Appellate Division reconsiders the disciplinary penalty imposed on an employee after finding the employee would not lose pension rights

Appellate Division reconsiders the disciplinary penalty imposed on an employee after finding the employee would not lose pension rights
Kennedy v. Bennett, 26 AD3d 334; reconsidered and revised, 31 AD3d 764; motion for leave to appeal denied, 7 NY3d 718

Brian M. Kennedy was found guilty of two of the three charges of misconduct filed against him and dismissed him from the New York Division of State Police.

The Appellate Division decided that substantial evidence supported the hearing officer’s findings that Kennedy was guilty of two of the charges filed against him but that the penalty imposed by the appointing authority, dismissal, “was so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing Matter of Pell v Board of Education of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

State Police filed a petition seeking “leave to appeal” this unanimous decision by the Appellate Division to the Court of Appeals or, in the alternative, approval to reargue the case before the Appellate Division.

The Appellate Division denied the Division of State Police’s request to appeal the ruling to the Court of Appeals but granted its motion to reargue the matter.

This time the court unanimously decided that “the penalty imposed by the [appointing authority] is not so disproportionate to the offenses as to be shocking to one's sense of fairness” as Kennedy, who had not yet achieved 20 years of service, “will not lose his pension as a result of this termination,” citing Retirement and Social Security Law Section 381-b[b][3].*

However, there are situations where the employee’s termination could result in a forfeiture of the individual’s retirement allowance.

For example, Section 13-173.1 of the Administrative Code of the City of New York requires an employee subject to its provisions to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.

The Court of Appeals addressed the impact of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System. Waldeck and Barbaro challenged the forfeiture of their retirement benefits on the ground that they had not been advised of the effective dates of their respective discharges from employment after being found guilty of disciplinary charges filed against them. Both Waldeck and Barbaro had been terminated prior to their intended dates of voluntary resignation. Did this meant that they could not vest their retirement benefits and thus those benefits would, in effect, be forfeited? In a word -- yes!

The Court of Appeals said that Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory source and thus the fact that neither Waldeck nor Barbaro were aware that they had been terminated prior to the effective date of their respective resignations "has no relevance to the effective date of termination from employment under Section 13-173.1."

According to the decision, “there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested within the meaning of Section 13-173.1 of the Code.”

Castro v Safir, 291 AD2d 212, is another case in which one of the issues before the court concerned the forfeiture of a retirement allowance.

Castro was terminated from his position following his "second arrest." According to the decision, Castro was discharged after he had applied for ordinary disability retirement but before he was actually retired for disability. The Appellate Division ruled that Castro had forfeited his disability retirement allowance as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.

* Retirement and Social Security Law Section 381-b[b][3] provides as follows: (3) Upon attainment of the mandatory retirement age without completion of twenty years of such service, each such member shall receive a pension which, together with an annuity for such years of service as provided in paragraph four of this subdivision, shall be equal to one-fortieth of his final average salary for each year of creditable service in such division. Every such member shall also be entitled to an additional pension equal to the pension for any creditable service rendered while not an employee of the division as provided under paragraphs three and four of subdivision a of section three hundred seventy-five of this article. This latter pension shall not increase the total allowance to more than one-half of his final average salary.
NYPPL

Governor Paterson approves layoff plan that will reduce the State’s workforce by an additional 2,000 employees

Governor Paterson approves layoff plan that will reduce the State’s workforce by an additional 2,000 employees
Source: Office of the Governor

On October 28, 2010, Governor Paterson said that New York State is facing more than an $8 billion deficit next year and more than a $30 billion deficit over the next three years.

In response to this “stark reality,” the Governor said that he had approved the implementation of a layoff plan to reduce the State’s workforce by an additional 2000 employees, including some “898 layoffs to be effected at year's end.”

Governor Paterson said that his plan will result in a reduction in the State workforce by more han 11,000 employees -- “a reduction greater than 8 percent for the workforce under Executive control.”
NYPPL

Requiring teachers to get school's permission to use school's internal mailboxes to distribute personal materials does not violate free speech rights

Requiring teachers to get school's permission to use school's internal mailboxes to distribute personal materials does not violate free speech rights
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.

Policastro v. Tenafly Bd. of Educ., ___F.Supp. 2d____ (D. N.J. May 7, 2010), is an interesting case. A district court in New Jersey has ruled that school district officials did not violate a teacher’s First Amendment right to freedom of speech when they disciplined him for placing personal correspondence in teachers’ internal mailboxes in contravention of the district’s materials distribution policy requiring teachers to obtain prior permission.

The court concluded that the policy constituted a reasonable content-neutral time, place and manner restriction.

The court rejected Policastro’s contention that based on the free speech principles enunciated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1968), that he had the right “to use the teacher mailboxes without administrative permission.” The court explained that when the speaker is a government employee, the public employer may restrict speech that “does not relate to matters of public concern as long as the employee’s interest in speaking does not outweigh the government’s interest in prohibiting him or her from doing so” under Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968), as refined in Garcetti v. Ceballos, 547 U.S. 410 (2006). Like Tinker, however, the Pickering/Carcetti standard involves content-based restrictions, and is not applicable to content-neutral limitations on government employee speech like the regulation at issue here.

Editor's Comments: A similar issue was considered by PERB.

The Public Employees Federation [PEF] filed a complaint with PERB after a PEF board member, state education program supervisor C. Michael Darcy, lost his State e-mail privileges because he used his account to conduct union business.

Darcy lost his department e-mail privilege after the Governor's Office of Employee Relation's [GOER] circulated a memorandum to state departments and agencies indicating that the use of state equipment to conduct union business was "strictly prohibited."

PEF conceded that Darcy, and other PEF officials, have used the state's e-mail to discuss union business but contended that this is a "past practice" and thus any change should have first been negotiated with the union. GOER disagreed, explaining that its reminder simply reflected a management policy that dates back to the 1970's.

In a case involving "snail-mail" rather than e-mail, [Roosevelt Teachers Association, 16 PERB 4545] PERB said that a union does not have any statutory right to access employee mailboxes on employer's property. In the absence of a contractual provision permitting such access, PERB ruled, an employee union representative may be denied approval to place material in the boxes. [Of course the union could distribute such information via the teacher's school mailbox by using the U.S. postal service "to deliver the mail."]

In a similar case, the U.S. Supreme Court declined to find discrimination when a school district decided not to allow an employee organization to use its internal mail system to distribute union material to its members [Perry Education Association v Perry School District, 460 US 37].

In contrast, the National Labor Relations Board ruled that the use of the employer's e-mail to communicate about union business is a protected activity within the meaning of Section 7 of the National Labor Relations Act. The case arose when nonunion Timekeeping Systems, Inc. fired an employee after he sent e-mail messages to the company's chief executive officer and fellow employees complaining about Timekeeping's new leave policies [Timekeeping Systems, Inc. v Leinweber, 323 NLRB 30].

N.B. The Taylor Law [Section 209-a.6, Civil Service Law] provides that "in applying this [Article], fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent."
NYPPL

Mandatory retirement

Mandatory retirement
Mainello v McCall, 252 AD2d 235, motion to appeal dismissed, 93 NY2d 919

In 1988 the state amended the Retirement and Social Security Law to change the mandatory age of retirement for certain members of the Police and Firefighters’ Retirement System [PFRS] from age 60 to age 57 [Chapter 795 of the Laws of 1988].

State Police Assistant Deputy Superintendent John A. Mainello challenged the requirement that he retire from his position upon his attainment of age 57 [RSSL Section 381-b(e)].

He filed a lawsuit contending that the legislature’s action violated the state Constitution. He said it contradicted the so-called “Nonimpairment Clause” (Article V, Section 7), which provides that a retiree’s retirement benefits from a public retirement system of this state are contractual and may neither be diminished nor impaired.

Mainello argued that his retirement benefits would be compromised because he would “lose three years of member service.” The Appellate Division disagreed, holding that Mainello’s early retirement would have a “minor and entirely incidental” influence on his retirement benefits.

Furthermore, the Appellate Division pointed out that the law only protects the benefits of current retirees, not the potential benefits of employees who are approaching retirement. [“(T)he fact that there can be no Constitutional impairment of pension system benefits does not create a constitutional right to stay in public employment” (see Cook v City of Binghamton, 48 NY2D 323); “(An) expectation of remaining in public employment ... is not within the scope of protection afforded by the Nonimpairment Clause.” (see Lake v Regan, 135 AD2d 312)]

In addition, the amendment requiring PFRS members to retire at age 57 “was enacted to further a legitimate public policy goal,” the Appellate Division said.

Courts will probably apply a similar reasoning to other challenges to mandated early retirement on constitutional grounds.

Judge Cardona dissented, commenting that “it is settled law that “[t]he Nonimpairment Clause of the New York Constitution was adopted in order to prevent the reduction of an individual’s retirement benefits after he or she had joined a retirement system operated by the State or one of its civil divisions.” Judge Cardona also cited Lake v Regan [supra] in support of his position.

In effect Judge Cardona took the position that a member of a public retirement system is entitled to at least the level of benefits provided by law when he or she joined the system when he or she retires. Because the system provides a “defined benefit,” Judge Cardona concluded that a member suffers an impairment of his or her constitutionally protected retirement benefit if the calculation of his or her “defined benefit” would be adversely affected by any amendment to the Retirement and Social Security Law prior to his or her effective date of retirement.
NYPPL

Religious freedom and employment

Religious freedom and employment
Marchi v BOCES, 2nd Cir., 173 F.3d 469

A school risks violating the Establishment Clause of the U.S. Constitution if any of its teachers’ activities give the impression that the school endorses a religion.

But how far can a school board go in limiting a teacher’s classroom speech on religious issues before it tramples on another Constitutional guarantee: the right to free expression? The U.S. Court of Appeals for the Second Circuit, which includes New York State, wrestled with those issues in the Marchi case.

Dan Marchi, a certified special education teacher in the Capital Region BOCES, taught socially and emotionally disturbed high school students. Marchi said he “underwent a dramatic conversion to Christianity,” and admitted that he shared this experience with his students.

In the fall of 1991 he modified his instructional program to discuss topics such as forgiveness, reconciliation, and God. He used a tape, Singing the Bible, in class and voiced his thankfulness to God in at least one letter to a parent.

After Marchi ignored letters directing him to refrain from using religion as part of his instructional program, the BOCES filed charges of insubordination and “conduct unbecoming a teacher” against him. A state Department of Education hearing officer found that Marchi had committed an act of insubordination and imposed a penalty of six months’ suspension without pay.

However, Marchi’s return to teaching was conditioned on his commitment, in writing, to adhere to a directive that he would not discuss religion in class. Upon advice of his attorney, Marchi said that he would adhere to the directive.

Marchi then filed a civil rights complaint pursuant to 42 USC 1983, alleging that:

1. By suspending him in 1995, BOCES violated his rights to academic freedom, free association, free speech, and free exercise of religion, as well as his rights under the Religious Freedom Restoration Act;

2. BOCES violated his right to due process and retaliated against him when deciding his classroom assignment upon his return to teaching;

3. The directive he accepted was unconstitutionally vague and overbroad; and

4. The directive “proscribe(d) protected speech between Marchi and students’ parents.”

A federal district judge dismissed his complaint, saying “thousands of teachers of common intelligence are able to distinguish between their instructional program and their personal life and do so without violating the establishment clause.” In addition, the District Court found that the challenged directive “addresses only [Marchi’s] instructional program and no other aspect of [his] personal life”.

Marchi appealed the ruling. The Circuit Court agreed with the lower court, holding that while “the directive is unquestionably a restraint on Marchi’s First Amendment rights,” not all restraints on free exercise and free speech rights are invalid. The court said that the validity of a particular restraint depends on the context in which the expression occurs.

The Circuit Court noted that the decisions that governmental agencies make in determining when they are at risk of Establishment Clause violations are difficult.

In dealing with their employees, public employers cannot be expected to resolve so precisely the inevitable tensions between the Establishment Clause and the Free Exercise Clause “that they may forbid only employee conduct that, if occurring, would violate the Establishment Clause and must tolerate all employee conduct that, if prohibited as to non-employees, would violate the Free Exercise Clause.”

In discharging its public functions, said the Court, the governmental employer must be given some latitude and the employee must accept that he or she does not retain the full extent of free exercise rights that he or she would enjoy as a private citizen.
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The right to appeal an arbitration

The right to appeal an arbitration
Wilson v NYC Bd. of Ed., 261 AD2d 409

The Wilson decision illustrates a basic tenet to arbitration under a collective bargaining agreement: the “owners” of the arbitration are the parties to the Taylor Law agreement. Those parties typically are the employer and the union.

The individual employee whom the grievance involves is not a party to the arbitration. Accordingly, the union has the right to decide whether to appeal an arbitration decision. The individual union member is not a party to the arbitration and lacks this right, as Nancy Wilson discovered.

Wilson was a teacher in New York City from 1984 until 1996, when the Board of Education decided to terminate her. Wilson’s union initiated a grievance proceeding on her behalf to challenge her termination. After the grievance was denied, the union filed a demand for arbitration as provided for in the collective bargaining agreement.

The arbitrator rejected the appeal, upholding the school board’s decision to terminate Wilson.

Wilson then filed a petition seeking to have the arbitrator’s award vacated pursuant to Section 7511 of the Civil Practice Law and Rules. The Appellate Division dismissed Wilson’s petition on the grounds that Wilson did not have any standing to challenge the arbitration award. The court noted that she was neither a “party” to the collective bargaining agreement nor a “party” to the arbitration.

Under the circumstances, ruled the court, only an employer or a union has standing to ask a court to vacate an arbitration award or have it confirmed. The employee involved cannot do this on his or her own behalf unless he or she is able to demonstrate that the union’s decision not to proceed was made in bad faith.
NYPPL

Right to counsel during administrative disciplinary action

Right to counsel during administrative disciplinary action
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307, motion for leave to appeal denied, 99 NY2d 509

Employees against whom disciplinary charges have been filed typically have the right to (1) testify on their own behalf and (2) the right to representation by an attorney. Such rights are standard in the disciplinary provisions of collective bargaining contracts as well as disciplinary statutes such as Section 75 of the Civil Service Law and Section 3020-a of the Education Law.

The Elmore decision illustrates that an employer who seeks to limit an employee’s access to counsel during a disciplinary proceeding can be viewed by the courts as committing a fatal error.

The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Elmore, pursuant to Section 3020-a. Elmore’s personal testimony took place on various dates over a period of ten weeks.

At the district’s request, the hearing officer ordered Elmore not to “confer with his attorney about his testimony over the breaks in the hearing.” Nor could Elmore “review transcripts of his testimony during breaks in his testimony.”

Found guilty of the charges, Elmore asked the Supreme Court, Nassau County, to vacate the award pursuant to Section 7511 of the Civil Practice Law and Rules [CPLR].*

Elmore contended the hearing officer’s order constituted “misconduct by the arbitrator” within the meaning of Article 75 of the CPLR because the order effectively denied him the right to counsel.

The district cited a ruling in a criminal matter where the Court of Appeals upheld a lower court’s “restriction of conferencing between a defendant and his attorney during a recess in the course of a criminal trial” [People v Enrique, 80 NY2d 869] in support of its position. But Justice Geoffrey J. O’Connell was not persuaded Enrique was analogous because that ruling pertained only to a single, brief recess period.

The court said that a closer approximation of Elmore’s situation was addressed in People v Carracedos, 89 NY2d 1059. In Carracedos the Court of Appeals ruled that the preclusion of communications between counsel and client during a single overnight recess was a violation of the accused’s right to counsel. Elmore had demonstrated that he was prevented from communicating with his attorney for “weeks at a time” in the middle of his testimony.

Holding that Elmore’s rights were prejudiced by the hearing officer’s order barring him from speaking with his attorney, Justice O’Connell vacated the arbitration award in its entirety. The Appellate Division affirmed the ruling.

[For decisions addressing Elmore’s being placed on leave without pay in concert with this disciplinary action, see Elmore v. Mills, 296 AD2d 704 and Elmore v. Plainview Old Bethpage Central School Dist., 299 AD2d 545].

* N.B. Section 3020-a, as amended, provides that appeals from a Section 3020-a hearing officer’s determination must be filed within ten days pursuant to Section 7511, CPLR.
NYPPL

Appealing a disciplinary termination

Appealing a disciplinary termination
Stevens v McGraw CSD, 261 AD2d 698, motion for leave to appeal denied, 93 NY2d 816

McGraw Central bus driver Arthur Stevens’ failure to comply with Education Law Section 3813 proved fatal to his challenging his dismissal from his position following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.

Section 75 disciplinary charges were filed against Stevens alleging that he permitted unacceptable behavior on his bus, was absent without leave, inaccurately reported his work time, and failed to comply with his supervisor’s directives as well as with district rules and procedures.

The hearing officer found Stevens guilty of seven of the charges preferred against him and recommended that he be discharged. The district accepted the hearing officer’s findings and recommendation.

When Stevens challenged his termination, the district raised the technical defense that he had failed to comply with notice requirements set out in Section 3813 of the Education Law.

Section 3813 requires that the individual, before going to court, give the school district an opportunity to respond. The individual must file an affidavit that the district was given timely notice of the claim and that it failed to act within 30 days of such notice.

The Appellate Division affirmed a lower court’s ruling dismissing Stevens’ Article 78 action, holding that “the mere fact that he seeks only reinstatement to his former position, as opposed to reinstatement coupled with back pay and benefits, does not exempt him from the requirements of Education Law Section 3813, as a review of the petition makes clear that [Stevens] nonetheless primarily is seeking to enforce a private right.”

Section 76 of the Civil Service Law gives a person found guilty of charges brought pursuant to Section 75 a statutory right to appeal the penalty imposed to the responsible civil service commission or, in the alternative, to the courts pursuant to Section 78 of the CPLR. However, the Appellate Division’s ruling in Stevens holds that an employee of a school district or a BOCES, as a condition precedent to his or her filing an Article 78 appeal challenging the disciplinary action, must file a timely notice of claim with the district or BOCES.

In contrast, in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights.”

Presumably this means that although a teacher who is terminated for cause pursuant to Section 3020-a of the Education Law is not required to file a notice of claim as a condition precedent to his or her filing an appeal pursuant to Article 75 of the CPLR, [see Education Law Section 3020-a.5], a school district employee in the classified service who is terminated after a Section 75 hearing must satisfy the requirements of Section 3813 in order to file an Article 78 action challenging the disciplinary action.

It would seem that the fact that the Civil Service Law provides an aggrieved employee with a statutory right to appeal an adverse disciplinary action to a civil service commission or to the courts should have the same standing with respect to such an employee’s “tenure rights” as does Section 3020-a.5 insofar as the “tenure rights” of educators are concerned.

Another type of case in which the school district attempted to invoke the provisions of Section 3813 involved a teacher’s application for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law.

In Elmsford UFSD v Alfred G. Meyer, (Supreme Court, Albany County), State Supreme Court Justice Anthony Kane rejected the district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807.

While it appears that exceptions to the Section 3813 “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813 rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
NYPPL

Tenure by estoppel

Tenure by estoppel
Matter of Andrews v Board of Educ. of the City School Dist. of the City of N.Y., 2010 NY Slip Op 32963(U), October 15, 2010, Supreme Court, New York County. Judge Joan A. Madden [Not selected for publication in the Official Reports]

Dana Andrews sought a court order declaring that she had attained tenure by estoppel as a result of her being continued in service after the end of her probationary period and direct the New York City Board of Education to reinstate her to her former position with back salary.*

Although a newly appointed teacher is required to serve a three-year probationary period, because Andrews was entitled to two years of so-called “Jarema credit toward the completion of her probationary period.** Accordingly, Andrews’ probationary period was to end August 30, 2008.

When Andrews was advised that she would not be given tenure at the end of her probationary period, she requested, and was granted, “another chance to improve and perform satisfactorily,” and Andrews signed an agreement extending her probationary period for one year, i.e., through August 30, 2009. The agreement provided that Andrews would either be granted tenure, if she satisfactorily completed the additional year of probation, or she could be terminated on or before that date.

On or about June 18, 2009 Andrews was sent a letter advising her that her overall rating as a probationary teacher was “unsatisfactory.”

On September 8, 2009, the first day of the 2009-2010 school year, Andrews reported for duty. Her principal advised her that she should not be there because she had been terminated. Andrews replied that she had “never received written notice of her termination and left the school, only to return later that day, indicating that her union representative had told her that she should remain at the school for that day.

Andrews’ union representatives subsequently met with school officials. The union's representatives asserted that Andrews’ principal had stated that she had "messed up" by failing to provide Andrews with timely written notice that she was to be discontinued.

The Board of Education, contending that Andrews had not attained tenure by estoppel, withdrew its argument that she was not entitled to back pay, conceding that she had not been be provided with a written notice of her discontinuance more than 60 days before her probationary period expired.

Noting that a teacher can acquire tenure either through appointment or by acquiescence and estoppel. Typically tenure by estoppel is acquired when a school board “accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term.”

An individual claiming tenure by estoppel has the burden of demonstrating that his or her “post-probationary” services were performed with the knowledge and consent of the responsible board of education. However, said Judge Madden, “The mere failure to provide a teacher with the required amount of notice of an intention not to recommend tenure does not confer tenure," citing Matter of Brunecz v City of Dunkirk Bd. of Educ., 23 AD3d 1126.

Noting that the Board of Education terminated Andrews on or about September 11, 2009, the court said that in Educ. of Cohoes City School Dist., 59 AD2d at 807, the Appellate Division held that a teacher who taught for a few days after his probationary period ended had not attain tenure by estoppel “where prompt action was taken to discharge the teacher as soon as his presence was discovered.”***

Accordingly, Judge Madden dismissed Andrews’ petition seeking a judgment that she had attained tenure by estoppel but commented that her request for alternative relief – back pay for failure to provide the statutory notice that she was not to be given tenure at the end of her probationary period -- was not in dispute and would be provided by the Board of Education.

* In the alternative, she contended that she was entitled to 60 days of back pay because she was not given the requisite pre-termination notice as to he failure to satisfactorily complete her probationary period.

** Section 2509.1(a) [the "Jarema Act"] provides that the statutory three-year probationary period for teachers may be reduced by up to two years if the teacher rendered service as a "regular substitute" for a full term or more prior to the teacher's probationary appointment by the school district. In determining the duration of the probationary period, if a teacher is absent during his or her probationary period, the district may extended the probationary period for a period of time equal to the absence.

*** Similarly, as the Appellate Division held in Mendez v Valenti, 101 AD2d 612, as long as the termination of a probationer [in the classified service] is effected within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period. Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position. Although the effective date of the employee's removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before close of business on the last day of his or her probationary period.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32963.pdf
NYPPL

Prohibited subjects of arbitration

Prohibited subjects of arbitration
Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513
[Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, 26 AD3d 843, modified.]

Readers are undoubtedly familiar with the concept that there are “prohibited subjects of negotiations” within the meaning of the Taylor Law. In Chautauqua, the courts considered a corollary to this prohibition: prohibited subjects of arbitration.

Although the Taylor mandates that a public employer to bargain with employee organizations and to enter written agreements concerning the terms and conditions of employment and may agree to submit disputes to binding arbitration, this is permitted only in "the absence of 'plain and clear' prohibitions in statute or controlling decision[al] law, or restrictive public policy" (see Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268).

In determining if a dispute is arbitrable, a court applies a two-part test:

1. Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance?

If the court finds that there is no such prohibition, it must examine the collective bargaining agreement and then apply the second test:

2. Did the parties agreed to arbitrate the particular dispute?

If the court finds that the parties did not agree to submit the matter to arbitration, an arbitrator cannot act.

In other words, a court “must stay arbitration where it can conclude, upon examining the parties' contract and the relevant statute, "that the granting of any relief would violate public policy."

In Chautauqua, the Civil Service Employees Association (CSEA) demanded arbitration of grievances concerning layoffs and rights of displacement contained in Section 14.05 of the Collective Bargaining Agreement (CBA).

Section 14.05(a) provided as follows:

(a) For layoff purposes, an employee's seniority shall determine the order to be followed. In a department, the employee with the least seniority shall be the first to be laid off until the total number of employees required to decrease forces shall be reached. When all displacement possibilities are exhausted within the department, the employee shall have the right to displace in other departments.

In contrast, Civil Service Law Section 80, which addresses layoff affecting employees in the competitive class, provides, in relevant part, as follows:

Subdivision (1). Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.

Subdivision (4). Upon the abolition or reduction of positions in the service of a civil division, suspension or demotion shall be made from among employees holding the same or similar positions in the entire department or agency within which such abolition or reduction of positions occurs.

The County, based on the advice provided by the New York State Department of Civil Service, said that there was a conflict between section 14.05 of the CBA and Civil Service Law Section 80 with respect to layoff and refused to implement Section 14.05 of the CBA.*

CSEA demanded arbitration, contending that County violated Section 14.05 of the CBA by refusing to (1) lay off “the employees with the least seniority within a department until the total number of employees required to decrease forces in that Department was reached" and (2) allow "employees to displace employees in other departments after they exhausted displacement rights in their own departments."

Ultimately the County filed a petition pursuant to CPLR Article 75 proceeding seeking a permanent stay of arbitration as to all issues; CSEA opposed the petition and cross-moved to compel arbitration.

Supreme Court agreed with the County that a conflict existed between Civil Service Law and the CBA. Citing Matter of City of Plattsburgh (Local 788 & N.Y. Council 66, Am. Fedn. of State, County & Mun. Empls., AFL-CIO), 108 AD2d 1045, the court ruled that such a conflict was for a court, not an arbitrator, to resolve.** It granted the County's petition, in part, staying arbitration to the extent that CSEA's demands concerned claims or rights on behalf of employees who were in the Competitive Classification under the Civil Service Law. The court, however, concluded that because section 80(4) did not apply to noncompetitive or labor class employees, arbitration was permissible as to them and granted CSEA's cross motion to that extent.***

On an appeal to the Appellate Division unanimously reversed and granted CSEA's cross motion to compel arbitration in its entirety (See 26 AD3d 843) on the rationale that the perceived conflict was "merely theoretical,” concluding that the entire dispute was arbitrable because the statute did not contain " 'clear exclusionary language' " that precluded arbitration.

The Court of Appeals disagreed and modified the Appellate Division’s determination.

The high court said that it agreed with the County’s position that Section 80 first requires municipalities to decide which titles are essential and then protects the senior employees in such titles. In contrast, the County contended that CBA constituted “an impermissible intrusion on this statutory scheme” by protecting specific persons, rather than necessary positions, regardless of the municipality's operational needs or the community's service needs." As it stated in Honeoye Falls-Lima, 49 NY2d at 733, an appointing authority may not surrender through collective bargaining "a responsibility vested in the [appointing authority].” ****

Finding that under the CBA the County would retain no power to decide which positions to eliminate while Section 80(1) clearly indicates “that a public employer has a nondelegable discretion to determine—for reasons of economy, among others—what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public.” Once such an informed decision is made, Section 80(1) controls with respect to respect the seniority rights of its employees.

In the words of the Court of Appeals: “Succinctly put, under the CBA, seniority controls the abolition of positions; under the statute, seniority controls only after the employer decides which positions will be affected. This conflict is plainly irreconcilable.”

As to displacement rights, the court said that the nonarbitrability of this issue is less clear. Although Civil Service Law Section 80(4) provides that "[u]pon the abolition or reduction of positions . . . , suspension or demotion shall be made from among employees holding the same or similar positions in the entire department or agency within which such abolition or reduction of positions occurs," there is no explicit language in this subdivision that can be read to prohibit, in an absolute sense, a public employer from agreeing to permit employees to "bump" less senior employees in another department or division within the same layoff unit.

The court ruled that as public policy precludes arbitration of CSEA's primary grievance as to the layoff of certain employees, the County's petition to stay arbitration is granted. However, as there is no clear public policy precluding arbitration of CSEA's secondary grievance concerning displacement rights, CSEA's cross motion to compel arbitration was granted to that extent.

* The Department of Civil Service had advised the County that a collective bargaining agreement "may not alter the layoff units prescribed by Section 80 (4).”

** In Plattsburgh the collective bargaining agreement provided that in determining seniority in the event of demotions in connection with a layoff the "date hired" was to be used. Section 80 of the Civil Service Law provides that the date of "permanent appointment" controls. The Union sought to arbitrate the alleged contract violation. The City resisted and won an order prohibiting arbitration. The Appellate Division held that Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away. Accordingly, it was required to follow the provisions of Section 80 of the Civil Service Law notwithstanding any Taylor Agreement provision to the contrary.

*** Section 80-a applies to suspension or demotion upon the abolition or reduction of non-competitive class positions in the state service.

**** In Honeoye the issue was the maintenance of adequate classroom standards.
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Court permits tape-recorded statements provided by informants to be admitted into evidence in an administrative disciplinary hearing

Court permits tape-recorded statements provided by informants to be admitted into evidence in an administrative disciplinary hearing
Matter of Safir, 261 AD2d 153

A police officer was dismissed from his position after he was found guilty of conspiring with a “chop shop owner” to have at least one car stolen on his behalf. The evidence presented against the officer consisted of the testimony of the investigating officers and a tape recording containing statements by three informants.

The police officer challenged his termination, contending that the police commissioner’s determination was not supported by substantial evidence. The Appellate Division disagreed, holding that the record made during the disciplinary proceeding contained substantial evidence of the officer's guilt of the charges filed against him.

The court said that the tape-recorded statements, although hearsay, were properly received as part of the evidence against the officer. The decision noted that the reliability of the informants’ statements was corroborated by their internal consistency, by facts disclosed in the investigation and, in part, by the officer’s own testimony.
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Contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate

Contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate
Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc. [Long Beach Unit], 8 NY3d 465

Article V, Section 6 of New York State’s Constitution mandates that appointments and promotions in the civil service of the State and its political subdivisions "shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive."*

Although the Civil Service Law permits provisional appointments to positions in the competitive class, such appointments may be made only when there is no eligible list available for filling a vacancy in a competitive class, and then only for a maximum period of nine months (see Civil Service Law Section 65 [1], [2]).

Further, once a provisional employee has been in a position for one month, a civil service examination for the position must be scheduled and the provisional appointment to the position must end within two months of the date on which an appropriate eligible list is established.**

Finally a provisional appointee may be terminated "at any time without charges preferred, a statement of reasons given or a hearing held" so long as such termination is not for an unlawful reason.

The relevant collective bargaining agreement [CBA] included the following provision:

"Section 6-1.0—Definition of Tenure

"Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 of this Agreement shall be deemed non-tenured.

"Section 6-1.1—Rights of Tenured Employees

"All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced provisional employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee's displacement by a candidate from an eligible list certified by the Civil Service Commission."

In effect, the CBA obviated the provisions of Article V, Section 6 and the provisions of the Civil Service Law adopted to effect “appointment and promotion” in the public service based on merit and fitness and, in effect, gave provisional and temporary employees subject to its provisions almost the same “permanent status” enjoyed by individuals appointed from a open-competitive or promotion eligible list upon their satisfactorily completion of their probationary period.

The City brought this action seeking to stay arbitration on public policy grounds. CSEA answered and cross-moved to compel arbitration.

The Court of Appeals, noting that it “repeatedly held … that a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy,” ruled that here CSEA’s grievance “is not arbitrable because granting the relief sought on behalf of the provisional employees under the so called "tenure" provisions of the CBA would violate the Civil Service Law and public policy.”

Further, noted the court, provisional appointments carry no expectation nor right of tenure. The court, citing Koso v Greene, 260 NY 491, said that provisional employees, while appointed to positions in the competitive class, are “exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by period of tenure under the [Civil Service Law]."

Again quoting from Koso, the Court of Appeals pointed out that “Such appointments ‘are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions’ and ‘[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment.’”

The decision states that “CSEA relies on those portions of the CBA which provide that a provisional appointee is considered a tenured employee after one year of service. The Civil Service Law, however, clearly sets a time limitation on provisional appointments and that period is nine months.” Accordingly, the City’s agreement providing superior rights to provisional employees holding positions beyond that statutory time period is a nullity.

The Court of Appeals conclusion: “the provisions under the CBA are unenforceable as a matter of law” as the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.***

* The concept of selection based on merit and fitness is also applied in situations where it has been determined that a competitive examination is not "practicable." Section 42.1 of the Civil Service Law mandates that appointment to a classified civil service position [other than to positions in the exempt and labor classes] shall be made only "after such non-competitive examination as is prescribed by the State Civil Service Department or municipal commission having jurisdiction."

** There is a narrowly defined exception to this mandate that is only applicable when termination would "disrupt or impair essential public services."

*** Chief Judge Kaye (dissenting in part, in which Judge Ciparick concurred) said that “I agree that, as an arbitrator may not rely on the portion of the CBA that purports to grant tenure to provisional employees after one year of service (section 6.1-0), or on the section that prohibits termination until and unless the City appoints from an eligible list (section 6-1.1 [c]), a stay should be granted with regard to arbitration of section 6.1-0 and the first part of section 6-1.1. I conclude, however, that the second component of the bargained-for section 6-1.1 (c)—that a displaced provisional worker will be transferred into an open position for which he or she is qualified—is arbitrable.”
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