Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Matter of Kinach v de Blasio, 2018 NY Slip Op 04425, Appellate Division, First Department

The New York City Mayor's Personnel Order No. 2016/1 established certain paid leave benefits and modified a planned salary increase and reduced the amount of annual leave for managers with 15 or more years of experience. In addition, the order provided that, effective December 22, 2015, such New York City personnel subject to the order would be entitled to 30 days paid parental leave (PPL) every 12-month period for the birth of a child, adoption, or foster care.

MPO 2016/1 modified MPO 2015/1 and MPO 2015/2 by eliminating a 0.47% wage increase scheduled to go into effect on July 1, 2017 and modified the annual leave schedule for covered titles by eliminating the accrual of the 26th and 27th annual leave days, capping the accrual of annual leave days at 25 days, in order to fund these benefits.

Petitioners, five managers all over the age of forty (40) and not in a collective bargaining unit within the meaning to Article 14 of the Civil Service Law, advanced a number of challenges involving MPO No. 2016/1 with respect to the modification of the benefits set out in MPO 2015/1 and MPO 2015/2.

Addressing Petitioners' claims of unlawful discrimination based on age, the Appellate Division held that Petitioners "failed to state a claim of age discrimination" as defined in the Administrative Code of City of NY §8-107, the New York City Human Rights Law or Executive Law §296[1][a] the New York State Human Rights Law and the adverse action alleged by Petitioners did not occur under circumstances giving rise to an inference of discrimination.

The court explained that the Petitioners' claim [a] was based upon the false premise that women over 40 years of age cannot bear children, [b] ignored the fact that PPL benefits were available to biological fathers, regardless of age, who becomes a parent through adoption or by fostering, and [c] was undercut by Petitioners' submission of data reflecting that members of their age group received PPL benefits.

In the words of the Appellate Division, "MPO No. 2016/1 is facially neutral and applies equally to all covered employees, regardless of age ... and no disparate impact has been shown" by Petitioners.

Addressing Petitioners equal protection argument, the court said Petitioners failed to demonstrate any violation of Article 1, §11 of the New York State Constitution as "MPO No. 2016/1 treats all similarly situated employees alike." Further, the Appellate Division found that the State's "non-impairment clause" set out in Article V, §7, of the State Constitution was "not implicated as the challenged action does not involve a change directly related to retirement benefits.

Considering the Petitioners' arguments challenging the "cost-cutting" measures the City elected to use "to pay for the PPL benefit," the Appellate Division held that the method selected by the City was not arbitrary and capricious and, notwithstanding Petitioners' claim that less extreme cost-cutting measures should have been taken, the court explained that such a belief "does not render [the City's] determination irrational."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04425.htm

Filing a noticed of claim may be required as condition precedent to initiating litigation against a public entity

Filing a noticed of claim may be required as condition precedent to initiating litigation against a public entity

Fotopoulos v Board of Fire Commr. of the Hicksville Fire Dist., 2018 NY Slip Op 03128, Appellate Division, Second Department

New York courts have distinguished between proceedings brought against public entities  "which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest." In Union Free School Dist. No. 6 of Towns of Islip and Smithtown v New York State Div. of Human Rights Appeal Board, 35 NY2d 371, 380, motion to reargue denied, 36 NY2d 807, it was held that an aggrieved individual must file a timely notice of claim "as to the former but not as to the latter."*

In this CPLR Article 78 action a volunteer firefighter [Petitioner] with the Hicksville Fire Department [Department] and a dispatcher employed by the Hicksville Fire District [District], working under the direction of the Board of Fire Commissioners of the Hicksville Fire District [Board] until he was allegedly forced to resign from both of these positions by coercion and duress.

When Petitioner subsequently attempted to withdraw his resignation, he was advised that the Department, the District, and the Board [collectively Respondents] refused to approve his request to withdraw the resignation.**

Petitioner initiated a CPLR Article 78 proceeding seeking a court order compelling Respondents to reinstate him to his former positions as a dispatcher and as a volunteer firefighter with all of the benefits of these employment including back pay. Respondents opposed the petition arguing, among other things, that the petition should be denied since Petitioner failed to file a notice of claim as required by General Municipal Law §50-e.

Supreme Court denied the petition and dismissed the proceeding, determining  that the Petitioner's failure to file a notice of claim precluded the court from considering the complaint. Petitioner appealed.

The Appellate Division explained that, as a general rule, "[t]he service of a notice of claim is a condition precedent to the maintenance of an action against a public corporation to recover damages for a tortious or wrongful act" but such a notice of claim requirement does not apply when a litigant seeks only equitable relief or commences a proceeding to vindicate a public interest. Further, said the court, a litigant who seeks "judicial enforcement of a legal right derived through enactment of positive law" is exempt from the notice of claim requirement.

Finding that in Petitioner's case both equitable relief and the recovery of damages in the form of back pay was demanded, the Appellate Division sustained the Supreme Court's ruling, holding that "the filing of a notice of claim within 90 days after [Petitioner's] claim arose was a condition precedent to the maintenance of this proceeding."

* It should be noted that in CSEA v Lakeland Central School District, 230 A.D.2d 703, the Appellate Division rejected Lakeland's theory that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in §3813 of the Education Law. The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted [Lakeland's] waiving compliance with that requirement.”

** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c), which applies to employees of the State as an employer, provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” Many local civil service commissions and personnel officers have adopted a similar rule.

The Fotopoulos decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03128.htm

Commissioner of Education found it unnecessary to certify "that respondent appeared to have acted in good faith" for the purposes indemnifying them for costs and expenses

Commissioner of Education found it unnecessary to certify "that respondent appeared to have acted in good faith" for the purposes indemnifying them for costs and expenses

Appeal of William King Moss III regarding a staff appointment, Decisions of the Commissioner of Education, Decision No. 17,409

Although the Commissioner dismissed this appeal for failure to serve a "necessary party" -- here the staff member whose appointment was challenged by Mr. Moss -- the Commissioner addressed an administrative matter.

The respondents in this appeal to the Commissioner had requested that the Commissioner "certify that “all board members” and the superintendent acted in good faith within the meaning of Education Law §3811(1) thereby authorizing the board to indemnify certain individuals for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties.

 

Education Law §3811, in relevant part, provides that "Whenever the trustees or board of education of any school district ... [shall] defend any action brought against them ...  all their costs and reasonable expenses, as well as all costs and damages adjudged against them, shall be a district charge and shall be levied by tax upon the district."

Although the Commissioner observed that is appropriate to issue such certification unless it is established on the record that the requesting respondent[s] acted in bad faith, in this instance the Commissioner found it unnecessary to so certify because, in the words of the Commissioner, respondent’s costs in defending this proceeding are, by operation of statute, a cost upon the district, and no claims are interposed against any individual board members."

Accordingly, as respondent’s costs in defending an action or proceeding against the board are deemed a cost upon the district by Education Law §3811 and no individual board members are a party to this appeal, the Commissioner found that she "need not certify that respondent appeared to have acted in good faith."

In addition, the Commissioner found it unnecessary to grant respondent’s request with respect to the superintendent as he is not a party to the instant proceeding and, thus, was  not obligated to defend himself within the meaning of Education Law §3811.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17409

Former corrections officer alleged to have used fake pay stubs in an effort to qualify for a mortgage

Former corrections officer alleged to have used fake pay stubs in an effort to qualify for a mortgage

Source: Office of the State Comptroller

A former New York state corrections officer and his wife were arrested Friday, June 29, 2018, for allegedly giving false pay stubs to “boost” their family income to qualify for mortgage loans from two banks as the result of an investigation by New York State Comptroller Thomas P. DiNapoli, the New York State Police and the New York State Department of Corrections and Community Supervision’s Office of Special Investigations (DOCCS).

The couple are accused of providing doctored prior DOCCS pay stubs to mislead the two banks that the husband was still employed by DOCCS, although he had left the agency the year before. The scheme "unraveled" when the banks contacted DOCCS to verify the applicant's employment.

"This couple thought they could use a forged state pay stub to trick two banks into giving them a mortgage," said State Comptroller Thomas P. DiNapoli.  "Thanks to my ongoing partnerships with the Department of Corrections, Office of Special Investigations and the New York State Police, their scheme was quickly exposed and they now will be held accountable for their actions.  I thank District Attorney Soares for prosecuting this case."

“I am proud of those staff with our Department’s Office of Special Investigations (OSI), who worked both internally and hand in hand with the Comptroller’s investigators, to assist in this arrest and possible future prosecution of the wrongdoers,” said DOCCS Acting Commissioner Anthony J. Annucci. “I commend the men and women of OSI who once again showed that with their skills and partnerships with other state agencies, we will continue to hold those fully accountable for their improper actions.”

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, N.Y. 12236.

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757

Although the hearing officer found that she was living outside the City on January 1, the Commissioner held that she was a resident of the City on that date. This determination made the contact provision inapplicable to her.

The Appellate Division concluded that the record contained substantial evidence affording a rational basis for the Commissioner’s finding that Ziehm was a City resident from 1973 until June 1979 and that she did not qualify for the exemption contained in the collective bargaining agreement and upheld his determination.

The Appellate Division then considered the issue of whether Respondent's final determination was supported by substantial evidence. It found that it was, noting that "As relevant here, neglect is defined as an action 'that breaches a custodian's duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient.'"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03407.htm

A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Andino v Mills, 2018 NY Slip Op 04273, Court of Appeals

Does a retired New York City police officer's accident disability retirement (ADR) benefits are a collateral source that a court must offset against the injured retiree's jury award for future lost earnings and pension?

The Court of Appeals held that a New York City retired police officer's accident disability retirement (ADR) benefits does so operate by [1] replacing earnings during the period when the officer could have been employed absent the disabling injury and then [2] serving as pension allotments. Accordingly, a court must offset the retiree's projected ADR benefits against the jury award for both categories of economic loss.*

Niurka Andino [Plaintiff] is a retired police officer who was injured on duty while riding in a police car that collided with a vehicle owned by the New York City Transit Authority (NYCTA) and operated by NYCTA employee Ronald Mills [Defendants].

Defendants moved to offset the jury award pursuant to CPLR §4545, which permits a court to find that certain awarded damages were or will, with reasonable certainty, be replaced or indemnified from a collateral source. Defendants contended that "when a police officer retires due to an on-the-job injury that leaves the officer disabled, the ADR benefits allotted to that officer for those years when the officer could have been working, if not for the disability, operate as lost earnings. Once the retired officer reaches the age for regular retirement from service, absent the retirement-inducing injury, ADR benefits serve as a pension."

Andino argued that [1] "there is no direct correspondence between her ADR benefits and the categories of economic loss awarded by the jury" and [2] "that ADR displaces Ordinary Disability Retirement (ODR), and the higher amount of ADR benefits as compared with ODR allotments is paid as a reward for services previously rendered." As the Court of Appeals characterized Andino's argument, "... the premium in ADR benefits as compared to ODR benefits is neither "earnings" nor "pension" but paid in gratitude for past services".

The Court of Appeals explained that ADR benefits, and the text and legislative intent of CPLR §4545, as interpreted by the court in Oden v Chemung County, 87 NY2d 81,** provide the basis for concluding that "ADR benefits operate sequentially as payment for future lost earnings and pension benefits." Accordingly, said the court, on a motion pursuant to CPLR §4545, "a court must apply ADR benefits, dollar-for-dollar, to offset the jury award for future lost earnings during the period they represent lost earnings, and future lost pension during the period they represent lost pension."

The court also rejected Andino's alternative argument that "ADR benefits are a 'reward' for the retiree's service which may not be offset against a jury award" as unpersuasive, explaining that "there is no support in the Administrative Code or CPLR §4545 or any available legislative history to treat ADR benefits as a category on its own, exempt from mandatory offset." In any event, said the court, "even if the Legislature sought to reward service members like Andino, who suffer an injury in the line of duty, that would not change the classification of ADR benefits as a replacement for lost earnings and pension allowances" as there is no legal justification for treating a portion of ADR benefits as a reward based on the 25% differential between ODR and ADR benefits. In the words of the Court of Appeals, "CPLR 4545 anticipates a dollar-for-dollar  offset" and that offset "is based on the category of reimbursement, not on a stratification of the collateral source total amount."

The case was remitted Supreme Court for further proceedings "in accordance with the opinion herein and, as so modified, affirmed," Judges Wilson dissenting in an opinion in which Judge Fahey concured.

* By stipulation, the parties agreed to set the period for future lost earnings at 19.24 years and future lost pension at 17.7 years.

** The specific facts of Oden, said the court, explain why that decision provides a different disposition than is called for Andino's case. In Oden, the plaintiff's private sector retirement pension benefits could not offset the jury's award for his future lost earnings because the pension allotments did "not necessarily correspond to any future earning capacity plaintiff might have had," because Oden "would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04273.htm

US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

Ortiz v. United States, Docket: 16-1423, Government & Administrative Law

In addition to "Company Punishment,"* a non-judicial proceeding, the United States “court-martial system” provides for an initial judicial determination of the guilt or innocence of military personnel charged with one or more violations of the federal Code of Military Justice. If the accused is found guilty, the court levies the punishment to be imposed.**

There are four appellate courts: the Court of Criminal Appeals (CCA) for, respectively, the Army, Navy-Marine Corps, Air Force, and the Coast Guard. CCA decisions may be subject to review by the Court of Appeals for the Armed Forces (CAAF). CAAF is a “court of record” composed of five civilian judges.

Keanu Ortiz, an Airman First Class, was convicted by a court-martial of possessing and distributing child pornography. The penalty imposed, two years’ imprisonment and a dishonorable discharge. Ortiz asked the CAAF to review the matter, challenging the qualification of one of its members, Colonel Martin Mitchell, to serve on the CCA panel because he had been appointed to the Court of Military Commission Review (CMCR) by the Secretary of Defense. Further, to moot a possible constitutional problem with the assignment, the President (with the Senate’s advice and consent) also appointed the Colonel Mitchell to the CMCR pursuant to §950f(b)(3).

As Judge Mitchell participated in Ortiz’s CCA appeal, Ortiz claimed that Judge Mitchell’s CMCR appointment barred his continued CCA service under both a statute and the Constitution, contending that the appointment violated §973(b)(2)(A), which provides that unless otherwise authorized by law,” an active-duty military officer “may not hold, or exercise the functions of,” certain “civil office[s]” in the federal government. Ortiz also argued that the Appointments Clause prohibits simultaneous service on the CMCR and the CCA.

The CAAF denied Ortiz's appeal.

Ultimately the Supreme Court said that it had jurisdiction to review the CAAF’s decisions, explaining that "The judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex."

The Supreme Court's decision notes that Professor Aditya Bamzai had filed a brief amicus curiae with the Supreme Court contending that cases decided by the CAAF do not fall within Article III’s grant of appellate jurisdiction to the Supreme Court. The Supreme Court, citing Marbury v. Madison, 1 Cranch 137, said that then Chief Justice Marshall had explained that “the essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”

Here, said the Supreme Court, Ortiz’s petition asks the Supreme Court to “revise and correct” the latest decision in a “cause” that began in and progressed through military justice “proceedings.”

Unless, opined the court, Chief Justice Marshall’s test implicitly exempts cases instituted in a military court, the case is now appellate. But, the court concluded, "There is no reason to make that distinction. The military justice system’s essential character is judicial. Military courts decide cases in strict accordance with a body of federal law and afford virtually the same procedural protections to service members as those given in a civilian criminal proceeding. The judgments a military tribunal renders “rest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other legal tribunals.”

Justice Kagan delivered the opinion of the court, in which Justices Roberts,  C. J., and Justices Kennedy, Thomas, Ginsburg, Breyer and Sotomayor joined. Justice Thomas filed a concurring opinion and Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined., holding that the Court has appellate jurisdiction to review the CAAF’s decisions. "In exercising that jurisdiction, [the majority said] that Judge Mitchell’s simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A)’s office-holding ban nor the Constitution’s Appointments Clause" and affirmed the judgment below."

* 10 U.S. Code Chapter 47 - UNIFORM CODE OF MILITARY JUSTICE, §815 - Art. 15. Commanding officer’s non-judicial punishment.

** See, generally, 10 U.S. Code Chapter 47, §816 - Art. 16. Courts-martial classified. See, also, New York State Military Law, Article 7 - Code of Military Justice.

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1423_bq7c.pdf

Employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee

Employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee

Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 85 U. S. ____ (2018).

Petitioner Mark Janus, an Illinois state employee whose collective bargaining unit is represented by a public-sector union [Union], refused to join the Union because he opposes many of its positions, including those taken by the Union in the course of collective bargaining. Janus, however, was required to pay an "agency shop fee" in lieu of paying "regular dues" to Union. The Governor of Illinois also opposed to many of the Union's positions and attempted to join in the litigation as a plaintiff but was held to "lack standing."

Janus, contending that the state law authorizing agency fees to be paid to a union representing state employees in collective bargaining was unconstitutional, sued the State of Illinois.

The United States Supreme Court held that the State’s extraction of agency fees from nonconsenting public-sector employees violated the First Amendment, overruling its earlier decision in Abood v Detroit Board of Education, 431 U. S. 209.

In Abood the high court ruled that an agency shop fee may cover a union's expenditures attributable to those activities “germane” to the union’s collective-bargaining activities, referred to as chargeable expenditures, but may not cover the union’s political and ideological projects, i.e., nonchargeable expenditures.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts  and Justices Kennedy, Thomas, and, Gorsuch joined. Justice Sotomayor filed a dissenting opinion and Justice Kagan filed a dissenting opinion in which Justices Ginsburg and Breyer and Sotomayor joined.

In the words of the majority, "... States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Matter of Terry v County of Schoharie, 2018 NY Slip Op 04612, Appellate Division, Third Department

Petitioner in this CPLR Article 78 action alleged that Schoharie County [Schoharie] had abolished her position in violated Civil Service Law §80 as it was done in bad faith and, with respect her federal claims, violated her constitutional rights to due process, equal protection and political affiliation.

Schoharie removed the proceeding to Federal District Court and that court ultimately dismissed all of Plaintiff's federal claims on the merits. The District Court, however, declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and remanded them back to Supreme Court. Supreme Court then granted Schoharie's motion for summary judgment dismissed Plaintiff's petition and Plaintiff appealed.

The Appellate Division, indicating that "A public employer may, in the absence of bad faith, collusion or fraud, abolish positions for the purposes of economy or efficiency",  noted that Schoharie had argued that Petitioner's position was abolished as part of a cost-saving measure due to fiscal restraints resulting from flooding caused by Hurricane Irene and was experiencing a loss of population as well as a shrinking tax base and had eliminated positions and restructured several County departments by consolidation or separation of functions. To rebut such proof the Appellate Division said that Petitioner was required to prove "that the abolition of [her] position was brought on by bad faith or in an effort to circumvent the Civil Service Law."

Addressing the issue of Schoharie's alleged bad faith, the Appellate Division said "hat issue was squarely addressed and decided by the District Court in its resolution of Petitioner's federal claims." In dismissing the federal claims, grounded upon the same allegations as those underlying the claimed Civil Service Law violations, the District Court "expressly held that the evidence submitted by [Schoharie] established that Petitioner's position was abolished as a cost-saving measure and that there was no evidence to support Petitioner's "self-serving testimony that [Schoharie] acted in bad faith" or in retaliation for Petitioner's change of political party enrollment.

Noting that the doctrine of collateral estoppel "precludes a party from relitigating an issue which has previously been decided against [him or] her in a proceeding in which [he or] she had a fair opportunity to fully litigate the point," regardless of whether the tribunals or causes of action are the same, the Appellate Division observed that the factual issue of bad faith "was raised, necessarily decided and material in the [District Court], and [Petitioner] had a full and fair opportunity to litigate the issue." Thus, said the court, Petitioner is barred by the principles of collateral estoppel from relitigating that issue in the course of her Article 78 action.

In the absence of bad faith, Schoharie's showing of an economic justification for the elimination of Petitioner's position could only be countered by proof that "no savings were accomplished or that someone was hired to replace [Petitioner]." Petitioner, however, did not dispute that the reorganization of her department and the concomitant elimination of her position, resulted in fiscal savings to the County or that Schoharie did not replace her.

Although Petitioner contended that many of her duties that Petitioner had been assumed by another Senior Planner and that Schoharie violated the prohibition in Civil Service Law §61(2) against assigning civil servants to out-of-title work by assigning supervisory responsibilities to that Senior Planner, the Appellate Division found that such work "either falls within the official duties set forth in the Senior Planner job classification or is a reasonable and logical outgrowth of those duties."

Accordingly, the Appellate Division concluded that Petitioner failed to raise an issue of fact in response to Schoharie's showing that its actions "were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency," her petition was properly dismissed by Supreme Court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04612.htm

Considering the employee's personnel history is setting a disciplinary penalty

Considering the employee's personnel history is setting a disciplinary penalty

Brizel v City of New York, 2018 NY Slip Op 03755, Appellate Division, First Department

Educator was served with disciplinary charges pursuant to Education Law §3020-a. The Arbitrator found the teacher, who had a 27-year career with the New York City Department of Education, guilty of misconduct and terminating his employment.

The Appellate Division confirmed the arbitration award, noting that the Educator's career, "was not without incident, as evidenced by his 2008 settlement of disciplinary charges." The court then observed that the Arbitrator "properly considered" an earlier settlement of those charges in setting the disiplinary penalty in this instance. In addition the Appellate Division noted that the Educator failed to acknowledge the gravity of his misconduct, continues to deny wrongdoing, and attempted to shift blame to his students.

Considering an employee's personnel history in setting a disciplinary penalty is permitted provided, as the Court of Appeals held in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470 and Doyle v Ten Broeck, 52 NY2d 625, the individual is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

Further, as the court noted in Shafer v Board of Fire Commr., Selkirk Fire Dist., 107 AD3d 1229, a series of petty offenses by a single individual may have a cumulative impact in the setting of a penalty. In fact, courts have approved the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

In determining the appropriate penalty to be imposed, relevant issues include considering if this is the employee’s first offense of this nature, or is there a pattern of such offenses and had the employee been disciplined or served with disciplinary notice in the past.

In sustaining the Arbitrator's determination as to the penalty to be imposed in this instance, the Appellate Division said that "Under the circumstances presented, the penalty of termination does not shock our sense of fairness," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03755.htm

Arbitration award found "imperfectly executed" vacated

Arbitration award found "imperfectly executed" vacated

Matter of The Professional, Clerical, Tech. Empls. Assn. (Board of Educ. for Buffalo City Sch. Dist.), 2018 NY Slip Op 04128, Appellate Division, Fourth Department

Supreme Court granted the petition submitted by The Professional, Clerical, Technical Employees Association [Association] seeking to confirm an arbitration award and denied the Board of Education for Buffalo City School District's [Board] cross petition seeking a court order vacating the arbitration award.

The Appellate Division unanimously reversed the Supreme Court's ruling, on the law, and vacated the arbitration award, explaining:

1. The arbitration proceeding arose from Board's plan to transfer* certain employees previously assigned to work at a single location to new positions requiring them to alternate between two different work locations.

2. The arbitrator's opinion and award, among other things, found that Board had  involuntarily transferred the Association's grievants "to new positions" in violation of the collective bargaining agreement between the parties, and directed the Board to compensate the grievants "for work performed at more than one location from November 30, 2013 until the end of the 2016 Budget Year."

3. Vacatur of the arbitration award is appropriate where the award failed to set forth the manner of computing monetary damages as CPLR Article 75 provides, in pertinent part, that an arbitration award "shall be vacated" where the arbitrator "so imperfectly executed [the award] that a final and definite award upon the subject matter submitted was not made."**

The court noted that the Board's affidavit in support of the cross petition contained a statement that "none of the affected employees was terminated or had his or her compensation reduced as a result of the allegedly wrongful transfers."

However, said the Appellate Division, the arbitration award does not explain the basis for the arbitrator's directing the Board provide compensation allegedly owed to the grievants, nor does the award detail how that compensation should be calculated. Rather, said the court, "[i]t appears that the arbitrator merely copied verbatim the remedy requested by [the Association] rather than making findings of his own."

Accordingly, the Appellate Division reverse the Supreme Court's order, denied the Associations petition, granted the Association's cross petition, vacated the arbitration award, and remitted the matter to Supreme Court.

In addition, Supreme Court was instructed to then remit the matter to the arbitrator to determine whether any compensation is due the Association's grievants, and, if so, "to determine the amount of such compensation or how it can be calculated with reasonable precision."

* Although the term "transfer" is used to describe the personnel change that resulted in the submission of this grievance, the term "reassignment" would be a more accurate of the personnel change in this instance. A movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority would constitute a "transfer" [see Rules for the Classified Civil Service of the County of Erie, Rule XVI].

** An award is indefinite or nonfinal within the meaning of the statute only if it leaves the parties unable to determine their rights and obligations; if it does not resolve the controversy submitted; or if it creates a new controversy.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04128.htm

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Matter of Kinach v de Blasio, 2018 NY Slip Op 04425, Appellate Division, First Department

The New York City Mayor's Personnel Order No. 2016/1 established certain paid leave benefits and modified a planned salary increase and reduced the amount of annual leave for managers with 15 or more years of experience. In addition, the order provided that, effective December 22, 2015, such New York City personnel subject to the order would be entitled to 30 days paid parental leave (PPL) every 12-month period for the birth of a child, adoption, or foster care.

MPO 2016/1 modified MPO 2015/1 and MPO 2015/2 by eliminating a 0.47% wage increase scheduled to go into effect on July 1, 2017 and modified the annual leave schedule for covered titles by eliminating the accrual of the 26th and 27th annual leave days, capping the accrual of annual leave days at 25 days, in order to fund these benefits.

Petitioners, five managers all over the age of forty (40) and not in a collective bargaining unit within the meaning to Article 14 of the Civil Service Law, advanced a number of challenges MPO No. 2016/1 with respect to the modification of the benefits set out in MPO 2015/1 and MPO 2015/2.

Addressing Petitioners' claims of unlawful discrimination based on age, the Appellate Division held that Petitioners "failed to state a claim of age discrimination" as defined in the Administrative Code of City of NY §8-107, the New York City Human Rights Law or Executive Law §296[1][a] the New York State Human Rights Law and the adverse action alleged by Petitioners did not occur under circumstances giving rise to an inference of discrimination.

The court explained that the Petitioners' claim [a] was based upon the false premise that women over 40 years of age cannot bear children, [b] ignored the fact that PPL benefits were available to biological fathers, regardless of age, who becomes a parent through adoption or by fostering, and [c] was undercut by Petitioners' submission of data reflecting that members of their age group received PPL benefits.

In the words of the Appellate Division, "MPO No. 2016/1 is facially neutral and applies equally to all covered employees, regardless of age ... and no disparate impact has been shown" by Petitioners.

Addressing Petitioners equal protection argument, the court said Petitioners failed to demonstrate any violation of Article 1, §11 of the New York State Constitution as "MPO No. 2016/1 treats all similarly situated employees alike." Further, the Appellate Division found that the State's "non-impairment clause" set out in Article V, §7, of the State Constitution was "not implicated as the challenged action does not involve a change directly related to retirement benefits.

Considering the Petitioners' arguments challenging the "cost-cutting" measures the City elected to use "to pay for the PPL benefit," the Appellate Division held that the method selected by the City was not arbitrary and capricious and, notwithstanding Petitioners' claim that less extreme cost-cutting measures should have been taken, the court explained that such a belief "does not render [the City's] determination irrational."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04425.htm