Stipends that are not found to be “regular salary” or “summer session salary” excluded in determining educator’s final average salary

Stipends that are not found to be “regular salary” or “summer session salary” excluded in determining educator’s final average salary
O'Brien v New York State Teachers' Retirement System, 2010 NY Slip Op 51398(U), Decided on August 4, 2010, Supreme Court, Albany County, Judge Henry F. Zwack [Not selected for publication in the Official Reports]

Typically a schoolteacher has a 10-month professional obligation and school districts generally permit the educator to elect to receive his or her annual compensation over ten months in 21 periods or over twelve months in 26 payroll periods. In the event the educator elects to receive his or her annual salary in 26 payroll periods, the school district usually commences the 26 biweekly payroll mode for a person having a ten-month professional obligation [typically September 1 to the June 30 next following] in September. The individual actually would be underpaid for the period September through the following June 30 and payments received during July and August would constitute payment for past services already performed.*

In this CPLR Article 78 proceeding New York State Teacher's Retirement System [TRS] retiree Florence O’Brien contended that TRS improperly calculated her final average salary. She claimed that that TRS should have included the payments she had received in the 2006-07, 2007-08 and 2008-09 school years -- $4,000.00, $5,000.00 and $6,000.00 respectively --pursuant to the terms of a collective bargaining agreement.

The collective bargaining agreement provided for these stipends under what was called a "24-12" plan and O’Brien claimed that the stipends were for her work developing and teaching summer school programs.

TRS disagreed, arguing that "24-12" plan allows a teacher to receive his or her salary in 24 payments over 12 months, as opposed to only over the course of the academic year. In contrast, the collective bargaining agreement, said TRS, required participating teachers to "complete a total of 8 hours of work during each July and August." Accordingly, the System decided that such stipend payments “are not properly considered regular salary.”

TRS also noted that O’Brien’s work during the three relevant summers was not reported pursuant to the summer school salary schedule.**

Observing that “It is well established that when a court is reviewing an administrative determination, it ‘may not substitute its judgment for that of the agency making the determination but must determine whether the agency's decision has a rational basis and is not arbitrary and capricious,’” Judge Zwack ruled that the System’s determination that the stipends paid to O'Brien under the 24-12 plan was non-regular compensation was neither arbitrary nor capricious.

Significantly, the court noted that:

1. The stipend was in addition to base salary;

2. The payments under the 24-12 plan were not based on performance of teaching service and were fixed based upon a teacher's length of service;

3. The main purpose of the 24-12 plan appears to be to offer teachers an option to receive salary over the entire calendar year; and

4. That there was a separate arrangement for summer school teaching and compensation.

5. Accordingly, Judge Zwack sustained the Retirement System’s determination.

* If, on the other had, the district commenced its payroll for such personnel in July, such employees would be receiving payments during July and August for work yet to be performed during the following academic year, i.e., the following September-June school year period. In Guilderland CSD v Trombetta [Not selected for publication in the Official Reports] the court said that "Where a school district employee is paid more than the per diem value of his or her annual salary, and thereafter fails to complete the temporal period of work he or she is obligated to perform, there must be a per diem adjustment of salary paid, so as to equate salary paid with work performed, and a return to the school district of any overpayment computed on such basis."

** TRS conceded that “summer school compensation constitutes regular salary,” but concluded that the stipend payments claimed by O’Brien for the purposes of determining her “final average salary” were payments separate and distinct from summer school compensation.

The text of the decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51398.htm
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Amending local civil service commission rules

Amending local civil service commission rules
Formal Opinion of the Attorney General, 98-F3

The New York City Council “jurisdictionally reclassified” a number of city positions without first holding a public hearing concerning the change. New York City’s Director of Personnel advised the State Civil Service Commission that under the circumstances he believed that the State Commission had “no authority to disapprove the proposed changes and should simply note them in its records.”

The State Commission asked the Attorney General for his views concerning the State Commission’s authority under the circumstances. The Attorney General began his analysis by noting that in such matters the courts “have required strict compliance with Section 20.2,” citing Joyce v Ortiz, 108 AD2d 158.

Section 20 of the Civil Service Law sets out the procedures to be followed by a local civil service commission or personnel officer wishing to amend its “personnel rules.” It provides that such rules may be amended only after a public hearing and requires the approval of the State Civil Service Commission. Finally, to have the “force and effect of law,” the amendment must be filed with the Secretary of State to complete the process. Such rules, including the Rules promulgated by the State Commission itself, also provide for the enumeration of positions placed in the exempt, noncompetitive or labor classes by the local commission. All positions in the classified service are automatically in the competitive class unless placed in a different jurisdictional classification by the State Legislature or the State Civil Service Commission.

The key to resolving the issue turned on whether a municipal legislative body was to be equated to the State Legislature for the purposes of Section 20.2, because that Section provides an exception for the Legislature. Section 20.2 specifically indicates that no public hearing is required upon the adoption or modification of a rule required “by reason of a change in any statute in order to confirm the rule to the statute.”

The Attorney General concluded that exception set out in Section 20.2 for conforming to a change in the law “is best given effect by reading ‘statute’ as a reference to a State law, rather than a local enactment.” Accordingly, he advised the State Commission that a political subdivision of the state must comply with the notice, hearing and approval procedures set out in Section 20 if it wishes to amend its personnel rules, including adopting amendments establishing new titles in other than the competitive class and jurisdictionally reclassifying existing positions.

A disciplinary hearing determination cannot be annulled by the court if the record supports the determination

A disciplinary hearing determination cannot be annulled by the court if the record supports the determination
Marden v Town of Bedford, 249 A.D.2d 547

The Town of Bedford Supervisor asked the Town’s Chief of Police, David M. Marden, to provide him with a copy of a report concerning alleged police misconduct. When the chief failed to comply with the directive, a number disciplinary charges were served on him. Among these were charges that alleged that Marden failed to comply with a lawful order to provide the report on five occasions: February 12, 16, 23, 27 and 28. Found guilty of misconduct, Marden was dismissed from his position.

Marden appealed. The Appellate Division said that Marden could not be guilty of insubordination on February 12 and 16, because the report in question had not been completed until February 21. Accordingly, the finding of guilt concerning charges involving these dates were not supported by substantial evidence.

The Appellate Division sustained the findings of misconduct with respect to Marden’s refusal to comply with the Supervisor’s directives on February 23, 27 and 28.

The court said an administrative determination made after a hearing cannot be annulled unless it is shown that there is no substantial evidence in the record to support the determination. Here it was found that the hearing record supported the determination that Marden “willfully refused to comply with a proper directive to turn over the investigative report....”

As to the penalty imposed, dismissal, the Appellate Division held that the penalty satisfied the Pell standard [Pell v Board of Education, 34 NY2 222] as Marden’s dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness.

Public employees personal E-mails exempt from disclosure from FOIL

Public employees personal E-mails exempt from disclosure from FOIL
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The Wisconsin Supreme Court held in Schill v. Wisconsin Rapids School District, 2010 WI 86 (July 16, 2010), that purely personal e-mails of public employees sent from workplace computers and e-mail accounts are protected from disclosure to a third party under the state Public Records Law. While the justices differed in whether such emails are even public records, a majority of the court determined that a public records custodian “should not release contents of emails that are purely personal and evince no violation of law or policy.”

This is a significant decision. Few businesses could operate today without the use of email. It is also likely that employees will sometimes use an employer's email system for personal use. Whether an email is “purely personal” will be based on a case-by-case determination, as the court makes clear that the contents of apparently personal e-mails could require disclosure if the email has some connection to a government function.

The decision involves only disclosure of personal email to third parties under the Public Records Law. The case does not involve the right of government employers to monitor, review or have access to the personal emails of public employees using the government email system.

Law review commentary on this important subject would be most welcome.

The Court’s complete opinion can be found at:
http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=52285
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Confidentiality of police records

Confidentiality of police records
Baez v City of New York, NYS Supreme Court, [Not selected for publication in the Official Reports]

A number of law enforcement agencies have procedures similar to those of the New York City Police Department Patrol Guide Section 118-9, which compels an officer to participate in an interview process coupled with the promise that the statement provided by the officer will not be used against him or her in any criminal proceeding. Characterized as GO-15 or IAD interviews, these NYPD statements are typically comprehensive and provide a substitute for a deposition.

In the Baez case New York State Supreme Court Justice McKeon set out the guidelines usually followed with respect to the release of such statements to the press and, or, to the public.

Justice McKeon said that the release of such records is governed by three statutes: Public Officers Law Section 87 (Freedom of Information Law or FOIL); Civil Rights Law Section 50-a (Right of Privacy for personnel records of police officers and others); and CPLR Section 3101 (Scope of Disclosure).

As to FOIL, Justice McKeon held that Section 87 allows access by any member of the public to governmental agency records, unless they are specifically exempted from disclosure by statute or constitute inter-agency or intra-agency materials, which are not inter alia final agency policy or determinations. He concluded that these types of records fall within that exemption from disclosure to the public under FOIL as predecisional interagency materials.

Civil Rights Law Section 50-a, said Justice McKeon, declares personnel records of police officers to be confidential material, not subject to disclosure without the express written consent of the officer or as mandated by lawful court order. It was noted, however, that the use of such records by a governmental entity, such as releasing summary of internal investigation of instances of police misconduct, is not precluded by Section 50-a because that use is unrelated to the purpose of the statute.

Justice McKeon next considered CPLR Section 3101, the discovery statute. This section, it was noted, provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.” The Court concluded that based on the protections provided by these statutes, “GO-15 statements and IAD records are considered confidential per statute unless they are released through consent or by lawful court order.” Justice McKeon also observed that “confidential” in Civil Rights Law Section 50-a is analogous to “privileged” within the meaning of CPLR Section 3101.

Justice McKeon also ruled that such statements are exempted from disclosure to the general public under the Freedom of Information Law, Public Officers’ Law Section 87.

The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/

PERB may elect to defer its consideration of unfair labor practice charge

PERB may elect to defer its consideration of unfair labor practice charge
PBA and Village of Ossining, 30 PERB 4711

PERB sometimes elects to defer considering unfair labor practice charges filed by an individual or an organization. It typically does so when there is some other procedure available that could address and resolve the issues that motivated the filing of the charge in the first instance. The Ossining PBA case provides an example of such a situation.

Ossining Chief of Police Joseph Burton “unilaterally changed the work schedule” of PBA unit members in an apparent effort to avoid paying holiday pay. Had the “natural rotation” of the work chart had not been altered, certain officers would have earned holiday pay.

The PBA protested the change and filed an unfair labor practice charge with PERB. PERB discovered that the PBA had also filed contract grievance concerning the matter, however.

The parties agreed to defer pressing the issue before PERB pending the resolution of the grievance.

PERB Administrative Law Judge Sandra M. Nathan observed that “it is appropriate to defer deciding whether the [Taylor Law] precludes the exercise of jurisdiction by PERB, pending the outcome of the grievance which has been filed.” She “conditionally dismissed” the PBA complaint.

What would be the result if the PBA had not already filed a grievance?

Assuming (1) that a contract grievance procedure was available, (2) that the issue appeared appropriate for submission as a contract grievance, and (3) that these facts were disclosed to the administrative law judge, the ALJ probably would have conditionally dismissed the complaint and directed the parties to first submit the matter for resolution through the grievance procedure.

Final regulations for filing Form I-9, Employment Eligibility Verification to become effective August 23, 2010

Final regulations for filing Form I-9, Employment Eligibility Verification to become effective August 23, 2010
Source: 75 Federal Register 42575

Section 274A of the Immigration and Nationality Act, as amended (INA), see 8 U.S.C. 1324a, requires all U.S. employers, agricultural associations, agricultural employers, farm labor contractors, or persons or other entities that recruit or refer persons for employment for a fee, to verify the employment authorization and identity of all employees hired to work in the United States after November 6, 1986.

To comply with the law, an employer is responsible for the completion of a Form I-9, the Employment Eligibility Verification (Form I-9), for each new employee, including United States citizens.

The Department of Homeland Security has issued final regulations to provide that employers who are required to complete and retain the Form I-9, Employment Eligibility Verification may sign the form electronically and retain the form in an electronic format.

The final rule is effective August 23, 2010 and essentially requires that employers complete the required Form I-9 within three business days. The employer may use paper, electronic systems, or a combination of paper and electronic systems for this purpose.

The Form I-9, available to the public in numerous paper and electronic forms, since 1986, is now available online at the U.S. Citizenship and Immigration Services (USCIS) Web site as a Portable Document Format (.pdf) fillable and printable form. The form is posted on the Internet at http://uscis.gov/files/form/i-9.pdf.

In addition, the Handbook for Employers published by the Department of Homeland Security setting out instructions for completing the Form I-9 (a.k.a. the Employment Eligibility Verification Form) is posted on the Internet at:
http://www.bipc.com/images/newsletters/M-274_I-9_Handbook.pdf

The text of the Department of Homeland Security's Final Regulation is posted on the Internet at: http://www.federalregister.gov/articles/2010/07/22/2010-17806/electronic-signature-and-storage-of-form-i9-employment-eligibility-verification
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U.S. Department of Labor expands definition of “son” or “daughter” for FMLA purposes

U.S. Department of Labor expands definition of “son” or “daughter” for FMLA purposes
Source: Roetzel & Andress , Douglas M. Kennedy, Esq.
[http://www.ralaw.com/about.cfm?sp=overview ]

An Administrator's Interpretation Letter on June 22, 2010 from the Department of Labor has clarified the definition of son or daughter as it applies to an employee taking FMLA leave to care for a newborn, newly placed or sick child. Using the portion of FMLA referring to the term "in loco parentis," the DOL's letter states that one does not have to have a biological or legal relationship with the child to be able to take FMLA leave. One must look at factors like the age of the child, the degree to which the child is dependent on the person providing care, the amount of support provided and the extent to which duties commonly associated with parenthood are exercised.

The letter specifically refers to an employee caring for his or her unmarried partner's child, as well as a grandparent, aunt or uncle, as examples of those who could stand "in loco parentis," and also says that an employee must only provide "a simple statement asserting that the requisite family relationship exists" in order to support a request for leave.

Security records were properly admitted into evidence by disciplinary hearing officer

Security records were properly admitted into evidence by disciplinary hearing officer
Peil v Beirne, 72 AD3d 1095*

In this appeal the Appellate Division held:

1. Security records were properly admitted into evidence by disciplinary hearing officer.

2. The existence of another, alternative rational conclusion does not warrant annulment of the appointing authority’s conclusion that Peil was guilty of the charges preferred against him, citing Incorporated Vill. of Lake Success v New York State Public Employment Relations Board, 41 AD3d 599.

* Text of decision e-mailed to registered readers.

The status of the individual performing services for a public employer may be critical in determining liability

The status of the individual performing services for a public employer may be critical in determining liability
Czark v Hauppauge UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Czark case illustrates that the status of the individual performing services for a public employer may be critical in determining whether or not the public employer will be held liable for an injury to an individual.

A Hauppauge Union Free School District student complained that in the course of a school sports physical examination the examining physician “touched and fondled her breast.” The student and her mother sued the district and the physician allegedly involved. Hauppauge asked State Supreme Court Justice Floyd to dismiss it from the law suit, contending that (a) the physician alleged to have touched the student was “an independent contractor and not an employee of the school district” and that (b) the district “had no knowledge of any prior sexual propensities” of the physician.

Justice Floyd said that a school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties. Here, however, Justice Floyd ruled that the record clearly establishes an independent contractor status between the school district and the physician.

The defendant physician was the associate of the physician that was under contract with the district to provide medical services to the school district and was paid a scheduled fee for services performed. Also noted was the fact that the contracting physician was not named as a party to the action.

Accordingly, Justice Floyd dismissed the claims against the District for negligent supervision, negligent hiring and vicarious liability because, he said, “[t]here are no terms and conditions contained within this contract that would permit this Court to conclude that an employer/employee relationship had been established.”

The Court, however, refused to dismiss the suit filed against the physician by the student for the alleged battery and by her parent for the alleged “loss of services.”

In a law enforcement environment, safety interests trump sincere religious beliefs

In a law enforcement environment, safety interests trump sincere religious beliefs
Equal Employment Opportunity Commission v The GEO Group, Inc., USCA 3rd Circuit, No. 09-3093

GEO, a private company, contracted to run the George W. Hill Correctional Facility, the prison for Delaware County, Pennsylvania.

In April 2005, the Hill Facility instituted a dress policy that provided that “[n]o hats or caps will be permitted to be worn in the facility unless issued with the uniform.” The new policy also stated that “[s]carves and hooded jackets or sweatshirts will not be permitted past the Front Security Desk.”

These directives were interpreted to prohibit the wearing of a khimar, an “Islamic religious head scarf, designed to cover the hair, forehead, sides of the neck, shoulders, and chest,” which was until then worn by some female Muslim employees inside of the Hill Facility.

EEOC filed a lawsuit on behalf of a class of Muslim women employees against GEO, contending that GEO violated Title VII's prohibitions on religious discrimination when it failed to accommodate the Muslim female employees by providing them an exception to the prison's dress policy that prevented them from wearing khimars at work.

The Circuit Court affirmed the federal district court’s decision granting GEO's motion for summary judgment dismissing EEOC’s complaint.

The district court had cited Webb v. City of Philadelphia, 562 F.3d 256,* in support of its ruling.

In Webb the US Circuit Court of Appeals, 3rd Circuit, held that regardless of the sincere religious beliefs of certain police officer of the need to wear a khimar, their belief had to yield to the Philadelphia's police department's policy prohibiting the wearing of a khimar while on duty because "safety is undoubtedly an interest of the greatest importance."

* The Webb decision is posted on the Internet at http://www.ca3.uscourts.gov/opinarch/073081p.pdf

The GEO decision is posted on the Internet at: http://www.ca3.uscourts.gov/opinarch/093093p.pdf
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Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee

Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee
Garippa v New York City Bd. of Ed., NYS Supreme Court, [Not selected for publication in the Official Reports]

A Section 3020-a arbitrator found Michael Garippa, a New York City school teacher, guilty of conduct unbecoming the profession and authorized his termination.

Garippa, a tenured English teacher at Franklin D. Roosevelt High School in Brooklyn, was arrested by federal authorities and charged with conspiracy to distribute steroids.

Garippa subsequently pleaded guilty to one count of Conspiracy to Distribute a Controlled Substance and was sentenced to serve three years of probation and six months of home confinement; to perform 200 hours of community service by coaching children’s sports teams; and to continue drug counseling.

Section 3020-a Hearing Officer Jacquelin F. Drucker concluded that “... the question before this hearing officer relates not to guilt or innocence but to the proper level of discipline for the conduct at issue.”*

Drucker decided that Board was authorized to remove Garippa as a teacher because of two factors:

1. Newspaper reports identifying Garippa, his occupation and his employer, allegedly caused the board to suffer “unfortunate, unpleasant publicity”; and

2. The fact that “Respondent’s initial contact with the purchaser was made at a school function.”

Garippa appealed to the state Supreme Court and Justice H. Freedman granted Garippa’s petition and vacated the hearing officer’s decision. He then remanded the case to the Board for reconsideration.

Justice Freedman observed that the hearing officer did not suggest that Garippa could be trusted to work with children. The offense occurred off-duty and off-premises. The Court concluded that the hearing officer’s decision “was based on an assumption that Garippa’s guilty plea automatically constituted guilt of conduct unbecoming the profession,” rather than on an express finding to that effect.

This was improper, Justice Freedman said. Section 3020-a guarantees that the employee shall have full and fair disclosure of the nature of the case and evidence against him.

According to Justice Freedman, Garippa was neither told beforehand that the articles or the “bad publicity” would be the basis for either a finding of guilt or a determination of penalty nor was he ever shown copies of the articles, which were the subject of his cross-examination.

Since the newspaper articles were not submitted into evidence, Justice Freedman said that they were not part of the reviewable record before the court. In addition, Justice Freedman pointed out that “it is improper for an administrative agency [or an arbitrator] to base a decision of an adjudicatory nature upon evidence outside of the record.”

The court said the school board raised a legitimate issue regarding publicity because it has a right to protect the reputation of the institution. But since Garippa was denied an opportunity to address and rebut this allegation, the arbitrator’s determination was made without prior notice and lacked evidentiary basis.

The lesson here appears to be that an appointing authority cannot assume that a conviction of a crime will be sufficient to find an individual guilty of embarrassing it and justify its imposition of a penalty. Rather, the appointing authority must prove each and every element of it allegations, including those factors underlying the reason for bringing the disciplinary action in the first instance.

* N.B. In Kelly v. Levin, 440 NY2d 424, the Court of Appeals ruled that is a reversable error for an administrative disciplinary body to acquit an employee in a disciplinary action if the individual had earlier been found guilty of a criminal act involving the same allegations.

The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/
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