Absence from an assigned post

Absence from an assigned post
Gamma v City of Newburgh, 277 AD2d 236

Absence from one’s post is a serious matter as former Newburgh police officer Stephen J. Gamma learned.

Gamma was found guilty of charges that he violated both supervisory instructions and the Rules and Regulations of the Department by leaving his duty post without the approval of a superior in his chain of command. As a result, Gamma was terminated.

In response to Gamma’s appeal, the Appellate Division decided that there was substantial evidence in the record to support the hearing officer’s findings. As to the penalty imposed, termination, the court said that [t]the penalty of dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The court said that a police force is a quasi-military organization demanding strict discipline and in matters involving police misconduct, great deference is to be accorded to determinations regarding the appropriate discipline of its members.

Seeking class action relief in arbitrations

Seeking class action relief in arbitrations
Correction Officers Benevolent Association v City of New York, 276 AD2d 394

May an arbitrator grant relief to a class of employees if but a single individual filed the grievance?

This was the critical issue before the Appellate Division, First Department when the Correction Officers Benevolent Association attempted to confirm an arbitration award interpreting a clause in the parties’ collective bargaining agreement between the Association and the City of New York providing for military leave with pay. The City filed a cross motion seeking to have the court rescind the award.

The Appellate Division confirmed the award, holding that the arbitrator did not exceed his authority in awarding class relief.

Why was this a class action? Because, said the court, the request for arbitration, jointly submitted by the parties, expressly framed the proceeding as a Class Action grievance due to the fact that numerous employees represented by the Association were subject to call for military duty and were therefore affected by the manner in which respondents applied the clause in the case of the individual who filed the grievance.

The opinion suggests that the City could have withdrawn the request for class relief, but never did so. Although the issue framed by the parties did not refer to the class aspect of the submission, the remedy sought was expressed in open-ended terms that did not limit the arbitrator’s power to grant any specific relief. As the arbitrator’s interpretation of the clause in dispute was not totally irrational, it was properly confirmed.

CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served

CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served
Matter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third Department

Thomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to §75 of the Civil Service Law. Such charges included alleged acts of misconduct that occurred while Nygard was “off-duty.”

Ultimately the §75 Hearing Officer found Nygard guilty of four of the charges. The Hearing Officer, considering the results in another recent disciplinary matter involving Nygard,* recommended termination as the penalty to be imposed by the appointing authority.

Nathan H. York, the Warren County Sheriff, Nathan H. York, found that the record supported sustaining one additional charge, for a total of five, and terminated Nygard from his position.

Nygard appealed, contending that his “statutory rights” had been violated because his request to adjourn an administrative investigation that ultimately lead to disciplinary charges being filed against him until he could have an attorney present was rejected. Accordingly, Nygard argued, “all information gleaned at the inquiry should have been excluded from the subsequent disciplinary proceeding.”

The Appellate Division disagreed, noting that Civil Service Law §75(2) establishes two different requirements for representation depending on the stage of the administrative disciplinary proceeding.

First, said the court, Subdivision 2 provides that during questioning of an employee who "appears to be a potential subject of disciplinary action," the employee has a right to have a union representative present. If the appointing authority fails or refuses to permit the individual to have his or her union representative present, Subdivision 2 states that the failure to afford this right to the employee bars the use of any statements made, or evidence derived, in the course of the initial questioning in the absence of such representation from being used in the disciplinary hearing.

However, noted the Appellate Division, there is a “second stage” in the disciplinary process addressed in §75(2) that expands the employee’s right to representation to include the right to representation by an attorney** once disciplinary charges have been filed against an individual and a scheduled hearing.

The Appellate Division ruled that in Nygard’s case, the administrative inquiry constituted a “stage one questioning” at which he had a union representative present. Accordingly, said the court, the relevant statutory requirement was satisfied and “the record reveals no violation of proper procedures.”

Nygard also contended that his off-duty conduct was improperly considered as a basis for disciplinary action. The court disposed of this argument by pointing out that “An employee may be disciplined for actions occurring while off-duty, citing Villanueva v Simpson, 69 NY2d 1034.

Finding that substantial evidence supported each of the five disciplinary charges sustained by the Sheriff, the Appellate Division rejected Nygard’s claim that dismissal was too harsh a penalty in this instance, finding that termination was not "so disproportionate as to be shocking to one's sense of fairness."***

Here, said the court, the penalty did not rise to that level given the nature of the charges sustained, “particularly when considered together with the fact" that only a few months earlier [Nygard] had been disciplined for a similar off-duty incident.

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if 1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and 2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

** §75(2) provides that in disciplinary hearing stage of the process, in contrast to investigatory stage of the procedure, the hearing officer shall “upon the request of the person against whom charges are preferred, permit him [or her] to be represented by counsel or by a representative of a recognized or certified employee organization….”

*** The so-called Pell Doctrine, Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09060.htm
.

Eligibility for unemployment insurance

Eligibility for unemployment insurance
Geracitano v Comm. of Labor, 277 AD2d 558

Barbara A. Geracitano served as a seasonal employee with the State Department of Parks and Recreation. She typically would apply for unemployment insurance benefits during her off-season.

Geracitano, however, also served as an elected councilperson and received a salary together with health benefits and the was eligible to participate in the New York State and Local Employees’ Retirement system.

Her application for unemployment benefits was disapproved after the Unemployment Insurance Appeals Board ruled that she was ineligible to receive such benefits because she was not totally unemployed during the time in question.

The Appellate Division sustained the Board’s decision, holding that substantial evidence supports the Board’s ruling.... The court pointed out that in the past it had ruled that a council person was not totally unemployed where the proof showed that he or she received an annual salary for his [or her] work as a council person, performed a variety of duties in that capacity and was subject to inquiries by his [or her] constituents, citing Matter of Silverstein, 236 AD2d 757.

Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged

Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged
Source: Item written by Justin Mason published in the Schenectady Gazette, Tuesday, December 7, 2010

An article appearing in the December 7, 2010 edition of the Schenectady Gazette reports that disciplinary action taken against a state worker, Michael Cunningham, by his employer, Department of Labor, involved evidence obtained by using a Global Positioning System [GPS] device. Ultimately Cunningham was terminated from his position.

New York Civil Liberties Union attorneys, claiming the use of evidence obtained using a GPS device without a warrant or the knowledge of Cunningham constituted an unlawful search, have filed a lawsuit seeking Cunningham’s reinstatement to his former position with back pay and fringe benefits.

The courts have considered a number of cases involving the use of evidence obtained through the use of global positioning system equipment.

In addition, PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining.

In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, the Administrative Law Judge dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology.

The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis.
[See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08].

However, the decision in the Weaver case, People v Weaver, 12 NY3d 433, may have an impact on the use of GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.

The Weaver decision indicates that “In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.*

The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.”

Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.

Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court ruled that such an action, in this instance, was barred by New York State’s Constitution.

The Court noted that Article 1, §12 of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides:

The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.

The Court of Appeals ruled that:

1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.

2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.

The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that “no search occurred” untenable.

The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “

Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”

The Court of Appeals then said that Scott’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.

This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.

In another disciplinary action, Joel I. Klein, then Chancellor of the New York City Department of Education, terminated John Halpin’s employment with the Department after finding Halpin guilty of having left work early on 63 occasions over a four-month period and of having submitted falsified time cards claiming that he worked on those occasions.

When Halpin challenged the Chancellor’s action, the Appellate Division said that the determination was supported by substantial evidence in the record, including global positioning software records, Halpin’s time cards, and eyewitness testimony establishing that Halpin was guilty of the disciplinary charges filed against him [Halpin v Klein, 62 AD3d 403].**

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that under the circumstances terminating Halpin did not constitute an “excessive penalty.”

Although in Halpin's case the GPS record was generated by his Department-issued cell phone, the installation of global positioning equipment in official vehicles is becoming common as well.

* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.

** The administrative disciplinary action underlying the Chancellor's decision was heard by OATH Administrative Law Judge Tynia Richard. Richards found Halpin guilty of the charges filed against him and recommended that he be terminated from his position of Supervisor of Carpenters with the New York City Department of Education. [see New York City Department of Education v Halpin, OATH Index #818/07]. Richard's found that Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The ALJ ruled that the GPS data was accurate and reliable and that its use did not violate Halpin’s privacy rights under the United States Constitution.

Age requirements and eligibility for taking a test

Age requirements and eligibility for taking a test
Beloten v Diamons, 276 AD2d 438

The Beloten case involves a relatively novel issue: age qualification for appointment to positions in the competitive class.

The case arose after New York City issued an announcement for an examination for firefighter allowing only emergency medical technicians and paramedics [EMTs] not more than 29 years old as of the beginning of the application period to take the examination.

Scott R. Beloten and a number of other EMTs took and passed the written test. However they were disqualified and not permitted to take the physical agility portion of the examination because of age: all were more than 29 years of age at the beginning of the application period.*

Beloten objected, contending that the upper age limit for firefighters applies only to candidates for that position taking an open competitive exam, and that to apply the age limit to candidates taking a promotional exam, as [the City] did, would violate Section 54 of the Civil Service Law and anti-discrimination statutes.

The Appellate Division said that two provisions of the Civil Service Law were relevant in resolving this case: Sections 52(1) and 54.

Section 54 allows civil service authorities to adopt reasonable age requirements with respect to open-competitive, entry level positions. Section 52(1) provides for the filling of vacancies by promotion of persons holding positions in lower grades that are in direct line of promotion or, under certain circumstances, from lower grades in related or collateral lines of promotion.

Reading Sections 52(8) and 54 together, the court concluded that age requirements for purposes of taking a promotional exam are prohibited when the promotion would be from a grade that is in direct line, and permitted when the promotion would be from a grade that is in a related or collateral line.

The Appellate Division rejected the theory that this was a promotion situation for the EMTs, ruling that because the position of firefighter is an entry-level position in that there is no direct lower position to be promoted from, the only way a person could become a firefighter was to sit for an open competitive examination.**

Deciding that EMT applicants for the position of firefighter were more akin to entry-level applicants taking an open exam for that position than to a firefighter taking a closed promotion examination for a higher level title, the court ruled that:

... notwithstanding that the exam petitioners took was not open, in that participation was limited to current Fire Department employees having certain emergency medical titles, we conclude that Civil Service Law Section 54 did not apply to prohibit an age requirement, and that Civil Service Law Section 52(8) did apply to require that petitioners satisfy the eligibility requirements for taking the entry-level exam for firefighter, including the requirement in Administrative Code Section 15-103 that they not be more than 29 years old.

* Presumably none of the plaintiffs was eligible for an adjustment to his or her chronological age pursuant to the provisions of Section 243.10-a of the Military Law.

** The EMTs conceded that the examination announcement indicated that their positions were in a collateral, not direct, line of promotion to the position of firefighter.

DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS

DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli today warned of a sweepstakes scam involving fraudulent checks that appear to have been issued by New York State.

“These days many people could use some extra cash; this particular scam is especially shameful because it’s occurring during the holiday season at a time when people can be particularly vulnerable,” DiNapoli said.

“People need to remember that what sounds too good to be true all too often is. No legitimate check from the State of New York would ever be used as part of a mystery shopper program. If you receive one of these fraudulent checks, please report it to the police.”

The fraud works this way: scammers send potential victims a letter telling them that they won hundreds of thousands of dollars in a sweepstakes prize from a “USA Mega” drawing that allegedly took place in August. A company calling itself Alpha Finance Services claims to have been assigned to inform winners of their prize and to pay them off accordingly.

The company’s supposed address is located in Nova Scotia, Canada.

The letter asks individuals to contact a claims agent during daytime hours between Monday and Saturday to “activate” a phony check that has been mailed to them. The "check" included in the letter is counterfeit but looks like a New York State check.

This check allegedly would cover the recipient’s tax liability that is attached to the prize winning.

To activate the phony check, the recipient is directed to send thousands of dollars of their own money to the agent. It even “cautions” recipients of the letter not to act on the notice until they have contacted this claims agent “to avoid cases of misappropriation and mishandling of prize monies.”

Anyone with questions or concerns about this scam should contact local law enforcement officials or the New York State Comptroller’s office toll free at 1-888-OCS-4555.

In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested

In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested
Appeal of Wornum seeking the removal of the Superintendent of the Westbury Union Free School District, Decisions of the Commissioner of Education, Decision #16,166

Larry D. Wornum, than a member of the School Board, asked the Commissioner of Education to remove Constance R. Clark-Snead from her position of Superintendent of the Westbury Union Free School. The Commissioner denied Wornum’s application.

Wornum alleged that that Clark-Snead had engaged in a pattern of “bad acts” including misleading the School Board on a number of occasions, authorizing School District expenditures without board approval; filing an appeal with the Commissioner of Education without School Board approval; and violating the State's Freedom of Information Law and its Open Meetings Law.

As to Wornum's "application in chief," a member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

However, in an appeal to the Commissioner, the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief is placed on the petitioner.

The Commissioner initially addressed a number of procedural issue and determined that:

[1] certain documents submitted by Wornum were not verified as required by 8 NYCRR §275.5(a);

[2] there was no “proof of service’ which precluded his considering such submissions;

[3] he lacked jurisdiction to consider FOIL matters as Public Officers Law §§89 and 107 vest exclusive jurisdiction over complaints alleging violations of FOIL and the Open Meetings Law in State Supreme Court; and

[4] that Wornum’s appeal to the Commissioner was untimely filed with respect to a number of his allegations.

As to Wornum’s surviving allegation – Clark-Snead misled him as to her efforts to secure space for district pre-kindergarten classes – the Commissioner determined that Wornum's allegations "were conclusory" and that Wornum did not provide any documentary evidence to support his charge. Thus, said the Commissioner, Wornum “failed to meet his burden of proof and his claims must be dismissed.”

The Commissioner then addressed Clark-Snead’s request for a Certificate of Good Faith* pursuant to Education Law §3811(1)(c).

Noting that “it is appropriate to issue such Certification unless it is established on the record that [Clark-Snead] had acted in bad faith,” The Commissioner said that as there had been no such finding, Clark-Sneed was entitled to a certificate of good faith.

* A Certificate of Good Faith permit certain school districts or BOCES to reimburse individuals for legal fees and expenses, and where appropriate, damages for which the individual was held liable, incurred in the course of his or her participating in, or resulting from, the individual's appearing in a judicial or quasi-judicial proceeding, including those incurred in, or resulting from, a proceeding before the Commissioner of Education, pursuant to being instructed by a resolution adopted "at a district meeting to defend any action brought against them."

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16166.htm


Other recent decisions of the Commissioner of Education:

Appeal of ARK COMMUNITY CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Troy regarding nursing services. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16169.htm

Appeal of SUSAN ROTH from action of the Board of Education of the South Country Central School District, Montauk Bus Transportation, LLC and Coastal Charter Service Corp. regarding transportation contracts. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16171.htm

Appeal of N.C., on behalf of her daughter V.C., from action of the New York City Department of Education regarding immunization. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16172.htm

Exhausting of Taylor Law contract remedies

Exhausting of Taylor Law contract remedies
Kaufmann v Rochester CSD, App. Div., Fourth Dept., 275 AD2d 890

The Rochester Board of Education attempted to have Susan K. Kaufmann’s lawsuit dismissed on the theory that Kaufmann had not exhausted her administrative remedies because she did not file a contract grievance concerning her complaint.

The Appellate Division, Fourth Department, quickly disposed of the district’s argument by pointing out that Kaufmann did not allege that the district had violated her rights under the collective bargaining agreement but rather she alleged that the district had violated her rights under Section 2585(2) of the Education Law.

Accordingly, said the court, Kaufmann was not required to file a grievance under the collective bargaining agreement concerning her complaint.

Education Law Section 2585(2) addresses situations involving the abolishment of one position and the creation of another position having similar duties and provides that the individual encumbering the abolished position shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been of faithful, competent service in the office or position he has filled.
NYPPL

Responding to Freedom of Information requests

Responding to Freedom of Information requests
McKethan v NY-NJ Port Authority, Appellate Division, First Dept., 277 AD2d 15

William McKethan obtained a court order pursuant to the Freedom of Information Law directing the New York-New Jersey Port Authority [New York Branch] to provide him with certain information. In a subsequent proceeding, State Supreme Court Judge Paula Omansky determined that the Authority had adequately respond[ed] to the court’s prior order. Not satisfied with the court’s determination, McKethan appealed.

The Appellate Division sustained Judge Omansky’s decision, holding that the Authority adequately established the nonexistence of additional records requested by [McKethan].

The reasoning of the court:

Once the Authority’s records access officer certified that respondent had provided McKethan with all responsive documents in its possession, McKethan was required to articulate a demonstrable factual basis to support his contention that the [further] requested documents existed and were within the [Authority’s] control.

Citing Gould v New York City Police Department, 89 NY2d 267, in support of its position, the Appellate Division ruled that McKethan has not met that burden.
NYPPL

Loss of a required license or certification bars the incumbent from performing the duties of the position

Loss of a required license or certification bars the incumbent from performing the duties of the position
Agriculture and Markets v Public Employees Federation, App. Div., Third Dept., 277 AD2d 564

Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?

This was the issue when Sahedou Ousman, an assistant farm products inspector assigned to inspect eggs pursuant to an agreement with the US Department of Agriculture [USDA] lost his Federal egg product inspection license.

According to the decision, Ousman’s license was revoked by the USDA because of his failure to consistently follow instructions, adhere to established procedures and repeated instances of tardiness and unauthorized absences from his place of employment during his normal tour of duty.

Agriculture and Markets [A&M] terminated Ousman’s employment on the grounds that his loss of his license resulted in his being unqualified to perform the duties of an assistant farm products inspector.

A&M, pursuant to an agreement with the Public Employees Federation, Ousman’s collective bargaining representative, subsequently reinstated him. It then placed Ousman on administrative leave and initiated disciplinary action against him under the contract disciplinary procedure set out in a Taylor Law agreement.

The charge: incompetence in that he failed to maintain his Federal egg product inspection license that was required for his continued employment as an egg inspector.

Ultimately an arbitrator ruled that the Federal egg product inspection license was not a prerequisite for the position of an assistant farm products inspector and there were employment opportunities within that title to which Ousman could have been assigned that did not require Federal licensure at that time. The arbitrator’s conclusion: Ousman should not have been terminated.

The arbitrator’s ruling is consistent with the court’s ruling in the Lekkas case [Martin ex rel Lekkas, 86 AD2d 712]. Here the issue concerned Lekkas’ lack of license to practice medicine in New York State although he had been appointed to the position of Assistant Clinical Physician with a State agency. In Lekkas the Appellate Division ruled that although an employee who does not possess a valid license required to perform the duties of the position may be summarily discharged without notice and hearing, it determined that Lekkas was performing administrative duties rather than practicing medicine. Thus, said the court, Lekkas was not required by law to hold a license to practice medicine even though he held the title Assistant Clinical Physician. Accordingly, he could not be summarily removed from the position merely because he was not a licensed physician.

The arbitrator directed A&M to restore Ousman to pay status with all rights and benefits effective July 1, 1997, back pay to be adjusted to reflect any income or unemployment compensation benefits received since that time.

The decision also directed A&M to offer Ousman the next available position within title or, in the alternative, continue him on paid administrative leave and file charges against him based upon his unsatisfactory performance of his duties as a State employee prior to April 15, 1997.

The Appellate Division rejected A&M’s attempt to annul the arbitration award on the grounds that the award was wholly irrational and violated a fundamental public policy regarding civil service appointment requirements and the State’s compelling interest in ensuring a safe food supply to the public.

Noting that the notice of discipline filed by A&M limited the arbitrator’s inquiry to whether Ousman’s loss of his Federal license rendered him unqualified to perform the duties of an assistant farm products inspector warranting his dismissal, the Appellate Division ruled that the arbitrator’s determination did not require A&M to reinstate Ousman to another food inspection position since it allowed it the alternative of continuing Ousman on administrative leave and filing the appropriate disciplinary charge reflecting his general incompetence and lack of qualifications for any position within his title of employment.

The Appellate Division’s conclusion: the arbitration award simply extends to Ousman the protection of the collective bargaining agreement that A&M agrees is applicable and cannot be said to be violative of any strong public policy or the State constitutional mandate that civil service appointments be based on merit.

It is well settled that where a statute requires an individual to have a valid license or certification or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or certification or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.

For example, the courts have little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.

Although such a person may continue to be qualified to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183. The rationale in such cases: it is unlawful to continue a tenured but unlicensed teacher on the payroll as he or she is barred from performing his or her teaching duties and to retain such a person on the payroll as a teacher would constitute an unconstitutional gift of public monies.

There is nothing, however, that would prevent the appointing authority from placing such an individual in another position for which he or she is qualified and for which a license is not required as an alternative to dismissal or removal from the payroll.

Another common situations that result in a bar to continued employment in a position: the expiration, suspension or revocation of a driver’s license when the duties of the position require the incumbent of the position to drive a motor vehicle.
NYPPL

Collective bargaining after the Taylor Law Agreement expires

Collective bargaining after the Taylor Law Agreement expires
Local 2562 v PERB, App. Div., Third Dept., 276 AD2d 184, Motion for leave to appeal denied, 96 NY2d 711

In the Local 2562 case, the Appellate Division sustained a Public Employment Relations Board [PERB] ruling that held that a nonmandatory subject of collective bargaining, if continued after the expiration of a collective bargaining agreement [CBA] under the Triboro Doctrine [Civil Service Law Section 209-a(1)(e)], is converted into a mandatory subject of collective bargaining.

The Triboro Doctrine essentially requires a public employer to continue all terms of an expired collective bargaining agreement -- whether mandatory or nonmandatory subjects -- until the parties reach a new agreement.

Uniform Firefighters Local 2562 [City of Cohoes] appealed a PERB decision holding that certain otherwise nonmandatory proposals made by the City in the course of negotiating a successor to an expired CBA are mandatory subjects of collective bargaining.

Local 2562 sued, contending that PERB’s determinations departed from its prior precedent and redefined what may constitute a mandatory subject of negotiation upon the expiration of a collective bargaining agreement between police officers and firefighters and their municipal employers.

In particular, Local 2562 objected to PERB’s rulings concerning the City’s proposal to delete or alter certain terms in the expired CBA relating to staffing composition and job assignment and the City’s proposal affecting General Municipal Law Section 207-a disability benefits.

Agreeing to the Section 207-a proposal, said the union, would require its members to give up certain statutory rights and privileges. In addition, Local 2562 complained that the City’s staffing proposals concerned officer replacement procedures and the obligation of firefighters to engage in snow removal and were previously viewed as managerial prerogatives deemed nonmandatory subjects of negotiation prior to their inclusion in the parties’ previous CBA.

According to the decision, PERB’s overruling its long-standing precedent meant that once nonmandatory subjects have been incorporated into a CBA involving police officers and firefighters, such items become mandatory subjects of negotiation for the purposes of negotiating a subsequent agreement in a Triboro Doctrine situation.

PERB also ruled that proposals concerning the terms and conditions of employment that would require an employee organization or its members to waive or modify statutory rights and privileges are also mandatorily negotiable, unless bargaining as to those matters is foreclosed by clear legislative intent or public policy.

PERB’s explanation: its new interpretation corrects an imbalance resulting from the enactment of Section 209-a(1)(e) of the Taylor Law which codified the so-called Triboro Doctrine.

The Appellate Division said that PERB provided “a detailed explanation for its decision to depart from its previous analysis on the ground that it intended to create a more equal bargaining posture between the parties in order to foster productive negotiation....”

Accordingly, said the court, recognizing the deference to which PERB’s determinations are entitled in the realm of improper labor practices, it found that its action was neither arbitrary nor irrational.

As to PERB’s determining the negotiability of proposals alleged to flow from a statutory right or benefit, in the past PERB automatically categorized such proposals as nonmandatory without analysis of whether negotiations concerning particular proposals would be consistent with the applicable statute’s legislative intent, public policy, or the furtherance of the objectives of the Taylor Law. Under its new policy, PERB would consider such demands on a case-by-case basis.

The Appellate Division said that PERB’s approach -- reviewing each such proposal case-by-case -- appears to be substantially the same as the method used to determine whether proposals of employee organizations that implicate the rights of public employers are mandatorily negotiable.

The court rejected Local 2562’s argument that by requiring that proposals relating to the waiver of statutory rights be subject to negotiation, PERB is effectuating the involuntary waiver of those rights. It said that although the Taylor Law clearly provides that the obligation to negotiate concerning terms and conditions of employment it does not compel either party to agree to a proposal or require the making of a concession.

The bottom line: the court affirmed the Supreme Court’s dismissal of Local 2562’s challenge to PERB’s determinations, indicating that they were neither arbitrary, capricious, an abuse of discretion nor affected by an error of law.
NYPPL