement allowance.

Neither Marsh nor Vianna requested an administrative hearing and redetermination of their retirement benefits as determined by ERS. However, in January 2000 they filed a petition asking the court for a "declaratory judgment" that they were entitled to additional service credit.

The Appellate Division said that it was clear that Marsh and Vianna were simply challenging the calculation of their respective "service credits" by challenging ERS's "nearly 25-year-old internal administrative proration procedure as well as an administrative regulation codifying such procedure" set out in 2 NYCRR 370.

The court said that the procedure to be used if an individual believes that his or her member service credit has been miscalculated is expressly governed by Retirement and Social Security Law Sections 74 [b] and 374 [b].

These provisions, said the Appellate Division, require that a member or retiree "dissatisfied with any aspect of his or her retirement package" appeal to the Comptroller by seeking "a hearing and redetermination." If, following this appeal, the individual is dissatisfied with the Comptroller's final determination, he or she must bring a timely Article 78 proceeding if he or she wishes to seek any further relief. The statute of limitations for bringing an Article 78 action is four months.

The court pointed out that the "simple expedient" of calling their current action one for declaratory relief and "characterizing the matter as one of constitutional and contractual dimension" does not cure "this fatal inaction" on the part of both Marsh and Vianna. Clearly filing an Article 78 action in January 2000 was untimely, said the court, and it dismissed both Marsh's and Vianna's petitions.