Notice of a final administrative determination

Notice of a final administrative determination
City of New York v Appl, 289 A.D.2d 144

The New York City Board of Collective Bargaining [OCB] issued its "final determina­tion." It later sent a "courtesy copy of the decision to the City's Office of Labor Relations [OLR].

The City attempted to appeal the determination. OCB asked a State Supreme Court jus­tice to dismiss the appeal, contending that its appeal was untimely based on the date it initially delivered its ruling to the City. The City, on the other hand, argued that it had filed a timely appeal based on the date OLR had received its "courtesy copy."

The Appellate Division affirmed a lower court's determination that the City's appeal was, in fact, timely. Why? Because, said the court, OCB had created an ambiguity as to the date on which its determination became final and binding. The court's rationale: if a party creates an ambiguity, the ambiguity should be resolved against the party creating it -- here OCB.

According to the decision, OCB had sent OLR a courtesy copy of the decision after the initial copy of the decision had been delivered to the City in response to OLR's asking it if the initial decision "contained the final version of a dissent submitted by two members of the Board."

Holding that granting OCB's motion to dismiss the City's appeal under the facts in this case would deny the City "its day in court," the Appellate Division affirmed the Supreme Court's ruling that the statutory period for filing the appeal did not begin to run until the second decision had been delivered to OLR.

The general rule in such cases is that the statute of limitations to appeal an administrative determination begins to run when notice of the final administrative action or decision is received by the party or, if the party is represented by an attorney, the party's attorney.

Delivery of a final administrative decision to an employee's union does not count with respect to the commencement of the running of the statute of limitations. In Weeks v State of New York, 198 AD2d 615, the court held that the statute of limitations begins to run when the decision is served on the employee, not from the date on which the union received its copy.
The basic rule:

1. If an employee is represented by an attorney, the administrative body maysend a copy of the determination to the employee but it must serve the attorneyto begin the running of the statute of limitations.

2. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.

In contrast, a request for reconsideration does not serve to extend the period during which a party can file a timely appeal challenging the administrative action or decision.

This point is illustrated in the Cardo case [Cardo v Sielaff, 588 NYS2d 282]. In Cardo one of the issues concerned the question of the timely filing of an appeal. The court said that although Cardo asked his employer to "reconsider" its administrative decision, such a request "did not extend the period \within which the [Article 78] proceeding must be commenced."

In contrast to the legal effect of an individual merely submitting a "request for reconsid­eration," suppose the administrative body actually agrees to reconsider the matter and issue a new determination. In such a situation the statute of limitations will begin running from the date of the new "final determination." This is the case even if the new "final determination" confirms the original administrative decision.

Presumably the court did not view OLR's action as a "request for reconsideration." The court, however, may have considered the contents of the "courtesy copy" sent to OLR in response to its inquiry to be OCB's final determination.

In any event, at least one court has ruled that the final administrative action must be reduced to writing in order to start the statute of limitations running. In McCoy v San Francisco, CA9, 92-16319, a federal circuit court of appeals ruled that a public em­ployee's civil rights suit against his employer accrued when the appointing authority issued a written statement suspending him from work rather than from the date of a hearing held earlier at which time McCoy was orally advised that he was suspended from his position.

In contrast, in another case, Mavica v New York City Transit Authority, 289 A.D.2d 86, the court rejected an argument based on an alleged ambiguity created by a collective bargaining agreement and the employer's regu­lations.

Here the court rejected John Mavica's claim that a provision in his union's collective bargaining agreement with Transit Authority explicitly implementing a disciplinary grievance arbitration procedure in lieu of any other disciplinary procedure that may have previously applied to an employee covered by this Agreement including but not limited to the procedure specified in Sections 75 and 76 of the Civil Service Law was rendered ambiguous by other provisions of the same collective bargaining agreement and by the Authority's regulations.

Mavica filed an Article 78 petition seeking to have the Authority's action terminating his employment declared null and void.Here, said the court, the proper way to challenge the Authority's dismissing Mavica from his position following a disciplinary arbitration upholding the Authority's determination was for Mavica to file a motion to vacate the arbitration award pursuant to Article 75 of the Civil Practice Law and Rules, suggesting that the court did not find any ambiguity created by the terms set out in the collective bargaining agreement or in the Authority's rules.

Exception to seeking competitive bids for good and services

Exception to seeking competitive bids for good and services
Omni Recycling of Westbury, Inc. v Town of Oyster Bay, 11 NY3d 868

Typically a political subdivision of the State will solicit competitive bids for goods and services. However, this is not always the case, as the Omni Recycling decision by the Court of Appeals demonstrates.

The Town of Oyster Bay adopted a resolution authorizing the use of the procedures set out in General Municipal Law Section 104-b to obtain certain recycling services. Section 104-b provides for the procurement of goods and services without going through a competitive bidding process. The Town's Department of Public then distributed a RFP [Request for Proposals] for these recycling services to nine companies.

When another company, Giove Company was awarded the contract, Omni Recycling sued the Town and Giove, arguing that the Town should have used the competitive bidding process under General Municipal Law Section 103.

§103(1) provides, in part, that "[e]xcept as otherwise expressly provided by an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expenditure of more than twenty thousand dollars and all purchase contracts involving an expenditure of more than ten thousand dollars, shall be awarded . . . to the lowest responsible bidder furnishing the required security after advertisement for sealed bids in the manner provided by this section."

The Court of Appeals noted that “It has long been recognized that public work contracts that require the exercise of specialized or technical skills, expertise or knowledge are not subject to the sealed, competitive bidding requirements under §103 and may instead be awarded using the Request for Proposals (RFP) process set forth in General Municipal Law §104-b.”

Of the nine companies to which the RFP was sent, ultimately the proposals submitted by Omni and Giove were evaluated by an independent consultant. A public hearing was conducted and the contract was awarded to Grove.

Reversing a lower court’s ruling, the Court of Appeals held that based on the description of the particular services to be rendered set out in the RFP, “this recycling contract fell within the special skills exception to the 'lowest responsible bidder' requirement of Section 103(1) and therefore was properly awarded using an RFP process consistent with the Section 104-b procedures adopted by the Town.”

The full text of the decisions is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09850.htm

Tests used by the courts in determining if a GML §50-e(5) petition seeking approval to file a late notice of claim should be granted

Tests used by the courts in determining if a GML §50-e(5) petition seeking approval to file a late notice of claim should be granted
Burkhardt v Lindsay, 2010 NY Slip Op 06087, decided on July 13, 2010, Appellate Division, Second Department

Linda Burkhardt was employed as a Senior Legislative Aide to the Presiding Officer of the Suffolk County Legislature. Alleging that she was forced into retirement and “constructively terminated from her position on January 9, 2008,” based upon her age and her political affiliation, on February 24, 2009, Burkhardt attempted to serve a late notice of claim on the County.

The County rejected her claim and Burkhardt initiated a proceeding pursuant to General Municipal Law §50-e(5) seeking court approval for leave to serve a late notice of claim.

Supreme Court denied her petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s decision.

The Appellate Division noted that when determining whether to grant such a petition in Burkhardt's case,* the Supreme Court was required to consider whether the following elements:

1. Was there a reasonable excuse for Burkhardt’s delay in serving her notice of claim?

2. Did the County have actual knowledge of the essential facts underlying Burkhardt's claims within 90 days of the accrual of those claims or a reasonable time thereafter? and

3. Did the delay in serving a timely notice of claim result in substantial prejudice to the County’s ability to defend itself against Burkhardt’s allegations on the merits?

The Appellate Division said that Burkhart failed to demonstrate that she had a “reasonable excuse” for her delay in filing her claim; that the County had actual knowledge of the critical facts underlying her complaint within 90 days of their accrual; or that the County would not be substantially prejudiced as a result of her delay in filing her claim.

Under these circumstances, said the court, “Supreme Court providently exercised its discretion in denying the petition and dismissing the proceeding.”

* Other factors that may be considered by the court in connection with an application for permission to file a late notice of claim include whether the claimant was an infant, was mentally or physically incapacitated, or died before the time limited for service of the notice of claim. In addition, if the claimant "justifiably relied on settlement representations made by an authorized individual or body; or if there was an "public corporation or its insurance carrier; or if there was an excusable error with respect to the identity of the public entity against which the claim should be asserted, the court may, in its discretion, grant the claimant's petition.

N.B. An application for leave to serve a late notice is not be denied because it was made after commencement of an action against the public entity.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06087.htm

Evidence of a valid reason for taking disciplinary action against an employee trumps a finding that there was an improper reason for such action

Evidence of a valid reason for taking disciplinary action against an employee trumps a finding that there was an improper reason for such action
Batyreva v New York City Dept. of Education, 57 AD3d 322, Motion to appeal denied, Slip Opinion No: 2009 NYSlipOp 67524

Olga Batyreva alleged that she was assigned to grade a Regents examination and while doing so, observed other teachers improperly grading the exam with No. 2 pencils instead of red pencils or red pens. She reported this violation to “to the appropriate officials.” As a result of her action, Batyreva claimed the New York City Department of Education gave her an unsatisfactory rating and instituted disciplinary action against her.

Batyreva filed an Article 78 action, challenging the unsatisfactory rating. Her action was dismissed on a finding that the ratings were not arbitrary and capricious (Batyreva v New York City Dept. of Educ., 50 AD3d 283).

Batyreva then filed a second lawsuit against DOE contending that it had retaliated against her for her exercise of free speech by giving her unsatisfactory evaluations ratings and instituting disciplinary proceedings falsely alleging incompetence in violation of 42 USC 1983, the Civil Right Act.

Supreme Court decided that Batyreva’s complaint “sufficiently alleges that the grading procedures are a matter of public concern,” and because it did not allege that she was “in a supervisory position or that it [was] part of her official responsibilities to report any suspected or real diversions from proper grading procedures," Batyreva was "speaking as a citizen and not in her official capacity as a public employee."

The Appellate Division held that the lower court’s ruling was incorrect. Rather, said the court, the holding in Batyreva’s prior Article 78 proceeding estops her from asserting that the unsatisfactory ratings and disciplinary proceeding were retaliatory violations of her right to free speech.

The court said that “proof that the [retaliatory] action was independently justified on grounds other than the improper one defeats [her 42 USC 1983] claim.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09841.htm

Not every mischance resulting in an injury is an "accident" for the purpose of receiving an accidental disability retirement allowance

Not every mischance resulting in an injury is an "accident" for the purpose of receiving an accidental disability retirement allowance
Matter of Kenny v DiNapoli, 11 NY3d 873

Paul G. Kenny challenged the Comptroller’s decision to deny his application for accidental disability retirement benefits. Kelly contended that he was entitled to such benefits as a result of his having slipped on a wet ramp.

The Comptroller found that Kelly knew that the ramp was wet and, therefore, knew of the hazard that led to his injury before the incident occurred. Accordingly, the Comptroller concluded that Kelly’s injury was not the result of an "unexpected event."

The Court of Appeals sustained Comptroller’s determination, indicating that an “accident” for the purposes of being eligible for accidental disability retirement benefits must result from a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."

Further, said the Court, "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury."

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09857.htm

PERB holds employer's refusal to supply documents requested by union in connection with its processing a grievance violated the Taylor Law

PERB holds employer's refusal to supply documents requested by union in connection with its processing a grievance violated the Taylor Law
Hampton Bays Teachers' Association, NYSUT, AFT, AFL-CIO and Hampton Bays Union Free School District, U-26980 [Source: PERB’s Recent Decisions posting on the Internet]

The Board affirmed the decision of the ALJ finding that the District violated §§209a.1(a) and (d) of the Act when it refused the Association's requests for certain information and documents it sought for the investigation of a potential grievance and, following the filing of the grievance, for its processing on behalf of a probationary teacher.

The Board reiterated that, under the Act, an employee organization has a general right to receive documents and information, requested from an employer, for use by the employee organization in collective negotiations, the resolution of negotiation impasses and the administration of agreements including, but not limited to, the investigation of a potential grievance, the processing of a grievance and in the preparation for a grievance hearing and/or arbitration.

This general right to receive requested documents and information is subject to three primary limitations: reasonableness, relevancy and necessity.

The Board rejected the District's arguments that the Association's request for information and documents was not reasonable, relevant or necessary under the Act because it allegedly related solely to procedures under Education Law §3031 and that the Association lacked a legitimate contractual basis under the agreement to request information and documents.

The Board found that the Association's request was reasonable, relevant and necessary to the investigation into and processing of the grievance based upon the negotiated procedures applicable during the course of a teacher's probationary period.

Overtime accruals excluded in calculating narcotics bureaus investigator’s retirement allowance

Overtime accruals excluded in calculating narcotics bureaus investigator’s retirement allowance
Source: Findlaw’s Weekly Government Benefits Newsletter – A Thomson Company, Copyright ©2010 by Findlaw, redistributed with permission. For subscription information go to: http://newsletters.findlaw.com/nl/

Stevenson v. Bd. of Ret. of the Orange County Employees' Ret. Sys. , California Court of Appeal, 07/07/2010

In plaintiff's petition for administrative mandate challenging the decision of the Board of Retirement of the Orange County Employees Retirement System (Board), excluding his overtime in calculating his pension allowance, trial court's denial of the petition is affirmed as the administrative record contains substantial evidence showing plaintiff's grade or class within the meaning of section 31461 was that of investigator, and as such, the overtime he worked that was unique to investigators in the narcotics bureaus was properly excluded from his "compensation earnable".

[Click on Case Cite to read the full decision (Free registration required)]

An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis

An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis
Pereira v Nassau County Civ. Serv. Commn., 2010 NY Slip Op 51209(U), Decided on June 14, 2010, Supreme Court, Nassau County, Judge Thomas Feinman, [Not selected for publications in the Official Reports]

The Nassau County Civil Service Commission disqualified Victor Pereira for appointment as a Police Officer after he had passed the written test for the position. Claiming that the Commission’s decision “was made in violation of lawful procedure, was arbitrary and capricious, as abuse of discretion, and effected by law, and not supported by substantial evidence, Pereira as the court to vacated the Commission’s action.

The basis for the Commission’s action was that Pereira failed to meet the physical agility examination for the position.

Pereira was in an age group of applicants that were required to complete 35 sit-ups in one minute in order to avoid disqualification and move on to the final test, a1.5 mile run.

However, Pereira examiner determined that he only completed 28 sit-ups in the necessary and correct form, and therefore, he was disqualified from further evaluation for the appointment as a police officer. Pereira, on the other hand that he had completed 44 sit-ups and that the monitor failed to give him the appropriate credit for his performance.

Judge Feinman said that the Commission’s determination is subject to review under the "arbitrary and capricious" standard of CPLR §7803(3). In applying this standard, said Judge Feinman, an administrative determination will not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith."

"Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" and the court's inquiry is limited strictly to a determination of whether a rational basis exists for the agency's actions.

After considering the evidence presented by the Commission concerning the administration and rating of Pereira's sit-ups during the physical agility test, the court ruled that the Commission’s determination was neither arbitrary nor capricious and had a rational basis for its determination and dismissed Pereira’s petition.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51209.htm

Changes in New York State’s Personnel Management Manual: Part 2000 Probation

Changes in New York State’s Personnel Management Manual: Part 2000 Probation
Source: The New York Department of Civil Service Transmittal Memorandum No. 67

The New York Department of Civil Service has distributed Transmittal Memorandum No. 67 updating its State Personnel Management Manual materials addressing “probation.”

The revised or new material clarify that:

A probationer who is transferred may not have the probationary period waived.

Upon cover-in to the appropriately classified service position in accordance with Civil Service Law §45(2) and as determined by the Civil Service Commission, an incumbent is required to serve a probationary period consistent with §4.5 (4NYCRR) for the Classified Service.

The appointing authority’s and the Department of Civil Service’s responsibilities concerning the administration of the probationary process.

Other changes include:

An additional example of probation being appropriately extended rather than terminated;

Explaining that under certain circumstances, service in same-level and lower-level positions now to count toward completion of probation in the position from which the employee is on leave;

Illustrate a situation in which a trainee may have a probationary period extended.

If you wish to print Transmittal Memorandum 67, it is provided in a pdf format at:
http://www.cs.state.ny.us/ssd/pdf/TM_67.pdf

Employee disciplined for making false statements in the course of an administrative investigation

Employee disciplined for making false statements in the course of an administrative investigation
Abbate v Safir, App. Div., First Dept., 279 A.D.2d 260

Not being truthful in responding to questions posed in the course of an official investigation may result in disciplinary action.

New York City police officer Anthony Abbate was found guilty of charges that he "lied at his official interview" when he denied that he had "uttered profanities to another officer," and, in a separate incident, "was discourteous and disrespectful to another officer in uttering racial epithets in an argument." The penalty imposed: dismissal from the force.

Abbate's appeal from the determination and the penalty imposed was dismissed by the Appellate Division. The court said that there was substantial evidence to support a finding that Abbate was guilty of the charges.

As to Abbate's challenge to his dismissal, the Appellate Division decided that in view of Abbate's "poor disciplinary record" the penalty of dismissal satisfied the Pell standard [Pell v Board of Education, 34 NY2d 222]. In the words of the court, "the penalty does not shock our sense of fairness."

Apparently the Appellate Division gave substantial weight to the fact that Abbate had been found guilty of lying in an "official investigation" as the Calhoun case demonstrates.
New York City police officer Gary Calhoun appealed his being found guilty of using racial epithets in the course of making an arrest [Calhoun v Safir, Appellate Division, First Department, 279 A.D.2d 295].

Calhoun had been found guilty of disciplinary charges alleging that he used "excessive force and racial epithets" in arresting a suspected car thief. The penalty imposed: suspension without pay for thirty days as a result.

The Appellate Division, again referring to the Pell doctrine, sustained the Commissioner's determination, commenting that "[T]he 30-day suspension does not shock our sense of fairness and is a minimal penalty in light of the conduct."

A multi-year employment contract between an educator and a school board necessarily binds successor school boards

A multi-year employment contract between an educator and a school board necessarily binds successor school boards
Decisions of the Commissioner of Education, 13958, 13960

School superintendents and their deputies are usually employed pursuant to a written contract that sets out the terms and conditions of their employment. Each time a school board enters into a multi-year contract “it necessarily binds successor boards,” the Commissioner of Education ruled in two cases involving the Mount Vernon City School District in Westchester County.

On June 12, 1997 Mount Vernon City School District’s Board of Education approved resolutions extending its written employment contract with both its superintendent, William C. Prattella and its deputy superintendent, Edward J. Reilly, through June 30, 2000. On July 1, 1997, a newly elected Board adopted a resolution rescinding the former board’s resolutions of June 12.

Both Prattella and Reilly challenged the newly elected board’s action and asked the Commissioner of Education to intervene.

The district asserted that the previous board’s actions were improper and it had the right to rescind the contract extensions because it read Section 2507 of the Education Law as barring a “small city school district” from entering into a written contract with a superintendent or a deputy superintendent.

The Commissioner disagreed with the district’s interpretation of Section 2507. He cited language in Section 2507(1), which applies to superintendents and associate superintendents of small city school districts and Section 2509(3), which covers assistant school superintendents. These provisions authorize the board of a small city school district to contract with such employees for a period of one to five years, he said.

The newly elected board also argued that the action by the previous board was contrary to public policy since “New York courts have held that municipal and governmental boards are not able to bind their successors to long-term contractual provisions.

The Commissioner agreed that “there is venerable authority for the proposition that municipal and government boards should not be able to bind their successors to long-term contractual provisions.” However, he noted, courts have recognized an exception to this general proposition “where a specific statutory provision authorizes a long-term contractual arrangement,” citing Murphy v Erie County, 28 NY2d 80.

Holding that Sections 2507(1) and 2507(3) constituted such statutory provisions, the Commissioner ruled that each time a school board enters into a multi-year “it necessarily binds successor boards.” The Commissioner sustained both appeals.

The Commissioner concluded his opinions in both appeals by commenting that although he was “constrained to recognize the legality of the eleventh hour extension” of the contracts voted by the former Board, he did not endorse the wisdom of its action, “which does not inspire voter confidence in school officials.” This is an example of dicta, a statement of opinion made by a judicial or quasi-judicial official that is not required to resolve the controversy or make a determination.

Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions

Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions
Drucker v Hofstra Univ., App. Div., Second Dept, 279 A.D.2d 472

The Drucker case demonstrates the fact that if the terms of a collective bargaining agreement have been incorporated by reference into an employment contract between the individual and his or her employer, the courts will hold the parties to the controlling provisions set out in the collective bargaining agreement.

Hoftra University said that it was terminating Susan J. Drucker from her position as Chair of the Department of Speech Communication and Rhetorical Studies "for good cause" .

The reason given by Hofstra for Drucker's dismissal: she had failed to maintain "an effective communication climate" with her faculty in violation of Hofstra University's Faculty Policy.

Drucker appealed, contending that her termination was unlawful because she had been employed "unconditionally."

The Appellate Division affirmed a lower court's dismissal of her petition, commenting that the University's action was not arbitrary, capricious, or irrational.

Instead of being hired "unconditionally," the court said that the collective bargaining agreement was "incorporated by reference into [Drucker's] contract of employment...."

The collective bargaining agreement provided that Drucker could be removed for "good cause" upon the filing of a petition signed by two-thirds of the membership of her department, followed by a meeting between the dean and the department membership.

Finding that the record demonstrated that the University had followed the procedures set out in the collective bargaining agreement and that Drucker "had ample opportunity to present her side of the case," the Appellate Division concluded that there was no basis for nullifying the University's action.