Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law

Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law
Matter of Schoonmaker v Capital Region Bd. of Coop. Educ. Servs., 2011 NY Slip Op 00142, Appellate Division, Third Department

Karen Schoonmaker was employed full time as a Senior Keyboard Specialist by Capital Region Board of Cooperative Educational Services (BOCES). When Schoonmaker division's workload was reduced, BOCES reduced her hours to 75% of full time and her wages was decreased correspondingly.

Alleging that BOCES violated her rights under Civil Service Law §80 by reducing her hours and salary but not reducing the hours of Senior Keyboard Specialists with less seniority, Schoonmaker sued. Holding that BOCES did not violate the statute, Supreme Court dismissed her petition and the Appellate Division sustained the lower court’s determination.

The Appellate Division explained that BOCES did not violate Civil Service Law §80 when it reduced Schoonmaker’s hours, despite her seniority. The issue a question of pure statutory interpretation and as the statutory text is unambiguous, the court was required to give "effect to its plain meaning."

§80 of the Civil Service Law, entitled "[s]uspension or demotion," provides that "[w]here, 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 . . . among incumbents [in the same governmental jurisdiction] holding the same or similar positions shall be made in the inverse order of original appointment."

As Schoonmaker’s hours were reduced due to economy, abolition of functions or curtailment of activities, the question becomes whether the reduction in hours and corresponding effect on Schoonmaker’s overall income equate to her position being "abolished or reduced in rank or salary grade."

The Appellate Division held that in this instance the answer was no.

The court explained that while conversion of a full-time position to part time has been considered as an abolition of the full-time position, citing Linney v City of Plattsburgh, 49 AD3d 1020, the local civil service rules in Albany County — which apply to BOCES employees — define part-time employment as a person working 50% or less or earning not more than half of the rate assigned if the position was allocated to a graded salary schedule.

Under those rules, said the court, Schoonmaker’s position remained full time and was not converted to a part-time position. Hence, concluded the court, her "full-time position" had not been abolished.

Also noted by the court that “Had the Legislature intended to require that governmental employers suspend or demote employees in the inverse order of appointment when a position was "abolished or reduced in rank[,] salary grade" or hours, those additional words could have been included in the statute.”

However, when the Legislature attempted to add to the statute by requiring inverse-seniority demotion or suspension when an employer reduced its employees' work hours, the Governor vetoed the bill (see 2003 NY Assembly Bill 8399).

Rejecting Schoonmaker’s policy arguments that its decision will create a slippery slope, allowing governmental entities to reduce a senior employee's hours as punishment or to benefit favored less-senior employees, the Appellate Division pointed out that public employees in New York “are currently protected by the law and may bring an action against an employer if they suffer adverse employment actions based upon decisions rendered in bad faith.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00142.htm

Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law

Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law
Matter of Witkowich v SUNY Alfred State Coll. of Ceramics, 2011 NY Slip Op 00454, Appellate Division, Third Department

Three months after Kenneth Witkowich began serving as the Chief of University Police for Alfred State College he was terminated. A day later, he filed an application for workers' compensation benefits, claiming that in the days immediately prior to his termination he had suffered a "recurrence of posttraumatic stress disorder, [irritable bowel syndrome and] anxiety" — or, a panic attack. He subsequently filed a second claim, alleging that the manner in which he was informed of his termination exacerbated his preexisting psychological conditions.

A Workers' Compensation Law Judge [WCLJ] denied both applications, concluding that Workers' Compensation Law §2(7) barred them. A Workers' Compensation Board panel affirmed that decision, finding that Witkowich’s injuries were not compensable.

In deciding the merits of Witkowich’s appeal, the Appellate Division said that a mental injury, even if job related, is not compensable if it is "a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer," citing Workers' Compensation Law §2[7].

Addressing Witkowich’s claim that the stress he encountered as Chief of Police prompted an exacerbation of a preexisting mental condition that, in turn, caused him to have a panic attack, the Appellate Division said that such a claim will not "be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment."

The court noted that no evidence was introduced at the workers’ compensation hearings that Witkowich’s position as Chief of Police was extraordinarily stressful or that the injuries he claimed to have sustained were caused by conditions that existed in the work place.

The Appellate Division dismissed Witkowich’s challenge to the Board’s determination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00454.htm

Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list

Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list
Paolini v Nassau County, Supreme Court, Justice Winick, [Not selected for publication in the Official Reports]

The fact that an individual passes an examination does not give him or her any right to demand that he or she be appointed from the eligible list. The Paolini case involved such a demand, however.

A number of individuals serving as Social Welfare Examiner I with the Nassau County Department of Social Services had taken and passed the competitive promotion examination for Social Welfare Examiner II, Examination Number 71-299. Although the list had been established effective May 13, 1996, no appointments had been made from it.

The list had been extended in 1997, and again in 1998 and in 1999. However, it was due to expire in accordance with the provisions of Section 56(1) of the Civil Service Law. Section 56(1), subject to certain exceptions not relevant in this case, provides that the maximum life of an eligible list is four years from the date of promulgation.

Although Paolini did not claim that the Commissioner of the Department of Social Welfare took any steps to promote anyone on the eligible list, nor that any funds were approved to pay for promotions, he asked to the court to:

1. Extend the eligible list beyond May 13, 2000; and

2. Order the department to promote each petitioner to the position of Social Welfare Examiner II from the eligible list number 71-299 and pay them retroactive to the date on which they each first became eligible for promotion to date, with interest.

Paolini contended that a November 17, 1992 decision by State Supreme Court Justice Lockman -- Livingston v Nassau County Civil Service Commission, [Index 14457-92, not selected for publication in the Official Reports] -- was a precedent for this relief.

In Livingston the employer, the Fire Commission, met on September 5, 1991 and actually made a number of promotions from the eligible list. The minutes of the meeting indicated the appointments were approved. In addition, the salaries for these appointments were included in the County budget but the paperwork had not been processed because of a fiscal crisis. Judge Lockman ruled that the paperwork was a ministerial act, and directed that Livingston be compensated at the higher salaries retroactive to September 5, 1991.

Such was not the case with respect to any claimed action to promote the Paolini plaintiffs to a higher-grade position. Paolini conceded that the Department took no steps to effectuate the promotions nor was there any evidence of any communication to the County Executive or approval of the legislative body to make any such appointment.

Holding that the facts in Paolini were clearly distinguishable from the facts in the Livingston case, the court said that [o]ther than holding the test, no steps had been taken to promote anyone to Social Welfare Examiner II.

Finally, the court said that there is no proof that any monies were appropriated for higher salaries or that the higher-grade positions were budgeted at the time the Paolini plaintiffs passed the Civil Service test, as was the case in Livingston.

Accordingly, said the court, here there was more than a ministerial act required to effectuate the promotions -- and such required actions were not shown to have been taken by the county.

The court dismissed Paolini’s petition, noting a number of other procedural defects that otherwise would bar its granting any relief in this case.

1. There was no prior determination by an administrative body, a prerequisite for bringing an Article 78 proceeding. The administrative remedies must be exhausted with a final determination for the court to review.

2. This was no decision by the Civil Service Commission to review and it is not within the court’s power to usurp the ability of an administrative agency to make such determinations.

3. There was no Notice of Claim filed with the county as required by Section 58-e of the General Municipal Law.

When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition

When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition
Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425, Appellate Division, First Department

Dismissing an Article 78 petition seeking one form of relief does not necessarily mean that that portion of the petition seeking other relief must be dismissed as well.

Janice A. Donoghue, a teacher employed by the New York City Department of Education, asked to be granted tenure as an earth science teacher as of September 1, 2005. When the New York City Department of Education failed to act, Donoghue filed an Article 78 petition. Although Supreme Court granted the Department’s motion to dismiss her petition, the Appellate Division reversed the lower court ruling “on the law and in the exercise of discretion.” And reinstated the petition.

Nor, said the court, is Donoghue’s appeal “moot,” since Donoghue has not obtained all of the relief she sought.

The Appellate Division explained that an Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act.

The decision indicates that although Donoghue had asked the Department to retroactively grant her tenure in earth science, the Department had failed to act on her request.

Addressing the question “Is Donoghue’s action barred by the statute of limitations?”-- the Appellate Division said that Donoghue’s Article 78 petition was in the nature of a prayer for “mandamus relief.”

In such an action the petitioner is required to make a demand and await a refusal before the matter is ripe for possible litigation. Significantly, statute of limitations does not commence to run “until the refusal" is served on the individual or his or her attorney.*

Thus, said the court, “[i]f there is no refusal, the limitations period does not begin to run.”

Considering another procedural issue, the Appellate Division noted that Donohue’s request was not made within the four-months required. However the court, in an “exercise” of its discretion determined that the proceeding was not barred by laches because "[i]f a petition and answer ‘can be construed as the necessary demand and refusal’ [Donoghue’s] pre-petition demand should not be deemed untimely.”

* As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00425.htm

Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid

Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid
Matter of Falkouski v City of Rensselaer Fire Dept., 2011 NY Slip Op 00446, Appellate Division, Third Department

A City of Rensselaer part-time paid assistant fire chief also served as a member of a City of Rensselaer volunteer fire company. He died after suffering a ruptured cerebral aneurysm while at a fire.

His surviving spouse, Susan Falkouski, filed claims under both the Workers' Compensation Law and the Volunteer Firefighters' Benefit Law.



Although a Workers' Compensation Law Judge found that the fassistant cheif’s death was causally related to his volunteer firefighter duties, the Workers' Compensation Board reversed, finding that he had died while working in his capacity as an assistant fire chief.

Accordingly the Board ruled that the Workers' Compensation Law, rather than the Volunteer Firefighters’ Benefit Law, controlled insofar as Mrs. Falkouski’s claims for benefits were concerned.

Mrs. Falkouski’s late husband, as an assistant fire chief, received biweekly pay and took on responsibilities beyond those of a volunteer firefighter such as carrying a City-supplied pager and he was obligated to respond to all fires. Further, said the court, “there was evidence that his duties as assistant fire chief required him to supervise volunteer fire companies responding to the scene of a fire, he wore a different color hat indicating his supervisory role and he was acting in such capacity at the time of the subject fire.”

Under these circumstances, the Appellate Division sustained the Board’s determination, ruling that substantial evidence supports the Board's determination that, at the time of his death, Mrs. Falkouski’s late husband was engaged in work as an employee in his paid position as an assistant fire chief.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00446.htm

The State Commissioner of Education lacks jurisdiction to consider an appeal involving the non-renewal of the charter of a Charter School

The State Commissioner of Education lacks jurisdiction to consider an appeal involving the non-renewal of the charter of a Charter School
Appeal of Ross Global Academy Charter School regarding the nonrenewal of its charter. Decisions of the Commissioner of Education, Decision #16,194

The New York City Chancellor of Education, as a charter entity pursuant to Education Law §2851(3)(a), entered into a proposed charter agreement with Ross Global Academy Charter School [RGACS] for the operation of a charter school for five years. The proposed charter agreement was submitted to the New York State Board of Regents, which approved and issued it in January 2006.

In 2010, RGACS submitted an application to the Chancellor for the renewal of its charter for an additional five years, but was advised by the Chancellor’s staff in December 2010 that its charter would not be renewed by the Chancellor beyond the end of the 2010-2011 school year.

RGACS appealed, contending that the Chancellor and his staff [1] failed to follow appropriate policies and procedures in making the nonrenewal decision; [2] that it was treated differently than other allegedly “similarly situated” charter school; and [3] that its charter should be renewed.

The Commissioner dismissed RGACS’ appeal “for lack of jurisdiction.” The Commissioner said that Education Law §2852(6) provides that, “[n]otwithstanding any provision of law to the contrary,” the denial of an application for a charter school by a charter entity “is final and shall not be reviewable in any court or by any administrative body.”

The Commissioner explained that as the appeal submitted by RGACS is an administrative proceeding that challenges the denial of an application for a charter school, he lacks jurisdiction to consider it “Because the legislature has proscribed administrative review….”

The Commissioner rejected RGACS’ argument that Education Law §2852(6) is not applicable because it applies only to the denial of an initial charter application and not, as here, to an application for the renewal of an existing charter school, noting that “Education Law §2851(4) provides, in pertinent part, that “[c]harters may be renewed, upon application, for a term of up to five years in accordance with the provisions of this article for the issuance of such charters pursuant to section twenty-eight hundred fifty-two of this article”

As to RGACS’ claim that the Regents was the ultimate authority with respect to ruling on its application for renewal, the Commissioner said that “it is the charter entity (in this case, the Chancellor) that has the ultimate authority to deny an application for a charter school’s renewal.”* The Commissioner said that the Board of Regents "does not have the ability" to reject or veto a “recommendation” of another charter entity or modify a proposed charter submitted by such entity, citing Bd. of Educ. of the Roosevelt UFSD., et al. v. Bd. of Trustees of the State University of New York, et al., 282 AD2d 166).

* The Commissioner noted that although the Chancellor’s staff prepared a report and submitted it to the Board of Regents in this matter with a “recommendation” that RGACS’ charter not be renewed beyond the 2010-2011 school year, this submission was not required by law and is without consequence to the chartering process.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16194.htm

Family Medical Leave Act and the Doctrine of Eleventh Amendment Immunity

Family Medical Leave Act and the Doctrine of Eleventh Amendment Immunity
Lambert v NYS Office of Mental Health, USDC, EDNY, Judge Gleeson, 97-CV-1347

Efforts by state employees to challenge alleged violations of federal civil rights and other laws have be rejected by federal courts under the doctrine of Eleventh Amendment Immunity. In the Lambert case, a federal district court dismissed claims alleging that the State’s Office of Mental Health [OMH] violated the Family Medical Leave Act on the basis of Eleventh Amendment Immunity.

Patricia Lambert had requested leave pursuant to the Family and Medical Leave Act of 1993 [FMLA], 29 USC Section 2601 on December 16, 1994. She provided medical documentation in support of her request.

While her FMLA request was pending, she used sick leave, personal time, and vacation time to cover her absences from work. OMH, Lambert claimed, (1) found her to be her eligible for FMLA benefits on February 1995 but (2) terminated her in March 1995.

The court never reached the merits of Lambert’s allegations, holding that [s]ince Lambert’s FMLA claim against the Office of Mental Health is predicated on a request for leave involving her own health condition (in contrast, for example, to a request for leave for the birth of a child), it is barred by the Eleventh Amendment.

The court cited Hale v Mann, 219 F.3d 61, 67, decided by the U.S. Court of Appeals, Second Circuit, as authority for its determination.

In Hale the Circuit Court said that FMLA’s abrogation of states’ sovereign immunity to suits regarding employees’ own health conditions exceeded Congress’s power under the Fourteenth Amendment.

Judge Gleeson also commented that Lambert’s FMLA claim against the individual defendants was inappropriate, noting a decision by the Eleventh Circuit holding that individual state officers are not employers within the meaning of the FMLA [Wascura v Carver, 169 F.3d 683].

Limiting the selection of arbitrators

Limiting the selection of arbitrators
Suffolk County PBA v Suffolk County, 273 AD2d 222

Suffolk County adopted a resolution [Resolution 377-1998] barring arbitrators who have served in labor disputes involving Nassau County within the preceding three years to serve in disputes under collective bargaining agreements voluntarily submitted to arbitration or in binding arbitration.

Suffolk County PBA challenged the resolution, contending that it violated both the terms of a collective bargaining agreement [CBA] between it and the county and the Taylor Law. State Supreme Court Judge Jack J. Cannavo, agreed and ruled that the resolution was invalid.

The county appealed and the Appellate Division overturned the lower court’s decision. The Appellate Division held that the CBA and the Suffolk County Administrative Code, which was substantially equivalent to the Taylor Law, both contained binding arbitration provisions permitting Suffolk County to select arbitrators at its own discretion.

Pointing out that the county could exercise its discretion in selecting arbitrators, the Appellate Division declared that the PBA lacks standing to assert that the resolution is arbitrary or capricious, or that the Suffolk County Legislature did not possess the authority to determine how Suffolk County should select its arbitrators.

The court also commented that in contrast to the PBA’s contention, the resolution did not prohibit an arbitrator from making comparisons between Nassau and Suffolk County to determine arbitration issues.

State Comptroller DiNapoli proposes legislation providing for the forfeiture of pension benefits of members guilty of “Abuse of Public Trust”

State Comptroller DiNapoli proposes legislation providing for the forfeiture of pension benefits of members guilty of “Abuse of Public Trust”
Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli has proposed the introduction of legislation providing for the forfeiture of pension benefits* if certain members of the System are found guilty of committing a felony related to the performance of their official duties.

DiNapoli’s bill also imposes a penalty up to twice the amount a public official benefited from the commission of a crime committed in the course of his or her performace [or presumably, an ommission] of his or her public duty.

DiNapoli, noting State Constitution’s prohibitions against any diminishment of retirement benefits for current public officials and public servants, indicated that the pension forfeiture provisions in the proposed bill would apply only to indiviuals becoming members of the Retirement System after the measure's effective date.

The proposed bill is posted on the Internet at:
http://osc.state.ny.us/press/releases/jan11/forfeiture.pdf.

As to the issue of a public officer or employee forfeiting retirement benefits under certain conditions, in Castro v Safir, 291 A.D.2d 212** the basic issue concerned the fallout of New York City police officer Antonio Castro's dismissal prior to the effective date of his retirement. If he was so lawfully dismissed, any pension benefits to which he would otherwise be entitled would be forfeited pursuant to Section 13-173.1 of the New York City Administrative Code.***

Section 13-173.1 requires an employee 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.

Castro was terminated from his position following a "second arrest." As a result he became ineligible for the ordinary disability retirement benefits for which he had applied. He sued, contending that the Department had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had previously found Castro eligible for ordinary disability retirement.

According to the decision, Castro was terminated 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 pension benefits as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.

This conclusion by the Appellate Division appears to parallel the Court of Appeals holding in its Waldeck and Barbaro rulings wherein the Court of Appeals said that Section 13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits. [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 respective 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 mean 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 authority, 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.

* If enacted into law, this presumably could result in the forfeiture of the pension portion of the individual's retirement allowance but that portion of the individual's retirement allowance attributed to his or her "employee contributions" would be refunded.

** See, also, Cipolla v. Kelly 26 A.D.3d 171, wherein the court held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [the individual’s] termination was in bad faith.”

*** As a police officer, Castro was a "public officer." He was also a public employee, as although not all public employees are public officers, all public officers are public employees.

Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing

Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing
Matter of Toolasprashad v Kelly, 2011 NY Slip Op 00419, Appellate Division, First Department

The Toolasprashad decision demonstrates that evidence that the accused individual was properly served with the notice a scheduled disciplinary hearing may become a critical element in the proceeding.

Rudranu Toolasprashad was terminated from his position following a disciplinary hearing that was held notwithstanding his failing to appear at the designated time and place.

Toolasprashad filed a petition seeking to annul his dismissal, which Supreme Court granted “to the extent of remanding the matter to respondents for a full hearing on proper notice to [Toolasprashad].” The Appellate Division affirmed the Supreme Court’s decision.

The Appellate Division noted that the hearing officer found that Toolasprashad failed to appear for the hearing was without good cause, this finding was based on the Department representation that had made “diligent efforts to serve [Toolasprashad] with the charges against him and to notify him of the hearing and that [Toolasprashad] had not provided proper contact information in Peru, where he was on leave.”

While this may have otherwise been sufficient, the court said that the record indicated that “the sole evidence of [the Department’s] attempted service in Lima was counsel's hearsay representations.”

Accordingly, the Appellate Division ruled that the hearing officer’s determination that Toolasprashad’s failure to appear “was without good cause” lacked the requisite proof, citing People ex rel. Griffin v Walters, 83 AD2d 618.

Although the Department argued that “the technical rules of evidence need not be complied with in disciplinary proceedings before administrative bodies,” the court said that the deficiency in the proof of the Department’s efforts to effect service in Lima “goes beyond the lack of technical compliance.”

The court also called attention to the Rules of City of New York Police Department (38 RCNY) §15-03 which, in pertinent part, required that "[s]ervice of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the respondent" and that "[a]ppropriate proof of service shall be required."

Thus, concluded the Appellate Division, the Department failed to comply with its own stated obligation to provide Toolasprashad with the required notice of the time and place of the disciplinary hearing. Accordingly, said the court, the hearing officer’s decision to go forward with the disciplinary hearing in Toolasprashad's absence was arbitrary and capricious.

The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted." Unlike the issue in Toolasprashad, i.e., was the accused employee properly served, in Mari the Appellate Division pointed out that “[Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."

The Toolasprashad decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00419.htm

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Constitutionally protected speech

Constitutionally protected speech
Bradley v. James USCA, 8th Circuit, 2007 U.S. App. Lexis 4781

In the course of an official investigation of an incident involving students in possession of firearms, Arch Bradley, a police captain, alleged that his chief of police chief, Larry James, was intoxicated while on duty at the time of the incident. As a result, Bradley was terminated from his position.*

Bradley sued, claiming that his speech was protected by the First Amendment and thus his termination was unconstitutional.

The Circuit Court disagreed; holding that Bradley’s statement concerning Chief James’ alleged intoxication was made in the context of his official duties – in the course of an official investigation of a law enforcement incident -- and therefore not constitutionally protected.

The legal issue, said the court, is essentially “did the employee speak as a citizen on a matter of public concern?” If the answer to the question is no, the employee does not have a First Amendment cause of action as a result of his or her employer’s taking adverse personnel action against the employee because of the speech.

Here, said the court, Bradley’s speech was made “pursuant to [his] official responsibilities.” As a police officer, Bradley had an official responsibility to cooperate with the investigation incident. His allegation that Chief James was intoxicated when the student incident occurred was made at no other time than during the subsequent investigation of that event. Thus, ruled the Circuit Court, Bradley’s speech was uttered in the course of his performing his official and professional duties. Accordingly, it was not constitutionally protected speech for the purposes of his First Amendment claim.

The Circuit Court affirmed the federal district court’s dismissal of Bradley’s complaint.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/protected-speech.html

* Bradley was sent a letter that included the following statements: “Your inaction on February 6th and your unsubstantiated comments about Chief James are both terminable offenses.” The letter offered Bradley the opportunity to retire or be terminated. Bradley did not respond. Bradley was then sent a letter dismissing him from his position for “deliberate or gross neglect of duty” during the incident. Bradley’s allegation that Chief James was intoxicated at the time of the incident was not mentioned in the letter.

California’s Supreme Court confirms longstanding California rule concerning employee layoffs

California’s Supreme Court confirms longstanding California rule concerning employee layoffs
IAFF, Local 188 vs. Public Employment Relations Board [City of Richmond (Real Party in Interest),] California Supreme Court No. S172377

Source: Meyers Nave PLC. -- The Public Blog, posted at http://www.publiclawnews.com/public_law_news/2011/01/ -- Reproduced with permission. Copyright © 2011, Meyers Nave. All rights reserved

"On Monday, January 24, 2011, the California Supreme Court issued an opinion regarding an employer's duty to bargain under the Meyers-Milias-Brown Act ("MMBA") in connection with layoffs. The opinion was authored by Acting Chief Justice Kennard, with a concurring and dissenting opinion filed by Justice Baxter.

"The Bottom Line: The Supreme Court simply affirmed a longstanding rule - that there is no duty to bargain over an employer's decision to layoff, but there is a duty to bargain over the implementation and effects of the decision. This has been the ongoing advice of labor attorneys for years. There is no new law in this decision that should cause public employers to change their practices.

"Discussion: Since approximately 1974, it has been the rule in California that public employers need not negotiate with labor unions about the decision to initiate layoffs. However, public employers must negotiate concerning the effects or impacts of the layoffs. The City of Richmond observed this advice in connection with firefighter layoffs, and the Fire Union claimed that the failure to negotiate constituted an unfair practice under the MMBA.

"This case affirms the rule. The Court expressly states: "We now reaffirm this rule. Under the MMBA, a local public entity that is faced with a decline in revenues or other financial adversity may unilaterally decide to lay off some of its employees to reduce its labor costs. In this situation, a public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." (Op. at 19.)

"One additional aspect of the opinion is to define the criteria for permitting review of a decision by the [California] Public Employment Relations Board ("PERB"). The Court agreed with the court of appeal that when PERB refuses to issue a complaint under the MMBA, a superior court may review the decision by mandamus. The review is limited to determining "whether PERB's decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction."

"Justice Baxter dissented from this portion of the opinion.

"For more information about this case or other labor and employment matters, contact Art Hartinger at 800.464.3559."