Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Decisions of the Commissioner of Education, Decision No. 16,917

Mary Farber-Peck challenged the Herkimer Central School District's Board of Education's decision to abolish the position in which she had been serving and assign the courses previously taught by her in that positition to other teachers in the school district.

Farber-Peck was initially appointed as a teacher of business and distributive education and subsequently granted tenure in the business education tenure area.*  The Board voted to abolish two positions in the business education tenure area. Presumably, Farber-Peck was one of the two least senior teachers in that tenure area. Accordingly, she was "excessed" and  her name was placed on a “preferred eligibility list.” as the result of the Board's action. 

Subsequently the Board assigned certain courses previously taught by Farber-Peck to three other teachers, Michelle Ploss, Kristin Smith and Glen Manning. 

Farber-Peck appealed the Board's action to the Commissioner of Education, alleging that the Board had “improperly abolished her position to circumvent her tenure and seniority rights.”  She also alleged that during the 2011-2012 school year, teachers were improperly assigned to teach certain business education courses, previously taught by her, outside of their respective certification areas. 

The District argued that  Farber-Peck has not met her burden of proving that it improperly abolished her position; that its assignment of certain courses previously taught by her to other teachers was permissible and that no new position has been created to which she has any clear legal right. 

The District also asserted that certain necessary parties were not joined in the action and thus Farber-Peck's appeal must be dismissed.

Clearly, 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, which requires that the individual be clearly 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.

Here, however, the Commissioner said that with respect to such "other parties" there is “no evidence that Ploss, Smith or Manning would be adversely affected should [Farber-Peck] prevail herein because such a result would impact only one course in their overall workload.” Further, said the Commissioner, Farber-Peck does not seek dismissal or reassignment of those teachers and there is no evidence that the employment status of those individuals would be adversely affected.  Accordingly, ruled the Commissioner, the three were not necessary parties and need not be joined as respondents and the appeal would not be dismissed on that procedural basis.

Turning to the merits of Farber-Peck’s appeal, the Commissioner said that a board of education may abolish and, or, consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith. Further, in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief he or she requested and the burden of establishing the facts upon which he or she seeks relief.

The record before the Commissioner indicated that, at a budget information meeting, the Board discussed the difficult economic climate facing the District and indicated that it was necessary to make significant cuts in the school budget due to cost increases and revenue constraints, and potential staff reductions, including two business teacher positions, were discussed. 

Noting that Farber-Peck “does not claim otherwise in her petition,"  the Commissioner said that, on the record before her, Farber-Peck has not met her burden of established that Board acted in bad faith or was motivated to abolish positions for other than economic reasons and thus “there is no basis on which to conclude that [the Board] abolition of [Farber-Peck] position was improper."

In addition, the Commissioner observed that the record indicated that “no vacancy occurred and no new position was created; instead, [Farber-Peck’s] former teaching duties were redistributed … albeit to teachers who [Farber-Peck] asserts lack the proper certification."  Further, the District's interim superintendent of schools indicated that the District would not offer any courses that otherwise would have been assigned to Farber-Peck in the subsequent school year and that, consequently, Smith and Manning would not be assigned to teach those courses.** 

However, said the Commissioner, were the Board to subsequently creates a new position in the business education tenure area Farber-Peck “may, indeed, be entitled to such position by virtue of her place on the preferred eligible list of candidates.”  However, ruled the Commissioner, Farber-Peck had not demonstrated legal right to relief she requested -- an order that the Board create a new part-time position rather than a claim of a right to an appointment to a position the Board has created.

Accordingly, Commissioner dismissed Farber-Peck’s appeal.

* The Commissioner of Education noted that, pursuant to 8 NYCRR §30-1.8 (c)(4), Farber-Peck should have been appointed “to serve in a special subject tenure area co-extensive with her teaching certificate in business and distributive education.”

** See, also, Decisions of the Commissioner Number 13,433 in which the Commissioner cites Appeal of Chaney, 33 Ed Dept Rep 12; Young v. Board of Education, 41 AD2d 966, aff'd 35 NY2d 31, [distribution or reassignment of “duties” consistent with the principle of "fractionalization, i.e., the division and, or, consolidation of certain work duties formerly performed by incumbents of abolished and unfilled titles [See Jodre v Locust Val. Cent. School Dist., 2011 NY Slip Op 31076(U), [ Not officially reported].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16917

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

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Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law

Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law

Spring v County of Monroe, 2016 NY Slip Op 05465, Appellate Division, Fourth Department

Todd Springinitiated an Article 78 proceeding seeking disclosure of approximately 200 documents, emails, memoranda, and reports pursuant to the Freedom of Information Law (FOIL). The Monroe County [County] custodian of the documents and records had declined to provide the material demanded, which were characterized as being “confidential records” and thus could be “exempted” under one or more of the exceptions permitted by the Freedom of Information Law.*

After conducting an in camera review of the records at issue, Supreme Court directed the County to provide Todd with several of the documents it claimed were “exempt” and County appealed the court’s decision.

The Appellate Division, notwithstanding its holding that Supreme Court erred in applying the “arbitrary and capricious standard of review” and instead should have determined whether the Records Appeal Officer's determination "was affected by an error of law,” elected to conduct a de novo review of the documents at issue.

Applying the appropriate standard with respect to the disputed documents in the “confidential record,” the Appellate Division concluded that:

1. E-mail correspondence between Spring and the "in-house" counsel for the County found in the confidential record at certain pages were exempt from FOIL disclosure as "counsel for the County represented Spring only in Spring's capacity as a County employee." Accordingly, only the County could waive the attorney-client privilege protecting the correspondence. The fact that Spring believed that he was the client was, said the court, “of no moment;”

2. E-mail correspondence found in the confidential record at certain pages between a County employee and counsel employed by the County were protected by attorney-client privilege;

3. A “draft informal dispute resolution [IDR]” request found in the confidential record at certain pages was exempt from FOIL disclosure inasmuch as it was protected by attorney-client privilege, by attorney work product privilege, and as inter-agency material pursuant to Public Officers Law §87(2)(g). The Appellate Division noted that draft IDR request "does not contain statistical or factual tabulations or data … or final agency policies or determinations but rather consisted “solely of . . . evaluations, recommendations and other subjective material and was therefore exempt from disclosure;"

4. Documents found in the confidential record at certain pages representing a "chronological explanation" of a County Human Resources investigation were exempt from disclosure by attorney-client privilege and under Public Officers Law §87(2)(g);

5. Documents found in the confidential record at certain pages were exempt from disclosure under Public Officers Law §87(2)(g) as those documents contained "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making;" and

6. The hearing transcript found in the confidential record at certain pages constituted pre-decisional intra-agency material and was exempt from FOIL disclosure.

With respect to the remaining materials at issue, the Appellate Division said that it concluded that the County failed to show that the Freedom of Information Law permitted their exemption from disclosure.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise a FOIL request is not required as a condition precedent to obtaining public documents or records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the desired information or records. It should also be noted that other than such disclosure being prohibited by law, there is no bar to providing information pursuant to a FOIL request, or otherwise, that could otherwise be denied pursuant to one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05465.htm

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits 

Sica v DiNapoli, 2016 NY Slip Op 05420, Appellate Division, Third Department

An accident, for the purposes of the Retirement and Social Security Law [RSSL], is defined as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact”* that “must result from an activity that is not undertaken in the performance of ordinary job duties and that is not an inherent risk of such job duties.”**

Pat Sica, a firefighter with the City of Yonkers Fire Department for approximately 17 years, was injured when he was exposed to and inhaled carbon monoxide and cyanogen chloride, both colorless and odorless gases, while responding to an emergency at a supermarket. Subsequently Sica filed an application for accidental disability retirement benefits based upon, among other things, the supermarket incident.

The Retirement System denied Sica’s application on the ground that the supermarket incident did not constitute an accident within the meaning of RSSL§363. Sica appealed the System's decision and at the administrative hearing that followed he testified that in the course of his responding the medical emergency call from a local supermarket reporting an individual experiencing difficulty with breathing:

[1] he was directed to the walk-in freezer located at the back of the supermarket where he discovered two unconscious individuals:

[2] he provided cardiopulmonary resuscitation and breathing assistance to the unconscious victim inside the freezer until an ambulance crew arrived to assist;

[3] he had not smelled, heard, or saw anything that might have indicated that chemical gases or fumes were involved in the medical emergency; and

[4] he did not learn that chemical gases were present at the scene until he himself was transported to a hospital for medical evaluation.

The Hearing Officer concluded that the incident was an accident within the meaning of the RSSL as "[t]he combination of unforeseeable and exigent circumstances made it virtually impossible for [Sica] to recognize the danger." The Comptroller, however, ultimately sustained the initial denial of Sica's application for accidental disability retirement. Sica then commenced an Article 78 proceeding challenging the Comptroller's determination.

In analyzing Sica’s appeal of the Comptroller’s decision, the Appellate Division said:

[1] An applicant for accidental disability retirement benefits has the burden of establishing that the event producing the injury was an accident; and 

[2] The Comptroller's decision denying the application for accidental disability retirement benefits will be upheld where it is supported by substantial evidence. 

Here, however, the Appellate Division found that the Comptroller’s determination that the incident was not an accident for the purposes of eligibility for accidental disability retirement benefits was not supported by substantial evidence in the record before it.  

The court explained that it has "held that exposure to toxic fumes while fighting firesis an inherent risk of a firefighter's regular duties." In Sica’s situation, however, unlike its consideration of prior cases involving exposure to toxic gases or smoke, the Appellate Division noted that Sica was not responding to a fire that presented the inherent and foreseeable risk of inhaling toxic gases.

The record indicates that Sica “was neither aware that the air within the supermarket contained toxic chemical gases … nor did he have any information that could reasonably have led him to anticipate, expect or foresee the precise hazard when responding to the medical emergency at the supermarket.” 

In contrast, the Comptroller, in reversing the Hearing Officer’s determination, relied upon the job description for Sica’s position, which indicated that he was required to respond to medical emergencies and to be exposed to hazardous conditions such as fumes and toxic materials.

Relying on such a job description, said the court, “may wholly eviscerate accidental disability retirement protection for emergency responders in rescue situations,” explaining that “if a broadly written job description that requires the rescue of individuals in hazardous situations is allowed to replace a factual analysis of the particular circumstances of each incident, those who put themselves in harm's way may be left without recourse.”

Accordingly, the court opined, “Whether an incident is so ‘sudden, fortuitous . . ., unexpected [and] out of the ordinary’ … that it qualifies as an accident within the meaning of the [RSSL] remains a factual issue that should not be determined merely by reference to job descriptions.” 

Clearly the mischief in merely considering the job description is that emergency personnel will be rendered ineligible for accidental disability retirement in any rescue situation, without regard to how exigent, unexpected or unforeseeable the circumstances of their injury may be. This, said the court,  “cannot have been the Legislature's intent in establishing the accidental disability retirement program for rescue workers.”

The Appellate Division concluded that the Comptroller’s determination that Sica’s disability resulting from his exposure to carbon monoxide and cyanogen chloride while responding to a “medical emergency” did not constitute an accident within the meaning of Retirement and Social Security Law §363 was unsupported by substantial evidence in the record.

As the review of the administrative hearing and determination of Comptroller was limited to the question of whether substantial evidence in the record support such determination, the Appellate Division “declined to address in the first instance [the Comptroller’s] arguments regarding the presumption set forth by [the RSSL] §363-a or the issue of causation.”

The court, Justices McCarthy and Devine dissenting, annulled the Comptroller’s decision and remitted the matter to him “for further proceedings not inconsistent with this Court's decision.”

* See Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010

** See Matter of Schultz v DiNapoli, 137 AD3d 1454

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05420.htm

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on http://section207.blogspot.com/

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Selected reports issued by the Office of the State Comptroller during the week ending July 16, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 16, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Bradford Fire Co. Treasurer Arrested for Stealing Public Funds

New York State Comptroller Thomas P. DiNapoli announced the arrest of Bradford Volunteer Fire Company Treasurer Sherry Hamilton. She was charged with grand larceny in the third degree, a class D felony, after an audit and investigation by DiNapoli’s office, working with the New York State Police and Steuben County District Attorney Brooks Baker, uncovered that Hamilton misappropriated more than $8,000 in fire company funds by allegedly taking "advance" payments on company activities and manipulating company bank accounts and records.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online athttp://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Independent Review Finds State Pension Fund Strong, But Warns of Risks Posed by Limited Staffing

New York State Comptroller Thomas P. DiNapoli released an independent fiduciary and conflict of interest reviewof the New York State Common Retirement Fund (Fund) that commended the Fund for its strong policies and ethical management, stating that DiNapoli’s office "maintains a very high level of ethical, professional and conflict of interest standards." Funston Advisory Services, who conducted the review, repeatedly warned, however, that existing constraints on the Fund’s staffing and compensation could have current and future consequences.

Managed Care Companies Wasting Millions in State Medicaid Dollars

United HealthCare and Amerigroup, managed care organizations that contract with the Department of Health to provide health services under the state’s Medicaid program, made at least $6.6 million in improper and questionable payments to ineligible providers over a four-year period, including almost $60,000 in payments to pharmacies for medications that were prescribed by deceased doctors, according to an auditreleased by State Comptroller Thomas P. DiNapoli.

Audits of State entities released by State Comptroller DiNapoli

Port Authority of New York and New Jersey (PANYNJ): Inspecting Highway Bridges and Repairing Defects (Follow-Up) (2015-F-19)

An audit issued in May 2014 found the authority did not follow state Department of Transportation (DOT) requirements for classifying, reporting and repairing bridge defects. Instead, the PANYNJ followed its own methods and did not always comply with DOT’s requirement for an annual interim inspection if the repairs are not completed. Further, auditors noted that 10 of the 17 safety conditions sampled were not repaired for more than two years, including three which were open for five years. In a follow-up, auditors determined PANYNJ officials made progress in correcting the problems identified.

Higher Education Services Corporation: College of Westchester Tuition Assistance Program (2015-T-5)

Auditors determined that the procedures used by Westchesterofficials to certify students for state financial aid substantially complied with the governing law and regulations.

Office of General Services (OGS) and State Education Department (SED): Preferred Source Contracting (2014-S-77)

Although SED is responsible for monitoring the New York State Industries for the Disabled (NYSID) preferred source contracting program activities, it has provided only minimal oversight. As such, there is little assurance that NYSID is awarding contracts in a manner that best meets the purpose of the program, that member agencies and corporate partners are meeting contract requirements, and that the majority of the contracted work is being completed by disabled workers. Auditors also looked at the role that OGS plays in the program and found OGS is appropriately fulfilling its current responsibilities under the program. Nonetheless, auditors identified opportunities for OGS to improve its effectiveness.

From the LawBlogs – Week ending July 16, 2016

From the LawBlogs – Week ending July 16, 2016

[Internet links highlighted in color]

Posted by Justia

Prew v. Employee Ret. Sys. of City of Providence

“Petitioner, after more than fifteen years of service in the City of Providence, [Rhode Island] Police Department, was injured while on duty. The Department concluded that Petitioner’s injury interfered with her ability to handle a firearm. Later that month, Petitioner applied to the City of Providence Retirement Board for accidental-disability retirement. The Board voted to deny Petitioner’s application, finding that Petitioner’s condition was correctable with surgery and that Petitioner failed to mitigate her injury by undergoing surgery. The Supreme Court quashed the Board’s decision, holding that the Providence Code of Ordinances does not require an otherwise eligible employee to mitigate her injury by undergoing a surgical procedure in order to qualify for an accidental-disability pension. Remanded.”

N.B. Among the rulings by New York courts on the issue of "directing an employee to submit to surgery" are the following:

In Schenectady PBA v PERB, 196 A.D.2d 171, the Appellate Divisions said that General Municipal Law "§207-c evinces a legislative intent to balance a police officer's right to receive full salary and certain benefits while disabled due to an injury incurred in the line of duty, with certain rights of the employer, including the right to have the employee submit to medical and surgical treatment, and to obligate the injured officers to perform light duty if able," as §207-c expressly authorized an employer to discontinue paying benefits if the injured officer refused to accept light duty assignments or refused medical treatment.

In contrast, in Kauffman v Dolce, 216 A.D.2d 298 the critical issue concerned City of White Plains Firefighter Kauffman’s refusal to undergo surgery for a second time. The City terminated his General Municipal Law §207-a disability benefits on the ground that his refusal undergo the second surgery constituted a waiver of his right to these benefits. Supreme Court reinstated Kauffman's §207-a benefits, finding that his refusal to undergo surgery a second time was reasonable in light of the unsuccessful previous surgery and "the lack of the likelihood of success of the proposed surgery." The Appellate Division sustained the lower court's ruling, observing that the Court of Appeals' holding in Schenectady Police Benevolent Association v Public Employment Relations Board, 85 NY2d 480, that a municipality could require police officers receiving General Municipal Law 207-c benefits to undergo corrective surgery "under appropriate circumstances ... where reasonable,"  did not apply in Kauffman's situation.

A school teacher who had lost an eye as the result of an injury on the job refused to undergo eye surgery involving the other eye because of the problems which could result. Such refusal was held reasonable by the Workers' Compensation Board. When the insurance carrier appealed, the Appellate Division affirmed the Workers' Compensation Board's determination,  holding  that the Board's finding that the teacher's refusal was reasonable under the circumstances was supported by the record (Burroughs v Goshen Public Schools, 98 A.D.2d 891).

Posted by Employment Law Daily

Police officer’s racial profiling led to job loss

By David Stephanides, Esq.

A local police department was proud of its reputation for stopping alcohol- or drug-impaired drivers passing through its city, and it encouraged its officers to make a high volume of stops. A well-respected officer decided, on his own initiative, to be more aggressive with his traffic stops to get his numbers up (City of Chaska, Minnesota and Law Enforcement Labor Services, Inc., Local No. 210, St. Paul, Minnesota,Feb. 19, 2016, Richard Miller, Arbitrator).

Employee with mental health issues unqualified due to safety risk; no direct threat defense required

By Dave Strausfeld, J.D.

The Wisconsin Division of Motor Vehicles was not required to rely on a direct-threat defense in a discriminatory discharge suit brought by an employee with a mental health disability whose behavior raised safety concerns, so it did not need to bear the burden of proof associated with that affirmative defense, held the Seventh Circuit, affirming summary judgment dismissing her Rehabilitation Act claim. Rather, it could simply argue she failed to make a showing that she was “otherwise qualified” for her position, and on this issue she bore the evidentiary burden. Sending her for an independent medical examination did not necessarily trigger the direct-threat framework (Felix v. Wisconsin Department of Transportation, July 6, 2016, Rovner, I.).

First Amendment may protect officer from retaliation for aiding FBI investigation

By Dave Strausfeld, J.D.

The First Amendment might protect a police sergeant from retaliation for aiding an FBI investigation into corruption by police department and town officials, held the Fifth Circuit, reversing a summary judgment ruling. His involvement in the FBI investigation did not appear to be within the ordinary perimeters of his job duties, especially since he was forbidden to disclose it to anyone in the police department, so he appeared to be communicating with the FBI in his capacity as a “citizen.” But on a separate issue, he did not state a False Claims Act whistleblower retaliation claim against individual town officials because a 2009 amendment did not expand the FCA to provide individual liability (Howell v. Town of Ball, July 1, 2016, Jolly, E.).

An arbitration award must be vacated if a party's rights were impaired by an arbitrator exceeding his or her power in making the determination

An arbitration award must be vacated if a party's rights were impaired by an arbitrator exceeding his or her power in making the determination

Matter of O'Flynn (Monroe County Deputy Sheriffs' Assn., Inc.), 2016 NY Slip Op. 05261, Appellate Division, Fourth Department

The Monroe County Sheriff’s Department terminated then Deputy Sergeant Paul Doser from his position after Doser was involved in a one-car rollover accident and it was determined that he was driving while intoxicated (DWI).

The appointing authority filed disciplinary charges against Doser alleging: (1) Driving while intoxicated in violation of Vehicle and Traffic Law §1192(3); (2) Aggravated DWI with a blood alcohol content of .18 percent or greater in violation of Vehicle and Traffic Law §1192(2-a)(a); (3) Aggravated DWI with a child in the car in violation of Vehicle and Traffic Law §1192(2-a)(b); (4) Endangering the welfare of a child in violation of Penal Law §260.10(1); and (5) Engaging in conduct unbecoming of his position. 

Consistent with the controlling collective bargaining agreement (CBA), the Department held a administrative disciplinary hearing at which Doser was represented by the Monroe County Deputy Sheriffs' Association, Inc. [Association]. Doser was found guilty of all the charges filed against him and the penalty imposed was termination.

Doser then filed a grievance challenging the Department’s disciplinary decision and, pursuant to the CBA, a hearing was held before an arbitrator.

At the arbitration the arbitrator found that certain evidence, including the chemical test results measuring Doser's blood alcohol content, was inadmissible. Refusing to consider such evidence, the arbitrator found that the second and fifth charges were not supported by clear and convincing evidence and dismissed those charges but sustained charges one, three, and four.

Comparing the penalty imposed on Doser, termination, with the penalties imposed on other officers also involved in similar DWI-related violations, the arbitrator noted that none of the other officers had been terminated. Concluding that Doser's termination was arbitrary and capricious, the arbitrator ruled [1] that demotion, rather than termination, was the appropriate penalty and [2] that Doser was to be reinstated by the Department and compensated for lost pay.

The Department filed a CPLR §7511 petition seeking to vacate the arbitrator's determination and award. Finding that the arbitrator “exceeded his authority by improperly neglecting to consider certain evidence” received in the course of the disciplinary hearing, Supreme Court vacated the award in its entirety, and ordered a rehearing before a different arbitrator.

The Association appealed the Supreme Court’s decision. The Appellate Division, however, sustained the lower court’s ruling, explaining that CPLR §7511(b) provides that an arbitration award must be vacated if, as relevant in this appeal, “a party's rights were impaired by an arbitrator who exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made."

The Appellate Division observed that "[i]t is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" and “[o]utside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact." The court concluded that the arbitrator, in this instance, had “clearly exceeded his authority as provided by the CBA.”

Rather than comply with the provisions in the CBA that "[t]he arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence," the arbitrator, instead of reviewing the record from the hearing, considered only a portion of the record after having decided to exclude certain evidence from his review.

Having failed to review all the evidence that, in this instance, the arbitrator was required to review, the Appellate Division concluded that Supreme Court had properly found that the arbitrator exceeded his authority and vacated the arbitration award. In so doing, the Appellate Division rejected the Association’s argument that “any error in this regard was harmless.” Rather, said the court, the arbitrator’s refusal to consider the inappropriately-excluded evidence directly resulted in the dismissal of two out of the five charges.

In addition, the Appellate Division rejected the Association’s claim that even if that error did not impact the arbitrator's determination as to the penalty to be imposed, the imposition of the penalty of termination was arbitrary and capricious in and of itself. The Appellate Division disagreed, explaining by the arbitrator's  making comparisons between the conduct alleged against Doser and that committed by other officers in other, similar, cases after excluding certain evidence against Doser resulted making a comparison without the benefit of a full review of the record.

As to the objection of the Association to Supreme Court’s ordering a rehearing before a different arbitrator, the Appellate Division said that in “vacating an arbitration award, a court has the discretion to ‘order a rehearing and determination of all or any of the issues either before the same arbitrator or before a new arbitrator.’" As the arbitrator making the decision challenged by the Department exceeded his authority under the CBA, the Appellate Division said it conclude that the court did not abuse its discretion in ordering that a different arbitrator conduct the rehearing and affirmed the Supreme Court’s order vacating the initial arbitrator’s opinion and award and ordering a rehearing before a different arbitrator.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05261.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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New York State’s Human Rights Law does not protect an employee from all retaliation, only from retaliation that results in an injury or harm

New York State’s Human Rights Law does not protect an employee from all retaliation, only from retaliation that results in an injury or harm

Napierala v New York State Div. of Human Rights, 2016 NY Slip Op 04832, Appellate Division, Fourth Department

Lisa Napierala challenged New York State Division of Human Rights’ [SDHR] determination of "no probable cause" with respect to her complaint that Erie Community College [ECC] had retaliated against her in violation of the State’s Human Rights Law. Supreme Court granted Napierala’s CPLR Article 78 petition and the SDHR appealed.

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and reinstated SDHR’s determination.

Napierala, a security officer at ECC had alleged that ECC had retaliated against her "by subjecting her to adverse employment actions after she complained of discrimination." In particular, she contended that:

1. ECC retaliated against her by assigning her to guard duty in its athletic center at a time when the gymnasium floor was being polyurethaned and strong fumes resulted in her becoming ill near the end of her shift.*  

2. ECC retaliated against her when it allegedly lost her "On-the-Job-Training Certificate," which led to the lapse of her security license and resulted in her suspension without pay.

In reinstating SDHR’s finding of "no probable cause" the Appellate Division observed that when SDHR renders a determination of no probable cause without holding a hearing, the appropriate standard of judicial review is whether the "no probable cause" determination was arbitrary and capricious or lacked a rational basis. Further, noted the court, SDHR "has broad discretion to determine the method to be employed in investigating complaints … and its determinations are entitled to considerable deference due to its expertise in evaluating discrimination claims."

The court said that in its view, SDHR's determination is not arbitrary or capricious and it has a rational basis. Further, the record established that Napierala "had a full and fair opportunity to present her case and that [SDHR's] investigation was neither abbreviated nor one-sided." Probable cause exists, explained the Appellate Division, "only when, after giving full credence to the complainant’s version of the events, there is some evidence of unlawful discrimination."

Crediting Napierala’s contention that ECC intentionally assigned her to its athletic center knowing that the gym floor was being polyurethaned, the Appellate Division concluded that there is no evidence of unlawful discrimination as Napierala:

[1] was not forced to stay at the athletic center against her will, nor 

[2] was she disciplined for leaving work early. 

The New York State’s Human Rights Law and Title VII of the Civil Rights Act of 1964, and, in the words of the Appellate Division, "are textually similar and ultimately employ the same standards of recovery," and thus "federal case law in this area . . . proves helpful to the resolution of this appeal." The Appellate Division then pointed out that the United States Court of Appeals for the Second Circuit has opined that Title VII "does not protect an employee from all retaliation, but only retaliation that produces an injury or harm.  ... and in Napieralasituation there was no injury or harm."

Turning to Napierala’s allegation concerning the security license lapse issue, the Appellate Division stated that it did not appear from the record that ECC ever was in possession of Napierala’s training certificate. In any event, the court said that the record shows that ECC provided Napierala with an opportunity to rectify the situation. While Napierala was ultimately suspended without pay, this suspension was initiated only after she failed to rectify the situation, an action consistent with ECC’s treatment of other security officers with lapsed licenses.

As to SDHR’s failure to hold a hearing concerning Napierala’s complaint, the Appellate Division explained that “there was no need for a hearing ‘because the record does not demonstrate the existence of unresolved questions that required further scrutiny.’”

Citing McFarland v New York State Div. of Human Rights, 241 AD2d 108, the court explained that "[A]s long as the investigation is sufficient and the [petitioner is] afforded a full opportunity to present his [or her] claims, [i]t is within the discretion of [SDHR] to decide the method or methods to be employed in investigating a claim." As SDHR had contacted both Napierala and ECC and had requested specified answers and documents related to Napierala’s allegations, "the conflicting evidence before SDHR did not create a material issue of fact that warranted a formal hearing."

* Napieralaleft work after leaving a voice message with her supervisor advising him that she had to leave her shift early. She subsequently met with the Human Resources Department to discuss why she went home sick without first obtaining her supervisor's permission. However, no disciplinary action against her was taken.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04832.htm

Changes in IRS rule concerning deferred compensation plans of a state, a local government and other tax-exempt organizations proposed

Changes in IRS rule concerning deferred compensation plans of a state, a local government and other tax-exempt organizations proposed

Source: The FEDERAL REGISTER, 40548, Vol. 81, No. 120

Proposed regulations set out rules addressing the taxation of compensation applicable to "tax deferred compensation plans" established and maintained by State or local governments and other tax exempt organizations.* 

The proposed regulations include rules for determining "when amounts deferred under these plans are includible in income, the amounts that are includible in income, and the types of plans that are not subject to these rules."

The proposed regulations would affect participants, beneficiaries, sponsors, and administrators of certain plans sponsored by State or local governments or tax-exempt organizations that provide for a deferral of compensation.

* Article 8-C of New York State's Education Law, Special Annuity Plan, establishes a “deferred compensation plan” available to “a person employed by the state university [of New York and the employees at the Statutory Contract Colleges at Cornell and Alfred Universities], the board of higher education of the city of New York, or a community college established and operated under article one hundred twenty-six” of the Education Law as permitted pursuant to §403(b) of the Internal Revenue Code, as amended. Article 63 of the Education Law allows “§403(b) deferred compensation plans” to be made available to employees of a school district or a BOCES by the appointing authority.

The proposed regulations and notice of public hearing is posted on the Internet at: https://www.gpo.gov/fdsys/pkg/FR-2016-06-22/pdf/2016-14329.pdf

Collateral estoppel effect given to the factual findings of the hearing officer made in the course of an administrative hearing

Collateral estoppel effect given to the factual findings of the hearing officer made in the course of an administrative hearing

Matter of Mykhaskiv (Westhampton Beach Union Free Sch. Dist.--Commissioner of Labor), 2016 NY Slip Op 05214, Appellate Division, Third Department

Oksana Mykhaskiv appealed a decision of the Unemployment Insurance Appeal Board after it ruled that she was disqualified from receiving unemployment insurance benefits after determining that the Westhampton Beach Union Free School District had terminated Mykhaskivemployment due to her misconduct.

Mykhaskiv had been employed as a custodian with a school district. Several charges were preferred against her alleging misconduct and neglect of duty. The specifications set out in disciplinary charges filed against her included allegations that she failed to comply with her supervisor's directive to assist in cleaning an area assigned to another coworker who was absent from work.

In the disciplinary hearing held pursuant to Civil Service Law §75, the Hearing Officer sustained, among other things, the charge that Mykhaskiv was guilty of misconduct, finding that she refused to comply with her supervisor's directive to clean a particular area. Based upon the Hearing Officer's findings of fact and recommendation, Mykhaskiv was discharged from her employment for insubordinate behavior.

Subsequently the Unemployment Insurance Appeal Board denied Mykhaskiv application for unemployment insurance, finding that her employment was terminated due to disqualifying misconduct. Mykhaskiv appealed the Board’s decision.

The Appellate Division said that the record indicates that Mykhaskiv had a full and fair opportunity to litigate the issue of her misconduct at the Civil Service Law §75 hearing.

Citing Matter of Ranni [Ross], 58 NY2d 715, the Appellate Division said that at the §75 disciplinary hearing [1] Mykhaskiv was represented by an attorney, [2] had a representative from her union present and [3] was afforded an opportunity to testify, present witnesses and cross-examine the school district's witnesses. Under these circumstances, said the court, “the Board properly gave collateral estoppel effect to the factual findings of the Hearing Officer.”

In addition, the court noted that the record confirmed that the Board made its own conclusions as to whether Mykhankiv’s behavior constituted disqualifying misconduct for the purposes of determining her eligibility for unemployment insurance benefits. Insubordinate behavior has been held to constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law.

As substantial evidence supported the Board's finding that Mykhankiv, who had previously been warned about failing to comply with a supervisor’s directives, was disqualified from receiving unemployment insurance benefits, the Appellate Division declined to disturb the Board's determination.

The decision is posted on the Internet at:

Top of Form

Bottom of Form

http://www.nycourts.gov/reporter/3dseries/2016/2016_05214.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions and the termination of permanent, provisional, temporary and term state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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Selected preliminary appeal statements filed with the Court of Appeals during the month of June 2016

Selected preliminary appeal statements filed with the Court of Appeals during the month of June 2016

Source: Court of Appeals 

Is a demand to negotiate a municipality's police disciplinary procedure a mandatory subject of collective bargaining?

City of Schenectady v New York State Public Employment Relations Board (PERB), 136 AD3d 1086

Leave to appeal granted by Court of Appeals,

Issue: Did the Taylor Law, as codified in Civil Service Law Article 14, supersede Article 9 of the Second Class Cities Law thereby making City of Schenectady's police disciplinary procedure a mandatory subject of collective bargaining?

Supreme Court, Albany County, among other things, dismissed Schenectady's CPLR Article 78 application to review a determination of PERB finding that Schenectady's police disciplinary procedures were a mandatory subject of collective bargaining. The Appellate Division affirmed. [See, also, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 and Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town Of Wallkill Police Dept. Unit, Orange County Local 836), 19 NY3d 1066.] 

Offsetting the loss of future pension benefits
Andino v Mills, 135 AD3d 407

Leave to appeal granted by Appellate Division

Issue: Did the Appellate Division correctly hold that, under Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81, the jury's award for future loss of pension benefits should have been offset by the total amount that plaintiff was projected to receive under her accidental disability pension?

Supreme Court, Bronx County, after a hearing, denied defendants' motion for a collateral source offset pursuant to CPLR 4545; thereafter, Supreme Court, upon a jury verdict, awarded plaintiff the principal sums of $600,000 for past pain and suffering, $23,000,000 for future pain and suffering over 37 years, $283,422 for past lost earnings, $2,392,512 for future lost earnings over 19.24 years, $2,100,000 for future medical expenses over 37 years, and $2,490,829 for future loss of pension over 17.7 years; App. Div. modified to grant that portion of defendants' motion seeking to offset the jury's award of future pension benefits by the amount of plaintiff's accidental disability benefits, and to vacate the award for future pain and suffering and order a new trial as to such damages, unless plaintiff, within 30 days of service of a copy of the order with notice of entry, stipulated to accept a reduced award for future pain and suffering in the amount of $2.7 million and to entry of an amended judgment in accordance therewith, and otherwise affirmed.

Providing for the defense and indemnification of public officers and employees named as defendants in certain litigation

Providing for the defense and indemnification of public officers and employees named as defendants in certain litigation

Scimeca v Brentwood Union Free Sch. Dist., 2016 NY Slip Op 05157, Appellate Division, Second Department

The Brentwood Union Free School District [Brentwood] and a number of Brentwood employees* [Employees] were named as respondents in complaint filed with the New York State Division of Human Rights [SDHR] by another Brentwood employee [Complainant].

Employees sought “defense and indemnification” by Brentwood and a law firm other than the law firm representing Brentwood in the SDHR action was designated by Brentwood’s insurance carrier to represent Employees in the SDHR proceeding. Employees, however, perceiving conflict of interest between themselves and Brentwood, employed a different attorney to represent them in the SDHR action. Employees then sought reimbursement for the fees and litigation expenses they had incurred in defending themselves in the SDHR action from Brentwood, citing Public Officers Law §18 as authority for such payments.

Brentwood declined to  pay the fees and litigation expenses incurred by Employees as a result of their having employed their own attorney for this purpose. Employees filed an Article 78 petition seeking a court order to compel Brentwood to indemnify them for the legal expenses they had incurred in defending themselves in the SDHR action.

The Supreme Court denied the employees’ petition and dismissed the proceeding; the Appellate Division affirmed the Supreme Court’s ruling.

Both Public Officers Law §18** and Education Law §3811 provide for a political subdivision of the State to provide for the defense and indemnification of its employees in certain actions or proceedings. 

The provisions of Public Officers Law §18, however, only become available to the employees of the political subdivision as the result of  the governing body of the political subdivision adopting a law, rule, regulation or resolution [1] providing for such representation and indemnification of its employees at the entities expense and [2] providing for the reimburse employees of any the costs and damages for which the employees are liable, exclusive of punitive or exemplary damages, fines or penalties.

Education Law §3811applies to officers, the teaching or supervisory staff, and non-instructional employee of any school district, other than the city school district of the city of New York or any board of cooperative educational services. §3811 provides for the defense of such personnel in any action or proceeding and all of his or her reasonable costs and expenses, as well as all costs and damages adjudged against him or her other than those incurred [1] in a criminal prosecution or [2] an action or a proceeding brought against him or her by a school district, including proceedings before the Commissioner of Education, arising out of the exercise of his or her powers or the performance of his or her duties under the Education Law.

According to the decision by the Appellate Division, Brentwood extended the benefits of Public Officers Law §18 to its employees, but, as that statute specifically authorizes, specified that "[t]he benefits accorded to Brentwood employees under Section 18 of the Public Officers Law shall supplement and be available in addition to defense and indemnification protection conferred by other enactments or provisions of law," such as Education Law §3811.

Insofar as relevant in this proceeding, the Appellate Division said:

1. Education Law §3811 does not exclusively govern the retention of counsel for a school district employee entitled to a defense under that statute and Public Officers Law §18;

2. Public Officers Law §18(3)(b), applies in the event that either the employer or a court determines that a conflict of interest exists and permits an employee to obtain an attorney of his or her choice and that this provision is consistent with Education Law §3811;

3. Education Law §3811 provides that the trustees or board of education have the right to designate and appoint legal counsel for an eligible employee as long as it does so within 10 days of receiving notice of the relevant action or proceeding; otherwise the employee may select his or her own legal counsel; and

4. The provisions of Public Officers Law §18 and Education Law §3811 can be read together to provide that the trustees or the board have the right to designate and appoint counsel within 10 days of receiving notice of an action or proceeding, unless the School District and the employee have conflicting interests, in which case the employee is permitted to select his or her own counsel. Under this reading, Public Officers Law §18 supplements Education Law §3811 by addressing and making provision for a specific set of circumstances not addressed in Education Law §3811.

That said, the Appellate Division noted that Brentwoodcorrectly contended that no conflict of interest existed between Brentwood and Employees with respect to defending the subject SDHR complaint that would otherwise entitle Employees to select private counsel, payable by the School District

The court explained that the SDHR complaint, which was asserted against Brentwood and Employees jointly, did not allege that Employees committed any acts outside the scope of their employment and, significantly, Brentwood, in its response to the complaint, did not assert that Employees were acting outside the scope of their employment, or that they acted improperly in any way.

As Brentwood “categorically denied all of the allegations in the complaint, countered each of the allegations with detailed facts aimed at demonstrating their falsity, and asserted that it was the Complainant who had threatened and intimidated one of [the Employees], the court concluded that no conflict of interest existed between Brentwood and Employeeswith regard to the subject SDHR complaint that would otherwise have entitled Employees to employ private counsel, to be paid by Brentwood, under a theory that a "conflict of interest" between the parties existed.

Accordingly, said the Appellate Division, Supreme Court “properly denied, and the proceeding [was] properly dismissed.”

* Although all not all public employees of a public entity are public officers, all public officers of that entity are public employees.

** §17 of the Public Officers Law provides for the defense and indemnification of officers and employees of the State as the employer in the event such persons are defendants in a civil action arising out acts or omissions involving or performed within the scope of their official duties. §19 of the Public Officers Law addresses so reimbursing an officer or an employee of the State as the employer named as a defendant in a criminal action arising out of acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against such officer or employee. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05157.htm