Terms and conditions of the appointment

Terms and conditions of the appointment
Carney v Insetta, App. Div., 3rd Dept., 263 AD2d 743, motion for leave to appeal denied, 94 NY2d 753

How does one determine what an individual is entitled to as an employee?

In resolving the Carney case, the Appellate Division said: just look at what the individual was offered when he or she was appointed to the position.

Julie Carney was appointed to the position of Animal Control Officer by the City of Oneonta. Previously a “full time” position, Carney was appointed as a part-time employee on an hourly basis. Carney initially was to work at least 24 hours per week and was paid at an hourly rate -- $8 per hour. She was also provided with health insurance benefits. When her work schedule was reduced, Carney said that she was entitled to the “salaried position” and the fringe benefits described in Oneonta’s personnel manual.

Told that she was not entitled to such benefits because she was a part-time employee, Carney for “breach of contract.”

Eventually the issue came before the Appellate Division. The court commented that while “a significant portion” of the briefs submitted by the parties debated the meaning and significance of certain passages set out in the city’s personnel manual, the question of Carney’s entitlement to the benefits she sought was “readily resolved by looking to the terms of her appointment.”

The Appellate Division said that while the position of Animal Control Officer was a full-time, salaried position and, pursuant to the terms of the City’s personnel manual, the incumbent was entitled to certain additional benefits, such as sick leave and vacation time, the record clearly shows, and Carney concedes, she was hired on a part-time, hourly basis.

The court noted that notwithstanding any benefits that may have been available to previous appointees holding the full-time, salaried Animal Control Officer position, there was nothing in the record to indicate that such benefits ever were intended to apply to a part-time, hourly appointee such as Carney.

The fact that the Animal Control Officer title is a “covered position” in the personnel manual was deemed irrelevant, since Carney’s position and the position covered by the manual “is not one and the same.” Significantly, noted the Appellate Division, the benefits described in the personnel manual were not offered to Carney at the time of her appointment and thus could not have formed the basis for her acceptance of the position.

Unless certain rights and benefits are mandated and thus available to an individual as a matter of law or pursuant to a Taylor Law agreement, the employer may set the terms of the appointment, including compensation and entitlement to fringe benefits.

The individual, unless he or she is able to negotiate an alternative arrangement, may either accept or decline the appointment under the terms and conditions offered by the appointing authority.
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Transferring unit work

Transferring unit work
CSEA Local 1000 and Local 836, 32 PERB 3015

The City of Newburgh abolished its positions of animal control officers, who were represented by CSEA. The city unilaterally transferred the duties of the positions to the nonunit police officers represented by Local 836.

CSEA objected and filed an improper practice charge with PERB contending that the city had violated the Taylor Law when it unilaterally transferred “non-emergency” duties previously exclusively performed by the animal control officers.

Ultimately PERB affirmed its Director of Public Employment Practices and Representation’s ruling that “the abolishment of the unit positions was a legislative act by the City Council that was not reviewable under Section 209-a.1(d) of the Act.” PERB said that the Director “correctly found that this was a legislative action involving a nonmandatory subject of negotiation and was not violative of ... the Act.”
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PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period

PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period
CSEA Local 1000 and Westchester County, 32 PERB 3017

Westchester County terminated probationary employee Michael Holcomb.

CSEA objected, contending that Holcomb was discharged because of his participation in union-related “protected activities” in violation of the Taylor Law.

PERB’s administrative law judge [ALJ] ruled that Kenneth Grauer, Holcomb’s supervisor, wrote a negative evaluation that was “tainted by union animus” and that this contributed to Holcomb’s dismissal.

Westchester appealed, arguing that Holcomb’s separation “was motivated by only legitimate business reasons” and, further, Holcomb was not protected in his activities because “he was not a union representative and was not engaged in union-sanctioned activity.”

PERB agreed with the ALJ’s finding but said that the remedial order should be modified. “Grauer believed Holcomb to be a union activist and that belief contributed to his negative recommendation.” PERB said that action taken against a unit member based upon a belief can violate the Taylor Law, citing its ruling in Holbrook Fire Department, 30 PERB 3062.

PERB commented that “while it may be true that an employer is free to terminate a probationary employee for any cause or no cause at all, this principle plainly does not apply if the employee is terminated in violation of law.”

PERB directed Westchester to offer Holcomb a second probationary period under another supervisor. It also said that if Holcomb successfully completed this second probationary period, which should not be less than the minimum probationary period authorized, Westchester should compensate him for lost pay and benefits, “less any earnings or other compensation received by him” from the date of his probationary termination through the date of his reinstatement to his former title.
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Reverse discrimination

Reverse discrimination
Hayden v Nassau County, CA2, 180 F.3d 42

The Hayden decision sets out some of the major considerations that are relevant in attempting to demonstrate “reverse discrimination” in civil service examinations.

After an exam was administered to 25,000 police department applicants in Nassau County in 1994, experts evaluated the 25 test sections administered to determine if any had an adverse impact on minority test-takers as well as whether the test questions were sufficiently job-related. The county only counted nine of the 25 test sections in computing the exam score. William Hayden and 67 other white, Latino and female applicants to the Nassau County Police Department brought a lawsuit in federal district court alleging that “a police officers’ entrance exam designed to minimize the discriminatory impact on minority candidates necessarily discriminated against them.”

The Second Circuit U.S. Court of Appeals in New York affirmed a U.S. district judge’s dismissal of the action. It called the exam a “race-neutral entrance examination with the purpose of eliminating or reducing the differential effects suffered by minority candidates.” Although Nassau County was “conscious of race” in redesigning its entrance exam, “it treated all persons equally in the administration of the exam,” the court said. Everyone took the same test and all tests were scored in the same manner, and no differential cutoffs or race norming was used, the court said.

The Court of Appeals rejected all of the arguments presented by Hayden, holding that he had failed to allege facts that, if proven true, would entitle the class to relief. Reviewing each of Hayden’s theories justifying relief, the court said that:

1. Equal protection: To state a claim for an equal protection violation, appellants must allege that a government actor intentionally discriminated against them on the basis of race, national origin or gender. Here is undisputed that the exam was administered and scored in an identical fashion for all applicants. The exam was not scored differently on the basis of a candidate’s ethnicity or gender, nor were differential cut-off points used for applicants of different races or sexes. In contrast to affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts, the Circuit Court said that Nassau’s efforts were not unlawful.

2. Facially neutral policy applied in discriminatory manner: Also rejected was Hayden’s arguments concerning facially neutral ordinance was discriminatorily applied.

3. Discriminatory intent and effect: Although Hayden claimed “an equal protection violation”, the court said it agreed with the district court’s conclusion that in order to prevail it must be alleged that Nassau County harbored a discriminatory intent against the class and that the entrance examination disproportionately impacted them. No such claims which would demonstrate either discriminatory intent or discriminatory impact were put forth.

The court’s conclusion: “Nassau County sought to design a police officers’ entrance examination which would reduce the discriminatory impact of its hiring practices on minority candidates. Although the decision to redesign the exam certainly took race into account, the exam was administered and scored in a wholly race-neutral fashion. We conclude that race-neutral efforts to address and rectify the racially disproportionate effects of an entrance examination do not discriminate against non-minorities.”

Accordingly, the Circuit Court ruled that “the 68 white and Latino appellants, male and female, in this case fail to state a claim under the Equal Protection Clause, Section 703 of Title VII, and Sections 106 and 107 of the Civil Rights Act of 1991.”
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An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award

An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award
Matter of Geneva City School Dist. v Anonymous, 2010 NY Slip Op 06915, Decided on October 1, 2010, Appellate Division, Fourth Department

The Geneva City School District filed 16 disciplinary charges pursuant to Education Law §3020-a against a tenured teacher [Anonymous] employed by the district.

Anonymous asked for a hearing, and the parties selected, "by mutual agreement," an arbitrator to serve as the Hearing Officer pursuant to §3020-a[3][b][ii] of the Education Law. At the commencement of the hearing, Anonymous moved for summary judgment dismissing 11 of the 16 charges. The Hearing Officer made an "interim award" granting the motion. Before the hearing reconvened to consider the remaining 5 charges filed against Anonymous, Geneva filed an Article 75 action seeking to vacate the interim award, contending that it was irrational and violated an important public policy.

Supreme Court rejected Geneva’s arguments and denied the petition. The Appellate Division affirmed the Supreme Court’s ruling, explaining that “The interim award was not ‘a final and definite award’ resolving the matter submitted for arbitration” within the meaning of CPLR §7511[b][1][iii].

In the words of the Appellate Division, “Inasmuch as the interim award does not constitute a ‘final determination made at the conclusion of the arbitration proceedings’ there is no authority for judicial intervention at this juncture.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06915.htm
NYPPL

Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline

Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline
Matter of Cravatta v New York State Dept. of Transp., 2010 NY Slip Op 06952, decided on October 1, 2010, Appellate Division, Fourth Department

Michael J. Cravatta, a Highway Maintenance Worker with the NYS Department of Transportation, was required to possess a valid New York State Class B Commercial Drivers License [CDL] as a condition of his employment by the Department.

When Cravatta’s CDL was suspended, the Department terminated his employment without his being given a pre-termination hearing.

Cravatta sued and Supreme Court granted his petition seeking to annul the determination terminating him from his position. Transportation appealed the lower court’s ruling.

The Appellate Division, stating that “Supreme Court erred …,” reversed the lower court “on the law” and dismissed Cravatta’s petition in its entirety.

The court said that as Cravatta was “required to maintain” a CDL, he was properly terminated after his CDL was suspended because he lacked one of the credentials required for his position.

Further, said the court, “Cravatta's termination was not disciplinary in nature and thus was subject to neither the arbitration clause in the collective bargaining agreement nor the provisions of Civil Service Law §75,” citing Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275.

NYPPL Comment: Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Indeed, it could be argued that the employer has no alternative, as it could be considered unlawful to permit an unlicensed individual to perform the duties for which a license is required.

Although the loss of a required drivers license if frequently the basis for an employee being summarily terminated, the loss of an attorney’s license to practice law or the expiration of a temporary permit to teach would also result such action.

All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position and provide the individual a reasonable opportunity to produce a valid license or certificate.

Essentially, the courts have held that where an individual is required to hold a valid license in order to perform the duties of the position and the employee losses the required license or it expires, the individual cannot be allowed to perform the duties of the position.

This proposition was explored by the Appellate Division in Martin ex rel Lekkas, 86 AD2d 712.

Lekkas, an Assistant Clinical Physician had been permanently appointed to a position in the Office of Mental Retardation and Developmental Disabilities,. He was subsequently terminated from his position without notice or hearing because he did not obtain the required license to practice medicine in New York State issued by the Education Department (Education Law Section 8522).*

The Appellate Division affirmed a lower court ruling that Lekkas’ termination was unlawful.

The court explained that although it was lawful to summarily discharge an employee without notice and hearing if the worker is unable to produce his or her required license, this could be done only if the duties being performed required the possession of the license.

According to the record, Lekkas was performing administrative duties rather than “practicing medicine.” As he was not engaged in the practice of medicine, Lekkas was not “unqualified” with respect to performing his administrative duties without the license that would have been otherwise required had he been engaged in the practice of medicine.

* The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.

The Cravatta decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06952.htm
NYPPL

If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination

If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination
Matter of Liguori v Beloten, 2010 NY Slip Op 06739, Decided on September 30, 2010, Appellate Division, Third Department

Dr. James M. Liguori pleaded guilty to one specification of professional misconduct based upon his failure to maintain adequate records and agreed to a penalty consisting of “a censure and reprimand,” being on probation for three years under the supervision of a practice monitor, to pay a $25,000 fine and to perform “100 hours of nonmedical community service.”

Subsequently the Chair of the Workers' Compensation Board, Robert E. Beloten, removed Dr. Liguori’s name from the Board’s list of eligible providers.*

When Liguori’s request for reconsideration and, or, administrative review of the removal of his name from the list of “WCB providers” was denied, he commenced a CPLR article 78 proceeding seeking to annul the Chair’s determination.

Supreme Court granted Liguori’s petition, finding that the Chairman Beloten had “failed to adequately explain the basis for [Liguori’s] removal from the list of authorized providers and remitted the matter for further proceedings”.

In response to the Board’s issuing a new determination that, again, removed his name from the list of authorized providers that set out its basis for Liguori’s removal, Liguori again filed an Article 78 petition contending that the Board’s second determination was arbitrary and capricious and violated his right to due process.

Supreme Court granted Liguori’s petition. Although the court found that the explanation for Liguori’s removal was adequate, it ruled that “the Chair's determination nonetheless was arbitrary and capricious” and ordered the Board to restore Liguori to its list of eligible providers. The Board appealed.

The Appellate Division reversed the lower court’s ruling, explaining that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law," citing the Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 – the so-called Pell Doctrine.

The Pell Doctrine stands for the proposition that courts must uphold the penalty imposed by an administrative body unless it is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness."

The Appellate Division said that in determining if a penalty meets the Pell standard, “the reviewing court may neither second-guess the administrative agency nor substitute its own judgment for the action taken.” Further, said the Appellate Division, should the court determine “that the penalty imposed cannot stand, the court may not fashion a reduced penalty” but must remit the matter to the agency for a redetermination of the penalty to be imposed.

As to its basis for vacating the Supreme Court’s determination, the Appellate Division said that it had concluded that based on its review of the record “we cannot say that the penalty imposed constitutes an abuse of discretion as a matter of law.”

* WCB providers are authorized to render care and treatment to individuals who had suffered work-related injuries.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06739.htm
NYPPL

Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision

Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision
Matter of Monsay v New York State Div. of Human Rights, 2010 NY Slip Op 06928, Decided on October 1, 2010, Appellate Division, Fourth Department

Evelyn H. Monsay filed charges against the State University College at Oswego with the New York State Division of Human Rights alleging unlawful discrimination based on age and gender.

The Division found that Oswego had not unlawfully discriminate against Monsay on the basis of gender or age and dismissed her complaint.

Monsay appealed but the Appellate Division sustained the Division’s determination, hold that it was supported by substantial evidence.

The court then observed that “Even assuming, arguendo, that [Monsay] established a prima facie case of gender or age discrimination, we conclude that the College rebutted the presumption of discrimination created by [Monsay’s] by presenting the requisite "legitimate, independent, and nondiscriminatory reasons to support its employment decision[s."

It should be noted that once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifted to Monsay to demonstrate that the explanation offered by Oswego was mere subterfuge for its unlawful discriminatory actions. Apparently Monsay was unable to do so to the satisfaction of the Division of Human Rights.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06928.htm
NYPPL

Vacating an arbitration award

Vacating an arbitration award
Local 756 ex rel Westfall v Cohoes, 263 AD2d 652

The Westfall decision concerned an arbitration award on a ruling involving the denial of Section 207-c benefits. It sets out some of the basic elements considered by courts when they are asked to vacate an arbitration award.

The case also shows the distinction that can be made between a “job related” illness, such as stress, and an injury incurred “in the performance of duty” for the purposes of Section 207-a or Section 207-c.

Cohoes and Local 756 negotiated a Taylor Law provision in which it was agreed that Section 207-a and Section 207-c disputes would be resolved in accordance with the grievance procedures set out in the collective bargaining agreement.

Kenneth Westfall, a police lieutenant employed by the City of Cohoes, filed applications in March 1997 and in June 1997 seeking 207-c benefits. The city rejected both of Westfall’s applications, concluding that Westfall’s injury -- symptoms associated with stress and depression -- was not sustained in the performance of his duties.

The Appellate Division commented that “Westfall suffered from stress and depression as a result of conflicts with a supervisor” and that these episodes of stress and depression led to absences.

The issue was submitted to arbitration in accordance with the grievance procedure set out in the Taylor Law agreement between the city and the union. Further, the parties had stipulated that the question for the arbitrator to resolve was whether Westfall “[s]hould ... receive [General Municipal Law Section] 207-c benefits for [his] illness”.

In the course of the arbitration, there was testimony from three physicians and a clinical psychologist, each of whom had examined Westfall. All agreed that Westfall suffered from depression, but that this illness was not caused by actual police duties but, rather, from an interpersonal conflict with a superior.

Considering “the uniqueness of the hazards faced by police officers,” the arbitrator said that Westfall’s illness, although job related, was not a result of the performance of his police duties and therefore not the type of illness encompassed under the statute. The conclusion: Westfall “should not receive [Section] 207-c benefits.”

Local 756 filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating the award. It contended that (1) the award was irrational or, in the alternative, (2) the award violated public policy. The union’s petition was dismissed by the Supreme Court and the local appealed, asking the Appellate Division review the matter.

The Appellate Division agreed that a court may vacate an arbitration award if it finds that the award is violative of a strong public policy or it is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power. The problem here was that the Appellate Division concluded that the arbitrator’s award did not offend any standard.

The Appellate Division also commented that “[t]he power of the courts to intervene is even more restricted when the arbitrator’s interpretation resolves the question submitted, and not merely one aspect of the dispute”.

As to the local’s claim that the award was “irrational,” the Appellate Division said that the arbitrator’s interpretation of the statute, even though the interpretation “may have been erroneous or inconsistent with seemingly relevant decisional authority,” under the standard that the courts must use when considering vacating arbitration awards, “we are unable to conclude that the arbitration award denying General Municipal Law Section 207-c benefits under these circumstance was totally irrational.”

On this point the court, citing Silverman [Benmor Coats], 61 NY2d 299, said that an arbitrator is not bound by principles of substantive law and may do justice as he or she sees fit, applying his or her own sense of law and equity to the facts of the subject dispute.

Turning to the local’s public policy argument, the Appellate Division said that it was not persuaded that the award violates strong public policy, commenting that “the Court of Appeals has repeatedly cautioned that the public policy exception is narrow and an award may be set aside on this ground “[o]nly when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility.”

Before a court may intervene by vacating an arbitration award on public policy grounds, it “must be able to examine an arbitration agreement or an award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement,” quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631). Finding that Local 756’s contentions did not satisfy this rigorous standard, it affirmed the lower court’s decision denying the local’s application to vacate the award.
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Workers’ Compensation Leave - Civil Service Law Section 71
House v NYS Office of Mental Health, 262 AD2d 929

Martha I. House, a keyboard specialist at Richard H. Hutchings Psychiatric Center, suffered a work-related injury in December 1991. As a result she was frequently absent from work. The psychiatric center deemed these absences to be pursuant to workers’ compensation leave under Civil Service Law Section 71.

When the cumulative total of her Section 71 absences exceeded one year, the appointing authority elected to terminate her from her position. House was told that she could apply for reinstatement to her former position if she could demonstrate that she was medically fit.*

House submitted a note from her physician stating that she was medically fit. The Psychiatric Center referred her to a physician employed by the State's Employee Health Service for an evaluation. The EHS physician stated that House was “too symptomatic to return to work and perform the full duties of her position.” Based on the EHS physician's evaluation House was terminated from her position.

When House sued seeking reinstatement to her job and back pay a State Supreme Court decided that the Center had not given House “proper notice of the procedure for requesting a post-termination hearing, resulting in the denial of her due process right to an administrative appeal.”

Supreme Court remitted the matter for an administrative hearing on the issue of House’s medical condition and her ability to perform her job-related duties at the time of her termination. It declined, however, to order either House’s reinstatement or back salary at this point in the process.

Both House and the employer appealed. The Appellate Division ruled although House was entitled to a post-termination hearing, until that administrative remedy has been exhausted, a resolution of her other demands would be premature.

The Appellate Division said that once it has been determined by the appointing authority’s physician that an employee is unfit to serve, he or she cannot be restored to employment until there is a finding that the employee is medically fit to perform the duties of the position.

Thus, the Supreme Court’s judgment remitting the matter for an administrative hearing to develop the record regarding petitioner’s medical fitness was appropriate.

N.B. This decision suggests that the due process procedures available to an individual on leave pursuant to Section 71 have been confused with the administrative procedures required to be followed in the event the appointing authority wishes to place the individual on involuntary leave pursuant to Section 72 of the Civil Service Law, i.e., absence due to an injury or disease that is not job-related. Further, if the appointing authority subsequently elects to terminate the employee after he or she has been continuously absent from his or her position for one year or longer pursuant to Section 72, it may due so in accordance with the provisions set out in Section 73 of the Civil Service Law.

Insofar as Section 71 leave is concerned, the appointing authority has the discretion, but is not required, to terminate an employee on Section 71 leave once the individual has been absent from work due to the underlying injury or disease for a cumulative period of at least one year. Presumably the termination is effected while the individual is actually absent from work and on leave pursuant to Section 71.

Section 71 then provides, in pertinent part, that in the event an employee is terminated pursuant to Section 71 of the Civil Service Law "Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."

Understandably, it is the individual's, rather than the employer's responsibilty to make such an application, as only the individual can determine if his or her disability is no longer an impediment to his or her performing the duties of his or her position.

Section 71 then provides that "If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant
position for which he or she was eligible for transfer."

If the medical officer does not certify the individual is physically and mentally fit to perform the duties of the position, presumably the individual could file an Article 78 petition challenging the determination.

In any event, if the individual is not determined to be qualified to return to his or her position, he or she may make additional applications for evaluation thereafter.

* In contrast, Section 72 of the Civil Service Law provides for leaves of absences required because of non-work related injuries or disease. An individual who has been absent for a consecutive one-year period may be terminated pursuant to Section 73 of the Civil Service Law.
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Adjusting a school's annual budget

Adjusting a school's annual budget
Leman v South Orangetown CSD, Decisions of the Commissioner of Education #14166

South Orangetown Central School District’s school superintendent position became vacant April 1, 1998. In preparing its budget for the 1998-99 school year, the district included an appropriation of $131,885 for the superintendent’s salary line as the amount it expected would be required to employ a new superintendent.

The district later entered into a contract with its new superintendent, Eileen Gress, that provided for an annual salary of $142,000 plus benefits. The total amount of Gress’ compensation was disclosed as required by Section 1716 of the Education Law. The district adopted a second, revised budget reflecting Gress’ compensation.

James Leman filed an appeal with the Commissioner of Education contending, among other things, that the board’s actions were improper as they involved “changes ... to aid the central administration portion of the budget.” He asked the Commissioner to void the district’s contract with Gress and to “direct the district to enter into new negotiations to fill the superintendent position.”

The Commissioner dismissed Leman’s appeal on the merits noting that the “actual figure for the superintendent’s salary and benefits was included in the proposed budget that was made available at the ... public hearing and presented to the voters....”

This, said the Commissioner, complied with the requirements set out in Section 1804.4 of the Education Law.

Section 1804.4 requires the board of a central school district to prepare and present a school budget at a budget hearing “at least 7 but not more than 14 days before the district meeting at which the budget vote will occur.” The record, said the Commissioner, showed that the district met this requirement.
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Applying for disability retirement

Applying for disability retirement
Grossman v McCall, App. Div., Third Dept., 262 AD2d 923, Motion for leave to appeal denied, 94 NY2d 765, Appeal on Constitutional grounds dismissed, 94 NY2d 796

Retirement and Social Security Law Section 62(aa)(2), allows a member of a public retirement system eligible for ordinary disability retirement to file an application for benefits if (1) the member is still in service at the time of the application or (2) the member applies within 90 days from the date of his or her discontinuance of service. The Appellate Division’s decision in the Grossman case illustrates that if an application for ordinary disability retirement is untimely, the application will be rejected -- even if there are extenuating circumstances.

The case arose after the Comptroller disapproved the application for ordinary disability retirement filed on behalf of Herbert E. Grossman by his wife. Grossman, a psychologist with the Bronx Developmental Services, sustained an injury at his home. He was terminated from his position effective July 27, 1990.

More than three years later his wife, Marsha Grossman, acting under a power of attorney, filed an application with the New York State Employees’ Retirement System [ERS] for ordinary disability retirement benefits. Although Mrs. Grossman proved that her husband “was mentally, psychiatrically and neurologically disabled after the accident,” the fact that the application was not filed within the time allowed by Section 62(aa)(2) proved critical. The Appellate Division said that Grossman’s illness did not toll the mandated filing period.

The court also rejected Mrs. Grossman’s contention that her husband had a property interest in the benefit and that the rejection of his application constituted a denial of a property right without due process. The Appellate Division said that filing of a timely application “constitutes a condition precedent to the ripening of any right to these benefits from which a claim of due process can arise.”

The decision also reports that ERS “received a request on [Grossman’s] behalf for an application for benefits by telephone on September 25, 1990 and that an application was sent to his home on October 3, 1990 -- when sufficient time existed for [Grossman] to have filed a timely application.” In addition, said the court, “the record reflects that [Grossman] did, in fact, have sufficient capacity to timely file [for], and therefore receive, social security disability benefits.”
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