A collective bargaining agreement can shorten a statute of limitations for bringing a breach of contract action set by law

A collective bargaining agreement can shorten a statute of limitations for bringing a breach of contract action set by law
Sheriff Officers Assn. Inc. v County of Nassau, 21 Misc 3d 1130(A)

Typically an action for breach of contract is governed by a six-year statute of limitations. Here, however, the COB provides that "the President [of the Association] may initiate a grievance... within one (1) calendar year after the occurrence of the event grieved, provided it does not merely affect an individual." This, said Justice McCarty, “effectively shortens the statutory period set forth in CPLR 213(2) of six years to one year with regard to class action grievances brought by the president of plaintiff union....”

Accordingly, said the court, the period for which damages may be claimed with respect to this action is from one year prior to the filing of the grievance, to the present.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52288.htm

Employee loses claim of unlawful retaliation because of her disability after conceding she lacked the seniority required for transfer

Employee loses claim of unlawful retaliation because of her disability after conceding she lacked the seniority required for transfer
Ruane-Wilkens v Board of Educ. of City of New York, 56 AD3d 648

Maryellen Ruane-Wilkens sued the New York City Board of Education in an effort to recover damages for alleged employment discrimination and retaliation pursuant to Executive Law §296. According to the decision, Ruane-Wilkens suffers from a disability.

When she requested a transfer from Prospect Heights High School to a different school, the transfer was denied because “she did not have enough seniority.” Contending that the number of students in her class was temporarily increased from 25 to 40, and she was assigned to teach another class in retaliation for her filing a transfer request, Ruane-Wilkens filed a complaint alleging unlawful employment discrimination due to her disability pursuant to Executive Law §296, the State’s Human Rights Law.

After noting that it is unlawful to retaliate against an employee because he or she opposed statutorily-forbidden discriminatory practices, the Appellate Division said that in order to make a prima facie showing of retaliation, the employee must show that: (1) he or she participated in a protected activity, (2) the employer was aware of his or her participation in that activity, (3) the employer took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action.

Dismissing Ruane-Wikens’ appeal, the Appellate Division held that she failed to present any evidence that her transfer request was denied due to her disability. Indeed, said the court, “[s]he herself conceded that it was denied because she did not have enough seniority.”

As the record contained no evidence that Ruane-Wikens ever complained about any discrimination, the Appellate Division said that she failed to raise a triable issue of fact as to whether she was engaged in an activity which would have given rise to a cause of action to recover damages for employment discrimination or retaliation. Accordingly, said the court, the Supreme Court properly granted the Board of Education's motion for summary judgment dismissing her complaint.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09062.htm

Governor Cuomo and NYSCOPBA Announce Tentative Contract Agreement

Governor Cuomo and NYSCOPBA Announce Tentative Contract Agreement

Source: Office of the Governor

On June 18, 2012 Governor Andrew M. Cuomo and Donn Rowe, President of the New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA), issued a press release announcing that a contract agreement between the State and the Union representing New York State's correction officers. The agreement is subject to ratification by the members of NYSCOPBA.

The proposed agreement resolves outstanding wage and contractual issues dating to 2009 and follows the pattern of recently negotiated contracts. The contract is tentative pending ratification by NYSCOPBA membership.

NYSCOPBA’s Security Services unit is composed of correction officers and sergeants assigned to prisons in the Department of Corrections and Community Supervision. Members of NYSCOPBA have not had a contract since 2008 and opted out of arbitration for the years 2009 through 2011. The press release reports that "This is the first negotiated agreement between the state and NYSCOPBA since 1999. NYSCOPBA and New York State were unable to agree on a contract for 9 years prior to this proposed agreement." 

Highlights of the agreement, which will require ratification by the NYSCOPBA membership, include:

• Zero percent wage increases for the three years 2011-2013, and 2% increases in 2014 and 2015.

• A $1,000 retention bonus paid out $775 in 2013 and $225 in 2014.

• Deficit Reduction Leave of nine days (unpaid leave).

• One retroactive payment that is scheduled to be paid before the end of the calendar year, “only if possible.”

• Health insurance premium share increase by 6% for both individual and families, making the share 16% for individuals and 31% for dependent premiums.

• Officers will receive layoff protection identical to that provided to other unions in labor agreements negotiated since last year. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.

Probationary employee terminated for alleged misuse of sick leave

Probationary employee terminated for alleged misuse of sick leave
Curcio v New York City Dept. of Education, 55 AD3d 438

The New York City Department of Education dismissed a probationary physical education teacher, Louis Curcio, from his position and simultaneously reemployed him as a tenured teacher under his common branch license.

In response to Curcio’s petition seeking reinstatement as a probationer in his former physical education teacher position Supreme Court, New York County Justice Shirley Werner Kornreich, denied the Department of Education’s motion to dismiss so much of the petition as sought review of the termination of Curcio's probationary employment under his physical education license. Justice Kornreich also reinstated petitioner's physical education license nunc pro tunc*  to May 15, 2006.

The Department appealed. The Appellate Division “unanimously reversed” Justice Kornreich’s reinstating Curcio’s physical education license and dismissed Curcio’s petition challenging his termination.

Curcio had sued the Department for terminating his probationary employment under his physical education license. The Department had dismissed him because of Curcio’s alleged premeditated misuse of sick leave. The Appellate Division said that Curcio petition challenging his dismissal from his probationary employment should have been dismissed as he failed to establish that his termination "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith."

On a related issue, the Appellate Division noted the record shows that Curcio was not given the requisite 60-day statutory notice that his probationary employment was being terminated by the Department.

Typically such a lack of notice would have entitled Curcio to one day's pay for each day the notice was late. Here, however, the court determined that Curcio was not entitled to such payment because after being terminated from his probationary employment, he immediately resumed his duties at the same school and at the same rate of pay under his common branch license under which he was fully tenured.

* Nunc pro tunc [Latin for "now for then"] refers setting an earlier date for the effective date of an order or judgment, giving it a “retroactive” legal effect.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08020.htm

Petitioning for a separate negotiating unit

Petitioning for a separate negotiating unit
Civil Service Employees Association, Inc., Local 1000, and Baldwin Union Free School District, PERB Decision C-5690

CSEA filed a petition seeking to represent Security Aides in a separate unit. The District opposed the petition.

PERB’s Administrative Law Judge found that the Security Aides were most appropriately added to the existing School Monitors and Health Aides unit represented by CSEA. A community of interest was found to exist based upon a similarity in mission, skill level and working conditions. The ALJ rejected CSEA's argument that a conflict of interest was created by CSEA's initiation of litigation that challenged the District's assignment of certain duties to Security Aides instead of School Monitors.

Also rejected was CSEA's argument that a conflict existed because the Security Aides perform a security function. The ALJ noted that the Security Aides are not charged with the primary duty of investigating or reporting the job related misconduct of District employees, but to protect students and District employees from outside intruders. The ALJ placed the position in the existing unit pursuant to New York Convention Center Operating Corp, 27 PERB 3034 (1994), since there was no contractual bar to the placement and adding the position effectuated a de minimus change to the unit.

Appeal dismissed after employee fails to prove efforts to exhaust her administrative remedy would have been an exercise in futility

Appeal dismissed after employee fails to prove efforts to exhaust her administrative remedy would have been an exercise in futility
Amorosano-LePore v Grant, 56 AD3d 663

This decision by the Appellate Division illustrates the importance of exhausting administrative remedies before seeking judicial relief.

Gina Amorosano-LePore filed a CPLR Article 78 petition seeking a review of the City of New Rochelle’s decision to terminate her after she was found guilty of the disciplinary filed against her.

Instead of filling its answer to Amorosano-LePore’s petition, the City asked Supreme Court to dismiss the petition because Amorosano-LePore had failed to exhaust her administrative remedies under the collective bargaining agreement between the City and the Civil Service Employee's Association.

Supreme Court granted the City’s motion and Amorosano-LePore appealed.

The Appellate Division sustained the lower court’s ruling, holding that the evidence demonstrated that Amorosano-LePore failed to avail herself of the available administrative remedies provided in the CBA.

While there are some exceptions to the rule requiring the exhaustion of administrative remedies, such as demonstrating that efforts to avail oneself of the available administrative procedures such as those that are set out in a statute or a collective bargaining agreement would be futile and thus excuse such failure to exhaust those remedies, the court said that in Amorosano-LePore's case she failed to prove that her pursuing her administrative remedies provided by the controlling collective bargaining agreement would have been an exercise in futility.

The court also rejected Amorosano-LePore argument that the City’s officials acted beyond the scope of their authority, noting that this directly related to questions of interpretation, application, and enforcement provisions of the CBA and thus was reviewable under the CBA. Similarly, Amorosano-LePore claim that she was deprived of due process the hearing officer’s conduct also could have been addressed through administrative review as provided for in the collective bargaining agreement.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09073.htm

Employees and retirees covered by a health insurance plan must be advised of changes

Employees and retirees covered by a health insurance plan must be advised of changes

Orth v Wisconsin State Employees Union Council 24 et al, USCA 7^th Circuit, Docket # 07-2778.

A collective bargaining agreement between the employer (Council 24 of the Wisconsin State Employees Union) and the union that represented Mr. Orth prior to his retirement provided for certain changes to the health insurance plan available to employees and retirees. Although the case involved alleged violations of the Taft-Hartley Act and ERISA, it may be instructive to those entities and individuals not subject to these federal acts.

According to the decision, there was a “secret side deal between the union and the employer in this case” regarding certain changes in the health insurance plan. This, said the court, constituted a breach of the plan managers’ fiduciary duty to the plan participants and beneficiaries.

Further, said the Circuit Court, "The plan fiduciaries are to the plan participants and beneficiaries as the union is to the workers it represents;" the union too is a fiduciary, and its duty of fair representation is simply another name for “fiduciary duty” and “just as in the collective bargaining setting, it is a breach of fiduciary duty to change the plan without notice to those affected by the change.”

Without knowledge of their rights under the plan, participants cannot make intelligent decisions with regard to the purchase of private health insurance to replace or supplement their plan benefits. The secret side deal between the union and the employer in this case, said the court, was a breach of the plan managers’ fiduciary duty to the plan participants and beneficiaries.

The decision is posted on the Internet at:

http://www.ca7.uscourts.gov/tmp/HW1FFQKO.pdf

Residence requirements for public officers

Residence requirements for public officers
Informal Opinions of the Attorney General 2008-10

Public Officers Law §3 generally requires that a public officer reside in the political subdivision or municipality in which he or she holds such public office, i.e., the incumbent of a local office “must be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen, or within which the electors electing him [or her] reside, or within which his [or her] official functions are required to be exercised ….”

One of the exceptions to this general rule permits police officers to reside in a county in New York State that is contiguous to the county in which the political subdivision or municipality is located. Police officers are public officers for the purposes of Public Officers Law Section 3. Although not all public employees are public officers, all public officers are public employees.

With respect to police officers, other than police officers employed by the City of New York, POL Section 3.2 provides as follows:

2. Neither the provisions of this section or of any general, special or local law, charter, code, ordinance, resolution, rule or regulation, requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised, shall apply to the appointment of a person as a member of the police force of any political subdivision or municipal corporation of the state if such person resides (a) in the county in which such political subdivision or municipal corporation is located; or (b) in a county within the state contiguous to the county in which such political subdivision or municipal corporation is located; or (c) in a county within the state contiguous to such political subdivision or municipal corporation; or (d) in a county within the state contiguous to a county described in item (c) hereof where the former is less than fifteen miles from such political subdivision or municipal corporation, measured from their respective nearest boundary lines; or (e) in a county within the state contiguous to a county described in item (d) hereof where the former is less than thirty miles from such political subdivision or municipal corporation, measured from their respective nearest boundary lines. [N.B. Subdivision 19 of Section 3 sets out provisions applicable to police officers of the City of New York, i.e., a city of over one million population.]

Is it lawful for a municipality to permit a police officer to reside in a county that is not contiguous with the county in which the municipality is located? No, advised the Attorney General.

According to the Informal Opinion, “Contiguous” as used in Public Officers Law §3.2 means “sharing a border” or “touching.” In this instance the Attorney General said that police officers employed by the City of Syracuse may not live in Oneida County because that Oneida County is not contiguous to Onondaga County.

Failing to observe the mandates of Public Officers Law Section 3.2 could have other adverse consequences. For example, Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to Section 30.1.(d) of the Public Officers Law because O'Connor "ceased to be an inhabitant within the geographical restrictions" set by law. Public Officers Law Section 30.1(d) provides that the public office "shall be vacant" if the officer does not live in the appropriate geographical area.

Although Section 3.2 of the Public Officers Law permits a police officer to reside in the same or a contiguous county in which the political subdivision employing the officer is located, O'Connor had moved to Warren County. Clarkstown is in Rockland County. Warren and Rockland Counties are not contiguous.

In O’Connor v Police Commission of the Town of Clarkstown, [221 A.D.2d 444], the Appellate Division said that there was ample evidence to support the Commission's determination that O'Connor had ceased to be an inhabitant of the geographical area required for members of the Clarkstown Police Department. Accordingly, the Commission's decision terminating O'Connor from his position was neither arbitrary nor capricious.

Another issue involved O'Connor's receiving disability benefits pursuant to Section 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County. Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable."

In a case involving disability benefits under General Municipal Law Section 207-a, which provides firefighters injured on the job with benefits similar to those available to police officers pursuant to Section 207-c, the court decided that Section 207-a benefits were only available to firefighters while they remain members of the fire department. Payments are not made if a disabled firefighter ceases to be an employee of the fire department [Robinson v Cole, 193 Misc.717].

The Appellate Division also rejected O'Connor's claim that he satisfied Section 3.2's residence requirement because he "occasionally stayed" at an in-laws apartment that was within the geographical area."

The Informal Opinion is posted on the Internet at:
http://www.oag.state.ny.us/bureaus/appeals_opinions/opinions/2008/Informal/I%202008-10%20pw.pdf

Procedural matters to satisfy when filing an appeal with the Commissioner of Education

Procedural matters to satisfy when filing an appeal with the Commissioner of Education
Appeal of Carl Stieffenhofer from actions of Donna Pieszala, President of the Board of Education of the Newfane Central School District, Decisions of the Commissioner of Education No. 15,846

Although the Commissioner dismissed Stieffenhofer’s appeal as untimely, he addressed a number of relevant procedural matters that are instructive. The Commissioner pointed out that:

1. A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled … which statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of.”

2. Where the complaint relates to allegedly "illegal" actions taken while the Board was in “executive session,” such matters fall “squarely within the ambit of the Open Meetings Law [and] Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

3. The failure to join as a necessary party is fatal to the petition as a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such, named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Although the Commissioner dismissed the appeal, he did address a motion by Pieszala that he issue her a certificate of good faith pursuant to Education Law §3811(1) thereby authorizing the board to indemnify her for legal fees and expenses incurred in defending this proceeding which arose out of the exercise of her powers or performance of duties as a board member.

The Commissioner ruled that it was appropriate to issue such certification as there was nothing in the record to indicate that Piezala acted in bad faith.

The full text of the decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume48/d15846.htm

Statutory presumption that an individual suffered a disease of the heart as a result of the performance of duty rebutted by medical evidence to the contrary

Statutory presumption that an individual suffered a disease of the heart as a result of the performance of duty rebutted by medical evidence to the contrary
Lawless v DiNapoli, 56 AD3d 1114

A member of the New York State Employees’ Retirement System [NYSERS] applied for performance of duty disability retirement benefits alleging that he was permanently incapacitated as the result of a heart attack he suffered approximately six months earlier. The member filed his application relying upon the statutory presumption contained in Retirement and Social Security Law §507-b(c).

§507-b(c) provides that “…any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member covered by this section, presently employed and who shall have sustained such disability while so employed, who successfully passed a physical examination on entry into service as a correction officer or security hospital treatment assistant, which examination failed to disclose evidence of any disease or other impairment of the heart, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

NYSERS conceded that the individual was permanently incapacitated from the performance of his duties, but decided that his disability was not sustained as a result of the discharge of his duties as a correction officer and rejected his application for line-of-duty disability benefits. The Hearing Officer upheld the denial, concluding that the proof submitted by the Retirement System was sufficient to rebut the statutory "incurred in the line of duty presumption" set out in Retirement and Social Security Law §507-b(c).

The Appellate Division, noting that the Retirement System did not dispute that the member had successfully passed his pre-employment physical or that he is now permanently disabled from performing his duties as a correction officer due to his heart attack and underlying coronary artery disease, said that because the applicant elected to rely upon the statutory presumption contained in §507-b(c), the issue to resolve was whether the Retirement System had rebutted this presumption with competent medical evidence.

The court said that its conclusion, after its review of the record as a whole, was that the Retirement System successfully rebutted the statutory presumption and thus properly rejected the member’s application for benefits.

The full text of the decisions is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09335.htm

The duties and responsibilities of the position control with respect its classification and allocation to a salary grade

The duties and responsibilities of the position control with respect its classification and allocation to a salary grade
Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO v State of New York Unified Court System, 55 AD3d 1070

Following the reallocation of positions previously titled "Hearing Examiner" to “Support Magistrates, JG-31” and the adoption of a new title standard, individual Support Magistrates and the labor union representing them [petitioners], commenced a proceeding seeking to rescind the allocation of the title to JG-31, and place the Support Magistrate title in a higher salary grade -- JG-33. The title change and level of compensation had been determined by the Chief Administrative Judge.

Supreme Court concluded that the classification of the position and its allocation to JG-31 had a rational basis, was not arbitrary and capricious and dismissed the petition. The Appellate Division affirmed Supreme Court’s determination.

In the course of the proceeding the Administrative Director of the Unified Court System submitted an affidavit in support of the classification of the position and the allocation of the title Support Magistrates to JG-31 in which he stated that the allocation of the Support Magistrate title to salary grade JG-31 was based upon the Chief Administrative Judge's finding that duties, responsibilities and functions of Support Magistrates are comparable to those of Court Attorney-Referees. Court Attorney-Referees act as special referees in a number of courts, including Family Court, and are also allocated to grade JG-31.

In addition, the Administrative Director said that “Court Attorney-Referees, when authorized by a Family Court judge and upon consent of the parties, perform the same quasi-judicial functions that Support Magistrates do and in the same court both conduct trials, take evidence and issue orders, including orders of protection.”

Conceding that the reasons underlying the determination, are "facially legal," the petitioners argued that the two titles are not comparable because a Support Magistrate is directly empowered by statute to decide certain issues while a Court Attorney-Referee has no original jurisdiction conferred by statute and the Court Attorney-Referee must be appointed by a court to hear and report or, with the consent of the parties, hear and determine, the issues.

The Appellate Division was not persuaded by the petitioners’ argument, ruling that “the difference in the origin of authority to entertain issues does not contradict [the Chief Administrative Judge’s] conclusion that the duties, responsibilities and functions of the two titles are similar.” In other words, it is the duties and responsibilities of the position that are controlling in classifying the position and allocating it to a salary grade, not the source of the authority that the incumbent of the title exercises.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08043.htm

 

Reports from the Office of the State Comptroller

Reports from the Office of the State Comptroller

For the week of June 11 - 17, 2012

Forensic Audit Reveals Metro–North Employees Were No Shows

Metro–North Railroad employees that were supposed to monitor train conditions and crew performance were not on the job when they were scheduled to work and performed poorly when they were, according to an audit released Friday by New York State Comptroller Thomas P. DiNapoli. Auditors and investigators also found that a relative of a manager was hired at an inflated salary over other more qualified employees, a possible violation of the New York State Public Officers Law.

DiNapoli: State Agencies’ Late Approvals of Contracts with Not–For–Profits Rose to 80 Percent Last Year

State agencies were late more than 80 percent of the time in approving contracts subject to the Prompt Contracting Law with not–for–profit providers last year, according to a report released Thursday by State Comptroller Thomas P. DiNapoli. This prompted interest payments that cost taxpayers nearly $200,000, the report found.

DiNapoli: Auditors Blocked $61.5 Million in Erroneous Workers’ Compensation Payment Requests

Auditors uncovered $61.5 million in erroneous workers’ compensation payment requests, according to a report released Thursday by New York State Comptroller Thomas P. DiNapoli. The 2011 year–end report details errors caused by improper data entry or computation, among other reasons. After discussions with the Comptroller’s Office, the Workers’ Compensation Board made improvements which reduced the improper payment rate by 17 percent in November and December of 2011.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli announced his office completed an audit of the Hoosick Falls Central School District.

Comptroller DiNapoli Releases Municipal Audit

New York State Comptroller Thomas P. DiNapoli announced his office completed an audit of the City of Syracuse.