Contingent permanent appointment not automatic

Contingent permanent appointment not automatic

Matter of Snyder, 132 A.D.2d 905, 907, aff'd 72. N.Y.2d 981

When the permanent incumbent of a position is placed on leave of absence for what is expected to be an extended period, the appointing authority often seeks to fill the position. Usually this results in a “temporary” appointment. However, under State Civil Service Commission rules (similar rules have been promulgated by a number of municipal civil service commissions as well), if there is an appropriate eligible list available, the department or agency may elect to fill the position on a “contingent permanent” basis by selecting a person from the eligible list.

Such an appointment may prove to be of some importance as it provides the individual appointed on a contingent permanent basis with all of the rights of a permanent employee, except the right to retain the position in the event the person on leave from the position returns to the position.

Snyder, an Associate Attorney, had been “provisionally appointed” to the title Supervising Attorney, a higher-level position. The supervising attorney position had become available when the permanent Supervising Attorney was placed on leave of absence from the title upon his temporary appointment to a higher-level position – Principal Attorney. About two years later Snyder was reinstated to his permanent, lower grade, Associate Attorney position. The permanent incumbent of the Supervising Attorney position, however, continued to serve “temporarily” in the Principal Attorney position, still on leave from the supervising attorney position.

Snyder sued, arguing that he had become tenured in the supervising attorney position on a “contingent permanent” basis when he was continued in the title for more than nine months. He claimed that he had attained such status automatically solely because he had been qualified to be appointed on a contingent permanent basis. As a result, he said, he could not be “demoted” except as a result of disciplinary action so long as the permanent incumbent of the Supervising Attorney remained on leave of absence from the  position.

Snyder based his claim of tenure on a contingent permanent basis on the fact that the supervising attorney title to which he had been appointed had always been filled by non-competitive promotion from associate attorney in accordance with “§52.6” of the Civil Service Law. As he had been appointed as a permanent Associate Attorney, he contended that his advancement to the supervising attorney position during the leave of absence of the permanent incumbent could only have been effected on a continent permanent basis.

The Department of Civil Service conceded this procedure had been followed in the past and that it did not expect to ever hold a competitive examination for the Supervising Attorney title. Reading §§52.6 and 65.4 together, Snyder contended that he was now tenured in the supervising title on a contingent permanent basis.

§65.4 provides if a person whose name is on an appropriate, nonmandatory eligible list is provisionally appointed to a vacancy, or is continued in such a position on a provisional basis beyond the maximum period of probation, is deemed to have been permanently appointed to the position.

The Commission, in interpreting its Rule concerning contingent permanent appointments, 4 NYCRR 4.11(a), said that making an appointment on a contingent permanent basis was discretionary and that the appointing authority did not have to make such an appointment merely because it was possible to do so. 4 NYCRR §4.11 provides that “a position in state service left temporarily vacant by the leave of absence may be filled on a permanent basis....” In effect, the Commission said that making a contingent permanent appointment requires an affirmative act on the part of the appointing authority to effect such an appointment.

The Appellate Division agreed with the Commission, rejecting Snyder’s theory that §65.4 applied in his case.

Noting that the regulation uses the permissive word “may,” the majority ruled that appointments to temporarily vacant positions do not have to be permanent. The Court said “[o]nce it is established that (Snyder’s) status was solely as a provisional appointee and, therefore governed entirely by Civil Service Law §65, the conclusion becomes inescapable that it could not ripen into that of permanent appointment absent full, literal compliance with all of the conditions for converting a provisional appointment to a permanent one under Civil Service Law §65.4.”

As §65.4 applies only where an examination fails to produce a list adequate to fill all positions then held on a provisional basis or where such a list is exhausted immediately following its establishment, the majority concluded that Snyder could not have attained permanent (or contingent permanent) status as there was no examination or list in his case.
.

School board’s “final ruling” in a grievance reviewable by the courts absent the union’s voluntary waiver of its right to seek judicial review

School board’s “final ruling” in a grievance reviewable by the courts absent the union’s voluntary waiver of its right to seek judicial review

Aloi v. West Babylon Union Free School District, 81 AD2d 874

The Appellate Division ruled that the School Board's reliance on its regulation that provided that its decision in a grievance “shall be final” was misplaced and the regulation in question did not preclude judicial review.

A grievance was submitted by the West Babylon Non-Teaching Unit of the Civil Service Employees Association pursuant to the school board's regulations. The board of education ultimately denied the grievance.

When CSEA appealed, the board of education contended that the courts could not review its “final determination,” pointing out that its regulation provided that "The report of the Board of Education shall be final."

The Appellate Division disagreed, explaining “The regulation cannot preclude judicial review in the absence of a voluntary surrender of the union's right to resort to the courts to enforce the collective bargaining agreement,” citing Matter of Riverdale Fabrics Corp., 306 NY 288.

Further, the court said that the fact that the union submitted the dispute pursuant to the board of education's grievance mechanism did not constitute a waiver of the union's rights to appeal an adverse ruling to the courts. Otherwise, were the union not to avail itself of the administrative remedy provided by the board it might be precluded from seeking judicial review under the “failure exhaustion of administrative remedies” doctrine.

The Appellate Division viewed the school board’s regulation as self-serving  and ruled that it could not preclude CSEA’s further appeal to the Courts.
.

Salary adjustments due firefighters disabled in the line of duty

Firefighter disabled in the line of duty eligible to continue to receive his of her salary

Drahos v. Village of Johnson City, 80 AD2d 100

In Drahos v. Village of Johnson City, 80 AD2d 100, the Appellate Division held that a firefighter injured in the line of duty and unable to return to work, and who is not permanently disabled, is entitled to the payment of his or her regular salary in full until he or she returns to duty* or retires, citing §207-a of the General Municipal Law.

This, according to the opinion, includes increases and adjustments received by firefighters in active status during the period of the disabled firefighter's absence due to his or her injury or disease.

Presumably the same would apply to police officers injured in the line of duty and otherwise eligible for similar benefits pursuant to §207-c of the General Municipal Law.

* Where appropriate, the injured firefighter may be required to return to work to perform "light duty."
.

US Supreme Court declines to review a 9th Circuit holding that the ADEA is the exclusive remedy available to individuals alleging unlawful age discrimination by a California governmental entity

US Supreme Court declines to review a 9th Circuit holding that the ADEA is the exclusive remedy available to individuals alleging unlawful age discrimination by a California governmental entity

Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2013, Meyers Nave. All rights reserved.

Meyer Nave, a law firm, distributed an e-mail stating that there is “Good news for California public employers out of the U.S. Supreme Court today:[October 15, 2013] the high court officially kicked the age bias case of Madigan v. Levin* to the curb, dismissing the matter in a per curiam decision as improvidently granted."

The e-mail reports that “The bottom line for California public employers is that the rule in the U.S. Court of Appeals for the Ninth Circuit under Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009) remains in effect: the Age Discrimination in Employment Act (ADEA) is the exclusive remedy in federal courts for age discrimination claims against state and municipal employers, precluding equal protection claims under 42 U.S.C. §1983.”

Click here to Read the full article online

* Madigan v. Levin, No. 12-872

.

. 

Provisional employee terminated after failing two examinations for the position

Provisional employee terminated after failing two examinations for the position

Matter of the Steuben County Civil Service Commission, 113 Misc 2d 570

Subdivision 4 of §65 of the Civil Service Law provides as that "successive provisional appointments shall not be made to the same position after the expiration of the authorized period of the original provisional appointment to such position; provided, however, that where an examination for a position or group of positions fails to produce a list adequate to fill all positions then held on a provisional basis, or where such list is exhausted immediately following its establishment, a new provisional appointment may be made to any such position remaining unfilled by permanent appointment, and such new provisional appointment may, in the discretion of the appointing authority, be given to a current or former provisional appointee in such position".

When the employee failed two successive examinations for the position he held on a provisional basis, the Steuben County Civil Service Commission invoked its “Two Examination Failure” Rule and refused to approve the employee’s continuation in the position as a provisional provisional.

The Rule provided that no provisional employee who twice failed the test for the position would be given another provisional appointment unless the test failed to produce any qualified eligible or where the list was immediately exhausted. In this case the list consisted of four names, but one candidate refused appointment and a second withdrew his name from consideration.

The Commission successfully argued that further provisional appointment was not permitted because the examination did not fail to produce any qualified candidates and

the list was not exhausted.

Noting that a local commission has the discretion to adopt such a Rule, the Court suggested the employer, who “clearly was under no compulsion” to use the eligible list, would effect the purposes of the Constitution’s merit and fitness provision by appointing one of the two remaining eligibles on a provisional basis to the position.

Of course, the appointing authority could elect to make a permanent appointment from  “two-name list.”

However, if a person on eligible list is appointed to the vacancy provisionally, applying the decision in Roulett v Hempstead Civil Service Commission, 40 AD2d 611,the individual selected would automatically attain permanent status if continued in service beyond the maximum probationary period otherwise required for the position.

In Roulett the Appellate Division ruled that if a person on a nonmandatory eligible list is provisionally appointed to a vacant position, or is continued as a provisional employee after being certified for appointment from a nonmandatory list, he or she will be deemed to have been permanently appointed to the position if continued in service beyond the maximum period of probation

..

An administrative hearing in §50.4 termination proceeding is not required

An administrative hearing in §50.4 termination proceeding is not required

55 NY2d 101

The Wayne County Civil Service Commission disqualified an employee and removed him from his position as police officer with the Village of Palmyra pursuant to §50.4 of the Civil Service Law. The Commission had determined that the police officer had “intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application”. The employee sued, claiming he could not be removed from the position without a hearing.

The Court of Appeals rejected the police officer’s argument, stating that §50.4 “requires no more than that the person be given a written statement of the reasons therefore and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification”. No hearing is required.

The Commission had found that individual had falsified his application with respect to his experience as a police officer and concealed facts related to his separation from previous employment.
.

Denial of access to teacher’s mailbox during "non-challenge period" lawful

Denial of access to teacher’s mailbox during "non-challenge period" lawful

89 AD2d 967, Appeal dismissed, 58 NY2d 823

An individual attempted to obtain access to teacher mailboxes in the face of the District’s policy of granting exclusive access to such mailboxes to the certified or recognized employee representative.

The Appellate Division rejected the individual’s denial of free speech argument on the basis that:

there were many alternatives means available to him to communicate with the teachers and

there was not denial of equal protection, as individual and the Middle Country Teachers Association were not similarly situated and therefore there was no differential treatment.

The Appellate Division also pointed out that the District’s policy was not in operation during the period when the certified or recognized union’s representation status could be challenged (See §208.2, Civil Service Law) and dismissed the appeal.

In many school districts the contract itself provides for “exclusive” rights of access to employees in the negotiating unit, except during the “challenge period”. 
.

State legislature resists providing information requested by the Moreland Commission to the Commission

State legislature resists providing information requested by the Moreland Commission to the Commission

Source: Office of the Moreland Commission

Reacting to the Senate and the Assembly “refusal to cooperate” with the Commission in its efforts “to examine abuse of office by public officials and misconduct while in office,” the Commission issued the following statement:

STATEMENT FROM MORELAND COMMISSION CO-CHAIRS

"Pursuant to the Executive Order, the mandate of the Moreland Commission, among other things, is to examine abuse of office by public officials and misconduct while in office. Our investigation includes examining New York State legislators and their connections to outside business practices.

"On August 27, we requested information to be submitted by certain legislators. Leaders of the legislature for both the Assembly and Senate refused to cooperate.

"The Commission voted today [October 15, 2013] to aggressively move forward in compelling production of information into specific matters that the Commission is investigating.

"The Commission will continue its mandate of investigating corruption, issuing subpoenas, holding public hearings and will issue our first report on December 1."

Co-Chairs
Kathleen Rice
Milton Williams, Jr.
William Fitzpatrick

.

Teacher terminated after being found guilty of filing a fraudulent affidavit to obtain a free New York City education for her non-resident child

Teacher terminated after being found guilty of filing a fraudulent affidavit to obtain a free New York City education for her non-resident child

Matter of the Department of Education of the City of New York, 2013 NY Slip Op 06615, Appellate Division, First Department

A New York City School teacher was served with disciplinary charges pursuant to §3020-a of the Education Law alleging that she had “fraudulently obtained a free New York City public school education for her son during the 2009-2010 school year.”

Finding the teacher guilty of certain charges and specifications filed against her and not withstanding the teacher’s efforts to mitigate the penalty to be imposed by noting her previously “unblemished record as a teacher” and her offering to pay the appropriate tuition for her child’s education, the arbitrator imposed the penalty of termination for her misconduct.

The teacher then filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to have Supreme Court vacate the penalty imposed. Supreme Court sustained the arbitrator's determination and dismissed the teacher's petition.*

The Appellate Division sustained the Supreme Court's ruling, noting the arbitrator’s decision was supported by adequate evidence in the record. Further, said the court the teacher “did not urge the hearing officer to apply a heightened standard in finding fraud.”

The Appellate Division said that under the circumstances “the penalty of termination is not shocking” in view of the teacher’s using “a fraudulent affidavit to obtain a free New York City education for her non-resident child.”

* The Supreme Court's ruling on the teacher's Article 75 petition is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2011/2011_33408.pdf

The Appellate Division’s decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06615.htm

 .

Some important procedural matters in processing disciplinary action

Some important procedural matters in processing disciplinary action

Decisions of the Commissioner of Education, Decision 10894

On occasion a determination by the Court or an administrative body is instructive to non-participants because of the procedural matters it discusses. An example of this is found in Decision 10894 by the Commissioner of Education.

In this appeal involving processing a disciplinary procedure initiated pursuant to §3020-a of the Education Law, the Commissioner dismissed both the appeal by the employer and the cross-appeal filed by the teacher, noting:

     1. The subpoenas duces tecum (produce the papers) served on the District was non-judicial subpoena and it was necessary for the teacher to seek a Court judicial subpoena compelling compliance [see CPLR §2308(b)].

     2. Charges served on the teacher not sufficiently specific to enable the teacher to adequately respond may be dismissed (without prejudice) by the hearing panel chair.

     3. §3020-a procedures are not required to comply with technical rules of evidence and hearsay testimony in such hearings is not improper.

     4. Admissions against interest alleged to have been made by an employee will not satisfy the District’s burden of proof, and due process requires the production of, and the opportunity to cross-examine, a witness who could competently testify to the fact that such a statement was made by the employee in question.

These basic concepts apply in Civil Service Law §75 disciplinary actions and are typically followed in contract disciplinary arbitrations as well.
.

Negotiating on behalf of active employees concerning to benefits available to them following retirement and negotiating on behalf of retired employees distinguished

Negotiating on behalf of active employees concerning to benefits available to them following retirement and negotiating on behalf of retired employees distinguished

Oneida PBA v. City of Oneida, PERB Case U-5805

The Union (PBA) demanded hospitalization benefits which the City contended would apply to retired employees. The PBA reformed its demand, claiming that the benefit improvement would apply only to present employees and that it merely requested that the present health insurance benefits be continued for retired employees.

The City subsequently filed a charge with PERB claiming PBA had applied for arbitration on non-mandatory items of negotiations. When the hearing officer ruled in favor of the City, finding the “revised demand constituted a unitary demand which is nonnegotiable,” PBA appealed. 

PERB affirmed the hearing officer’s ruling, distinguishing between PBA negotiating on behalf of present employees with respect to benefits to be available to them upon their retirement and negotiating on behalf of then retired employees.

PBA, said PERB, had the right to negotiate only for current unit members and retired persons are not “current unit members”

.

.

New York court apply a “two-step test" when determining if a grievance alleging a violation of the collective bargaining agreement may be submitted to arbitration

New York courts apply a “two-step test" when determining if a grievance alleging a violation of the collective bargaining agreement may be submitted to arbitration

Matter of Kenmore-Town of Tonawanda Union Free Sch. Dist. (Ken-Ton School. Employees. Assn.), 2013 NY Slip Op 06490, Appellate Division, Fourth Department

The Kenmore-Town of Tonawanda UFSD [District] filed a petition pursuant to Article 75 of the CPLR seeing a permanent stay of arbitration with respect to a grievance filed challenging the District’s terminating an employee. Supreme Court dismissed the District’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that in determining if a grievance is subject to arbitration under the relevant collective bargaining agreement (CBA), the court applies the “two-step analysis set forth in Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn), 42 NY2d 509”

Step 1 – The court must determine whether there is any statutory, constitutional or public policy prohibition against arbitrating the grievance.

Step 2 – In the event the court determines that there is no such bar to proceeding to arbitration, it then considers whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration.

The CBA in this instance, said the Appellate Division, set out a broad arbitration clause and thus the court’s inquiry is limited to determining “whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA"

The grievance filed with the District questioned whether the District had followed "the procedures mandated by the CBA in terminating the employee in question.” The Appellate Division concluded that Supreme Court “properly determined that the parties had the authority to agree to arbitrate this grievance, and that they in fact agreed to do so.”

As to the District’s argument that the provisions of the CBA “violate public policy and the Civil Service Law,” an issue raised for the first time on appeal, the Appellate Division elected to consider the claim. It ruled that that Civil Service Law §75 "may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter," citing Civil Service Law §76[4].

§76[4], in pertinent part, provides: “… section seventy-five or seventy-six of this … may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter …”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06490.htm

.