Vacating arbitration awards

Vacating arbitration awards

West Babylon UFSD v West Babylon Teachers Assoc., 237 A.D.2d 615

Article 75 of the Civil Practice Law and Rules sets out the limited grounds available to a party who wishes to challenge an arbitrator's award. The West Babylon case demonstrates the fact that courts apply the limitations set out in Article 75 quite literally and rarely find overturning or modifying an arbitration award justified.

An arbitrator said that the Taylor Law Agreement negotiated by the West Babylon Union Free School District and the West Babylon Teachers Association required the District give teachers notice of the disciplinary charges filed against them.

Finding that no notice of disciplinary charges had been given to a teacher, Martha Kolodkin, that the District had earlier "demoted," the arbitrator ruled that the District had violated the agreement because it had it demoted Kolodkin "without just cause." The arbitrator's award directed the District reinstate Kolodkin to her former position without back pay.

The arbitrator apparently decided that Kolodkin's demotion constituted disciplinary action within the meaning of the collective bargaining agreement. The District attempted to vacate the award on the grounds that in making the award the arbitrator had exceed his authority by interpreting the agreement. A Supreme Court judge confirmed the award and dismissed the District's petition to set it aside.

The Appellate Division upheld the lower Court's ruling in favor of the Association. In so doing, the Court said that it is well settled that an arbitration award will not be set aside unless it is against public policy, totally irrational or in excess of the arbitrator's powers.

As to the specific objection to the award raised by the District, in this instance the Appellate Division decided that interpreting the collective bargaining agreement between the parties was consistent with the arbitrator's authority.

 In addition, courts do not have jurisdiction to review interlocutory arbitration decisions -- a decision made in the course of an arbitration but which does not constitute a final decision of the whole controversy.

A court's vacating an interlocutory decision by an arbitrator was the subject of an appeal in Local 100, Transport Workers Union v NYS Transit Authority.

In the course of an arbitration between parties, Local 100 said it would not participate at the scheduled hearing unless it received "certain discovery" materials. When the arbitrator directed that Local 100 adhere to the arbitration dates that had already been scheduled, the Local filed an Article 75 action to vacated the arbitrator's order directing it to adhere to the hearing date schedule.

Although the Supreme Court ruled that the arbitrator had no jurisdiction over scheduling matters, the Appellate Division disagreed, reversing that ruling. The Appellate Division said that courts lacked the statutory authority to vacate [an] interlocutory procedural ruling.

Transfer of personnel

Transfer of personnel

Hill v City of New York, NYS Supreme Court, April 1997, Not selected for publication in the Official Reports

The Hill case concerns the survival of benefits enjoyed by individuals who are employed by another employer following the "transfer of function" from their former employer to a new employer. Here the right in question involved a "non-resident's exemption" from having to pay the equivalent of New York City income tax as a term or condition of employment with the City.

The issued arose following the transfer of Emergency Medical Service operations from the New York Health and Hospitals Corporation, a public benefit corporation independent of the City of New York, ("HHC") to the Fire Department of the City of New York ("FDNY").

The City requires that every person seeking employment with it sign a "§1127" agreement. This agreement provided that if an individual is or  becomes a nonresident during his or her employment by the City, he or she would pay an amount equal to the personal income tax otherwise payable by City residents. Although there were certain exceptions, HHC had essentially declined to follow this policy insofar as its employees were concerned.

Following the transfer of the EMS function to FDNY, the City decided that the 3,250 individuals transferred from HHC to FDNY were required to sign a §1127 agreement as a condition of their continued employment by the City.

District Council 37 [DC-37], the EMS personnel's collective bargaining agent, on the other hand, disagreed and filed an improper practice complaint with the City's Office of Collective Bargaining charging that the City's had improperly and unilaterally imposed a new term or condition of employment upon EMS personnel without the Union's agreement.

DC-37 simultaneously commenced an Article 78 proceeding seeking a judgment declaring that the City acted arbitrarily and capriciously in violation of §70(2) of the Civil Service Law and City Charter §1143. It addition, it contended that the City's action was an unconstitutional impairment of contract and a deprivation of property rights in violation of the due process clauses of the New York State and United States Constitutions. DC-37 sought a Court order compelling the City to repay any moneys deducted from the employees' paychecks under color of §1127 and to cease making any further "§1127" deductions.

The Court, citing Legum v Goldin, 55 NY2d 104. commented that the Court of Appeals has ruled that §1127 is not a tax, but an enforceable term and condition of employment with the City acting in its capacity as an employer. The Court of Appeals had decided that "... the [§1127] payments due to the City of New York are owed as a result of the contract entered into by the [employees] with the City and not as a result of an exercise by the City of its taxing authority," .

As to impact of Civil Service Law §70(2), it provides, in pertinent part, that "[u]pon the transfer of a function  ... officers and employees so transferred shall be transferred without further examination or qualification and shall retain their respective civil service classifications and status ... [including] full seniority credit for all purposes for service rendered prior to such transfer in the governmental jurisdiction from which transfer is made."

N.B. Longevity increments were determined by the Court of Appeals to be protected seniority rights [Town of Mamaroneck PBA, Inc. v New York State Public Employment Relations Board, 66 NY2d 722] while in Nickels v New York City Housing Authority, 208 AD2d 203, the Appellate Division held that the phrase "full seniority credit for all purposes" in §70(2) protected involuntarily transferred police officers against any diminution of pension rights.

Here the Court decided that although no additional qualifications were placed on EMS personnel by §1127, the City disregarded their seniority benefits when applying this Charter provision to them. Noting that these individuals had previously been exempted from the requirements of §1127 by HHC, the Court concluded that this exemption constituted a "substantial pecuniary benefit" based on a combination of their status as HHC employees and their many years of service with that agency.

The Court ruled that the individuals transferred to FDNY enjoyed a "protected benefit" and thus the City was arbitrary and capricious when it deprived them of "pecuniary benefit enjoyed for years" merely because of an administrative transfer of functions.

In addition, the Court said that although its ruling will result in non-uniformity in the income taxation of EMS employees based on residence, that has been true in the past and, even if a contrary ruling were issued, non-uniformity would exist as employees hired prior to the enactment of §1127 remain exempt from its provisions.

The full opinion follows:

The central issue in this Article 78 proceeding is whether the City of New York (the "City") acted arbitrarily and capriciously in applying New York City Charter (the "Charter") §1127 to certain previously exempt Emergency Medical Service ("EMS") personnel who were transferred from the New York Health and Hospitals Corporation ("HHC") to the Fire Department of the City of New York ("FDNY").

 The HHC "is a public benefit corporation independent of the City of New York(L 1969, ch 1016, 1 [New York City Health and Hospitals Corporation Act, 4, subd. I])" [Brennan v. City of New York, 59 N.Y.2d 791, 792 (1983)]. See, Unconsolidated Laws 7381 et. seq. Pursuant to that statute, in 1970 the City transferred its municipal hospitals to the HHC.

 §1127 (previously numbered §§820 and 822) adopted on January 4, 1973 provides as follows:

 "a. Notwithstanding the provisions of any local law, rule or regulation to the  contrary, every person seeking employment with the City of New York or any of  its agencies regardless of civil service classification or status shall sign an agreement  as a condition precedent to such employment to the effect that if such person is or  becomes a nonresident individual as that term is defined in §11-1706 of the  administrative code of the city of New York or any similar provision of such code,  during employment by the city, such person will pay to the city an amount by which  a city personal income tax on residents computed and determined as if such person  were a resident individual, as defined in such section, during such employment,  exceeds the amount of any city earnings tax and city personal income tax imposed  on such person for the same taxable period."

 Although the City corporation counsel opined in a 1973 letter that the §was applicable to HHC employees in that HHC was an "agency" of the City, HHC did not then concur with this position and thus did not then apply its provisions to any of its employees.

 In a change of policy, on October 26, 1982 HHC issued a memorandum declaring that the §would be applied to any HHC employee hired on or after November 1, 1982 and to all then current employees who moved out of the City after that date. However, in February 1985 HHC reversed that position with respect to its EMS employees who were hired prior to November 1, 1982 and who subsequently moved outside of the City and it directed a refund of any deductions already imposed on such employees. On April 4, 1989, the HHC issued a further memorandum specifically limiting §1127's impact on Group 12 EMS non-managerial employees and applied the Charter provision only to such employees hired on or after November 1, 1982 who were non-residents on their date of hire or who later moved out of the City. Petitioners, Group 12 nonmanagerial EMS employees hired prior to November 1, 1982, were therefore exempted from §1127 via the April 4, 1989 memorandum and continued to have such exemption until the transfers discussed herein.

 In October 1995 a bill was introduced to amend the Charter to authorize the FDNY to operate an emergency and pre-hospital ambulance system. An October 26, 1995 HHC board of directors resolution authorized its president to effectuate a transfer of the EMS employees to the FDNY. HHC and the City then negotiated the terms and conditions of the change and on January 19, 1996 the parties signed a Memorandum of Understanding to transfer the EMS functions pursuant to Civil Service Law ("CSL") 70(2). Finally, on February 15, 1996 the bill authorizing the transfer was passed by the City Council, and on February 26, 1996 Mayor Guiliani signed the bill as Local Law No. 20 and issued an Executive Order directing the FDNY to assume ambulance and pre-hospital emergency medical service functions on March 17, 1996. On that day the transfer took place and the EMS became the Bureau of Emergency Medical Service of the FDNY and approximately 3,250 HHC employees became FDNY employees.

 On July 15, 1996, District Council 37 filed an improper practice petition with the New York City Office of Collective Bargaining charging that by applying §1127 to petitioners, respondents improperly unilaterally imposed a new condition of employment upon their employ without the Union's agreement. Petitioners simultaneously commenced this proceeding in which they seek a judgment: (1) declaring that the City acted arbitrarily and capriciously and in contravention of law by enforcing §1127 in violation of CSL 70(2) and Charter 1143; (2) declaring that the City's action is an unconstitutional impairment of contract and deprivation of property in violation of the due process clauses of the New York State and United States Constitutions; (3) directing reimbursement of all moneys deducted via enforcement of §1127; and (4) directing the City to cease any further deductions thereunder.

 Petitioners contend that a further qualification was added as a result of the transfer via the imposition of an employment condition under §1127. They also contend that a loss of seniority benefit occurred because they were treated as new employees and thus lost their §1127 exemption in violation of CSL 70(2). Respondents contend that petitioners were not subject to new qualifications as a result of the enforcement of §1127 upon transfer, but were instead only subject to new terms and conditions of City employment which is not protected by §70(2), and that the EMS employees commenced employment with the FDNY without any change in civil service status or seniority and without further qualification.

 The standard of review in this proceeding is whether the determination to enforce §1127 upon petitioners was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" [CPLR 7803(3)]. The "judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body." [Ostrer v. Schenck, 41 N.Y.2d 782, 786 (1977)]. See also, Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974).

 The Court of Appeals has ruled that §1127 is not a tax, but an enforceable term and condition of employment with the City acting in its capacity as an employer, stating that it "is clear beyond cavil that the payments due to the City of New York are owed as a result of the contract entered into by the petitioner with the city and not as a result of an exercise by the city of its taxing authority" [Legum v. Goldin, 55 N.Y.2d 104, 108 (1982)].

 CSL 70(2) provides, in pertinent part, as follows:

 "Upon the transfer of a function (a) from one department or agency of the state to  another department or agency of the state, or (b) from one department or agency  of a civil division of the state to another department or agency of such civil division,  or (c) from one civil division of the state to another civil division of the state, or (d)  from a civil division of the state to the state, or vice versa, provision shall be made  for the transfer of necessary officers and employees who are substantially engaged  in the performance of the function to be transferred ... Officers and employees so  transferred shall be transferred without further examination or qualification and shall  retain their respective civil service classifications and status .... Officers and  employees transferred to another governmental jurisdiction pursuant to the  provisions of this subdivision shall be entitled to full seniority credit for all purposes  for service rendered prior to such transfer in the governmental jurisdiction from  which transfer is made."

 Longevity increments were determined by the Court of Appeals to be protected seniority rights in the interpretation of a town law that was similar to CSL 70(2) because the rights were found to be a "substantial pecuniary benefit related to length of service." [Town of Mamoroneck PBA, Inc. v. New York State Public Employment Relations Board, 66 N.Y.2d 722, 725 (1985)]. In Nickels v. New York City Housing Authority, 208 A.D.2d 203, 212 (1st Dept. 1995), aff'd 85 N.Y.2d 917 (1995), it was held that the phrase "full seniority credit for all purposes" in CSL 70(2) protected involuntarily transferred police officers against any diminution of pension rights.

 In order to ascertain whether petitioners' exemption is a benefit protected upon transfer, we must look to the legislative intent underlying CSL 70(2). " '[A] primary command to the judiciary in the interpretation of statutes is to ascertain and effectuate the purpose of the Legislature' and in 'finding such purpose, one should look to the entire statute, its legislative history and the statutes of which it is made a part'." [Association of Surrogates and Supreme Court Reporters v. State of New York, 78 N.Y.2d 143, 151 (1991), quoting, Rankin v. Shanker, 23 N.Y.2d 111, 114 (1968)]. "The civil service provisions of the Constitution and the statutes ... relating to ... transfers, were intended as a protection for the public, civil service employees, and their individual security" [Nickels v. New York City Housing Authority, supra, at p. 207].

 In Matter of Ganley v. Guiliani, NYLJ, Jan. 16, 1997, p. 29, c. 2, Justice Sklar of this court held that the imposition of §1127 on employees who became New York City Police Department officers when the police departments of the New York City Transit Authority and the New York City Housing Authority were merged into the City Police Department did not violate §70(2). There, relevant officers had never been subject to §1127 because, as opined by the corporation counsel in 1973, neither of said authorities was an "agency" of the City. In ruling that 70(2) was not violated, Justice Sklar stated that the "nonresident tax employment condition is neither a 'further examination or qualification', nor a change in 'civil service classification and status' as those terms are used in the context of the civil service law."

 Although there were no additional qualifications placed on EMS petitioners via the imposition of §1127, this court finds that the City disregarded their seniority benefits when applying this Charter provision to them. Petitioners had previously been granted exempt status by HHC. The exemption is a "substantial pecuniary benefit" based on a combination of petitioners' status as Group 12 HHC employees and their many years of service with that agency. Petitioners' exemption from §1127, as a protected benefit, is supported by the legislature's intention in adopting CSL 70(2) to protect employee rights upon transfer. The guarantee in §70(2) of "full seniority credit for all purposes for service rendered prior to such transfer" includes all financial benefits resulting from years of service. Exemption from §1127 is one of such benefits even though here it only flows to non-residents of the City. It is a pecuniary benefit enjoyed for years by petitioners of which they should not be deprived merely because of an administrative transfer of functions. Thus, while the conclusion herein will result in non-uniformity in the income taxation of EMS employees based on residence, that has been true in the past and, even if a contrary ruling were issued, non-uniformity would exist as employees hired prior to the enactment of §1127 remain exempt from its provisions.

 Contrasted with the police officers in Matter of Ganley v. Guiliani, here the original employer agency had specifically granted the relevant employees an exemption from the imposition of §1127 based on their period of service. It was not, therefore, just a case (as with the police officers) of an inapplicable statute, but rather it was a benefit bestowed as a consequence of being declared exempt by their employer due to seniority. The respondents' actions were accordingly in conflict with law as well as arbitrary and capricious as the application of §1127 to these particular employees is in violation of protections provided by CSL 70(2).

 In light of the foregoing, the court need not consider petitioners' other arguments. Accordingly, a judgment shall be entered declaring that (1) enforcement of §1127 against the EMS petitioners and other similarly situated employees is in violation of CSL 70(2); (2) directing respondents to reimburse petitioners and other similarly situated previously exempt EMS employees for all money deducted pursuant to the enforcement of §1127 from the date of the transfer; and (3) directing respondents to cease any further deductions pursuant to said §from such employees.

 Settle judgment.

Side Letter Agreements to a collective bargaining agreement

Side Letter Agreements to a collective bargaining agreement

NYC Transit Authority v PERB, 232 A.D.2d 492 

§209-a(1)(e) if the Civil Service Law provides that it is an improper employer practice to refuse to continue all the terms of an expired agreement until a new agreement unless the union has violated §210 of the Civil Service Law during or prior to the resolution of such negotiations.

Does the same rule apply with respect to instruments usually described as side letter agreements to a Taylor Law contract? This was the critical issue in New York City Transit Authority v PERB.

The Authority and the Transit Supervisors Organization [TSO] had entered into a "side letter agreement" that provided that TSO would not seek certification as the collective bargaining representative for certain enumerated Transit Authority employees.

Following the expiration of the collective bargaining agreement, TSO filed a petition with PERB asking to be certified as the collective bargaining representative for those enumerated Authority employees. The Authority objected, contending that the side letter agreement precluded TSO from filing such a petition.

PERB rejected the Authority's argument, ruling that the side letter agreement is effective only for the duration of the past collective bargaining agreement to which the side letter agreement corresponds.

The Authority appealed, only to have the Appellate Division affirm PERB's ruling. What was the Court's rationale for upholding PERB?

The Appellate Division said that TSO was not barred by §209-a(1)(e) because that provision only applies to a public employer or its agents and TSO was neither a public employer nor the agent of a public employer.

What is the significance of this ruling? It may be a signal that PERB and the courts will conclude that while an employee organization is not bound by the terms of a side letter agreement once the underlying agreement expires and no successor agreement is in place, §209-a(1)(e) mandates that an employer continue the terms set out in all side letter agreement adopted by the parties until a new agreement is negotiated.

Considering the language of §209-a(1)(e), it may not be possible for an employer to limit the life of a side letter agreement by incorporating by reference the terminal date of underlying collective bargaining agreement.

Seeking to bar arbitration based on "public policy considerations

Seeking to bar arbitration based on "public policy considerations

Sullivan County v Sullivan County Employees Asso., 235 A.D.2d 748

One of the issues in this appeal heard by the Appellate Division concerned Sullivan County's claim that the arbitration of a grievance as demanded by the Sullivan County Employees Association violated of "public policy considerations" and should be stayed.

The Association had demanded arbitration when the County denied a grievance based on the Association's claim that its action modifying a Taylor Law contract with another collective bargaining unit had triggered the "parity clause" in its agreement. The "parity clause" provided that if another bargaining unit negotiated a salary increase, those increases would be operative for employees covered by the agreement.

The Appellate Division said that to invoke a violation of public policy as justification for staying arbitration, "the violation must amount to the equivalent of a gross illegality." Although Sullivan County claimed that "parity clauses" were illegal, the Appellate Division noted that "such clauses are not per se invalid but require a case-by-case analysis."

The Courts indicated that the matter was not yet ripe for judicial consideration, commenting that if "the arbitrator's interpretation of the agreement may offend public policy, such a potential does not mandate a stay of arbitration." Rather, said the Court, if that turns out to be the case, the remedy is vacatur (reversal) of the award.

Politically motivated termination

Politically motivated termination

Martin Gordon, et al., v County of Rockland, US Circuit Court of Appeals, 2nd Circuit, 110 F.3d 886

Allegations that an employee was dismissed because of political affiliation -- or lack thereof -- has generated many law suits.

The Gordon case is instructive because it sets out the views of the U.S. Court of Appeals for the Second Circuit, which includes New York State, concerning the standards to be applied in determining if a politically motivated termination violates the constitutional rights of the individual. 

The case arose after Rockland County fired three Assistant County Attorneys -- S. Martin Gordon, Eric Ole Thorsen, and Joel J. Flick. Alleging that their terminations violated their First Amendment rights to political affiliation, the three sued in an effort to win reinstatement to their former positions. A U.S. District Court jury ruled in their favor and the County appealed.

The U.S. Circuit Court of Appeals found an error in the lower court's procedure and initiated a de novo  review of the constitutionality of the dismissals. A review de novo is, in effect, "a new trial" of the matter.

The key issue was whether or not the Rockland County attorneys' were sufficiently non-political to entitle them to First Amendment protection from partisan political termination.

Courts, including the U.S. Supreme Court, have ruled that certain policy-making and confidential employees are exempt from First Amendment protection and can be lawfully fired because of their political beliefs.

Two seminal cases on the legality of politically motivated dismissals are:

1. Elrod v Burns, 427 US 347. In Elrod the U.S. Supreme Court concluded that the politically motivated dismissals of employees in the Cook County (Illinois) Sheriff's Office was an unconstitutional interference with the employees' First Amendment freedoms of political belief and political association because the individuals terminated were not incumbents serving in "policymaking positions;" and

2. Branti v Finkel, 445 US 507. The high court said that the exemption allowing politically motivated dismissals extended to confidential employees as well as policymakers. But because Branti was neither a policymaker nor a confidential employee, he was entitled to First Amendment protection. The high court said that in evaluating whether it is permissible to dismiss an employee on the basis of political affiliation, "The focus ... should be not on the policymaking aspect of a plaintiff's employment, but rather on whether "party affiliation is an appropriate requirement" for effective job performance.

In the Rockland case, the Circuit Court of Appeals examined the nature of the attorneys' jobs and whether or not party affiliation was an appropriate requirement for job performance.

The Court considered whether its assessment of job duties should be based on the men's written job descriptions or the duties actually performed. Citing several supporting decisions, the Circuit Court said the assessment should be based on the power vested in the individual by law and the power which is inherent in the office. In other words, the job description is what counts in determining whether an employee has First Amendment  protection against politically motivated dismissals.

Gordon specialized in real property law, and handled Sewer Commission affairs;  Thorsen provided general legal services to the Highway Department and gave legal advice to the County's Planning and Parks Agencies; and Flick was an attorney in the Office of Community Development who advised municipal governments within the County as to whether their actions were in compliance with federal law.

The Court found all three positions encompassed serving as a legal advisor to a particular segment of county government, and representing the County in that capacity. This suggested they were policy-makers. The Court also analyzed whether the jobs were inherently political, using these questions as tests:

a. Is there  rational connection between shared ideology and job performance?

b. Is the employee in an exempt position and thus not subject to "civil service protection" under §75 of the Civil Service Law? [The Court cautioned that it does not presume employees are not entitled to First Amendment protection just because they are exempt from civil service protection. Also, it should be remembered that §75 covers many public employees serving in exempt or noncompetitive class positions who are honorably discharged veterans who served in time of war or who are certified as "exempt volunteer firefighters."]

c. Does the individual exercise technical competence or expertise that permits them to make independent judgment on policy matters?

d. Does the individual control or supervise others?

e. Is the individual authorized to speak in the name of policymakers?

f. Is the individual is perceived as a policymaker by the public?

g. Does the individual influence government programs?

h. Does the individual have contact with elected officials?

i. Is the individual responsive to partisan politics and political leaders?

The Court said a factor supporting a ruling that the three were protected by the First Amendment was that each was not in charge of a large group of employees. But, the Court also noted, Gordon, Thorsen, and Flick all had technical competence or expertise and each was a consultant to a specific policymaking board. Also influencing the decision was the Court's view that "the Legislature, which has perhaps the best knowledge of the responsibilities involved in the positions it created, designated these positions both as 'policymaking' and as exempt from civil service status." Of primary importance to the Court in resolving the issue, however, the fact that each of the three attorneys was empowered to act and speak on behalf of a policymaker, especially an elected official.

Editor's Note: Another aspect of the Rockland County case concerned the fact that the County Attorney was not elected but rather appointed by the Legislature, which is itself elected.

In the words of the Court, "all three plaintiffs advised the Legislature or Commissions set up by the Legislature or County Executive, both of which are elected." The Court concluded that each of the attorney's "advice to and representation of top policymaking officials in the County" justified their dismissal for political reasons.

Why? The Court said that "it is difficult to fathom how such responsibilities can be undertaken and done well without their "political or social philosophy [making] a difference in the implementation of programs."

Although the three attorneys contended that did not make policy, the Court concluded that this factor was outweighed by the evidence that they can act in the stead of the County Attorney. Further, the Court said that their claim that they "only gave legal advice" had been earlier rejected as justification for an employee coming within the Branti exception, citing the Third Circuit's ruling in Ness v Marshall, 660 F2d 517.

In Ness the Circuit Court decided that the positions of City Solicitor and Assistant City Solicitor were not protected by the First Amendment despite the solicitors' argument that they performed only "purely technical legal work." The Court said that the duties the solicitors could perform -- "rendering legal opinions, drafting ordinances, [and] negotiating contracts -- define a position for which party affiliation is an appropriate requirement."

A fair conclusion, according the Gordon ruling, is that these Assistant County Attorneys, "because of the discretion with which they are charged, and because of their authority to act on behalf of the County, are politically accountable to the Legislature and the County Executive such that their loyalty helps ensure that the mandate of the electorate is effectively carried out." The Court reversed the jury's decision in Gordon, Thorsen, and Flick favor, holding the three exempt from First Amendment protection against politically motivated dismissal.

Out of title work

Out of title work

Rausch v Pellegrini, 237 A.D.2d 771 

Muzzillo v Mt. Vernon Civil Service Commission, 238 A.D.2d 425

Muzzillo v Mt. Vernon City School District, 238 A.D.2d 424

From time to time an employee will complain that he or she is performing out-of-title work. Typically an individual who is working out-of-title, except in situations constituting a "temporary emergency," must be compensated at the appropriate salary or grade level or the out-of-title work assignment discontinued. The Rausch and Muzzillo cases involve allegations of out-of-title work.

       The Rausch Decision

To handle out-of-title work complaints expeditiously, the collective bargaining agreement between the State of New York and the Civil Service Employees Association includes a grievance procedure for resolving out-of-title work complaints.

Henry Rausch, an employee of the State Department of Correctional Services [DCS], complained that although he was being paid the salary of a Correctional Facility Food Administrator I [FFA I], as the result of a reorganization of DCS's food service system he was actually performing the duties of an FFA II. He filed an out-of-title work grievance, contending that he should be paid at the salary grade of the higher level position.

Rausch's grievance was ultimately rejected by the Governor's Office of Employee Relations on the grounds that his duties had been modified in connection with the reorganization of the food service operations in Correctional Services. He brought an Article 78 action challenging the administrative decision denying his grievance.

A State Supreme Court judge annulled the administrative determination, holding that Rausch had been required to perform out-of-title duties and the State, in turn, appealed.

Commenting that assignment of out-of-title work, other than on an emergency basis, is clearly prohibited by the Civil Service Law §61.2, the Appellate Division affirmed the lower court's ruling.

§61.2 provides that "no person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position" in accordance with the Civil Service Law and the rules adopted thereunder.

Although the State contended that Rausch's duties had been modified and thus he could not be viewed as working out-of-title, the Appellate Division essentially found that Rausch was performing the duties that had been the responsibility of his former supervisor, a Correction Facility Food Administrator II, [FFA II].

The decision notes that while an FFA I is responsible for food service operations for an assigned shift, Rausch was made responsible for all food service operations at the Greene Correctional Facility, duties typically those of an FFA II, after his former supervisor was reassigned to another facility in 1991.

The Court concluded that the extension of Rausch's duties to encompass responsibility for the entire food service operation at the facility, i.e., responsibility for all food service on all shifts, seven days a week, constituted out-of-title work.

      The Muzzillo Decisions

Muzzillo and three co-workers, employed as stenographers by the Mt. Vernon City School District, complained that they were performing out-of-title work. The Mt. Vernon Civil Service Commission agreed, ruling that the duties the four were assigned justified the reclassification of their respective positions to senior stenographer.

When the District declined to reclassify their respective positions, Muzzillo and her co-workers sued.

In one action Muzzillo sought a court order directing the District to comply with the Commission's determination and reclassify their positions to Senior Stenographer or, in the alternative, to desist from requiring them to perform out-of-title work. In a second action, Muzzillo attempted to obtain a court order compelling the Commission to "enforce its determination" regarding the reclassification of their respective positions.

The Appellate Division sustained lower court rulings dismissing the petitions in both actions.

As to their law suit against the District, the Appellate Division found that the School Board, by resolution, had directed the District "to cease and desist from using [the stenographers] to perform duties inappropriate to their title." This would appear to have provided appropriate redress concerning the issue of District's assigning "out-of-title work" to the stenographers.

However, even if the Board's action did not resolve the matter to the satisfaction of the four, the Appellate Division ruled that their complaint was properly dismissed by the lower court. The Appellate Division commented that the four had failed to exhaust their administrative remedy, noting that they had not "availed themselves of the grievance procedure set forth in their collective bargaining agreement."

As to the action brought against the Civil Service Commission, the Appellate Division ruled that the School Board had acted appropriately by adopting a resolution directing the District to refrain from having the four stenographers perform out-of-title work.

The Appellate Division said that Muzzillo failed to show that the Commission is under a legal duty to enforce compliance with its determination that the four were performing senior stenographer duties. In other words, the Commission did not have any obligation to require the District to reclassify the positions merely because it found that the incumbents had been assigned to perform out-of-title work.

Although the School Board could have elected to provide for such reclassification, the Court action signals its view that discontinuing the assignment of out-of-title work is an appropriate alternative to reclassification of the positions.

The Appellate Division commented that although the Commission had urged the Board to reclassify their positions to senior stenographer, it was not required to compel the District to do so. In this regard, the Commission could exercise its discretion as to the action it would take to resolve the matter. In other words, the Commission had no legal duty to compel the reclassification of the positions in question and the fact that the School Board had acted to bar future out-of-title work constituted an appropriate resolution of the complaint.

On another point, Muzzillo had cited §§100.1.a and 102.3 of the Civil Service Law in support of her efforts to have the Commission act. §100.1.a deals with the certification of payrolls and bars the payment of salary or compensation were the responsible commission determines that an individual has been employed in violation of law. §102.3 authorizes the appropriate commission to sue to enjoin "any violation of the Civil Service Law."

Assuming, without deciding, that these provisions are relevant in these cases, apparently the Appellate Division decided that the action by School Board to prohibit further out-of-title work by the stenographers resolved the underlying issues involved.

Off duty misconduct

Off duty misconduct

People v Latanya Gray, et al., 172 Misc.2d 14

Latanya Gray, a New York City police officer, together with two co-defendants, was charged coercion, grand larceny and bribe receiving.  The three were accused of soliciting and receiving $3,000 in exchange for the promise that Gray would rescind an assault report she filed against an business owner named Daniel Leon.

Allegedly Gray had a dispute with Leon. Gray, who was not in uniform and who was not on duty at the time, summoned the police. When uniformed officers arrived at the scene, Gray told them that she was a police officer and that she wanted the officers to arrest Leon; the officers complied.

According to the ruling, when Gray was released from jail he was contacted by Andrew Johnson, Gray's cousin. Johnson allegedly said that Gray would be willing to "drop" the assault charge if Leon paid her $5,000. After some negotiation, Johnson and Leon agreed upon $3,000 as the price for dropping the charge. Later that day, Leon contacted detectives with the Internal Affairs Bureau of the New York City Police Department and enlisted their aid in the matter.

Leon gave $3,000 to Marion Kennedy while Gray was standing nearby during the exchange. The transaction was monitored by agents of the Internal Affairs Bureau, who arrested Gray and Kennedy at the scene immediately following the exchange.

Gray argued that the criminal charges filed against her were not "legally sufficient" because the charges all related to conduct "as a public servant" or "related to" or "in the nature of" her official office. She and her co-defendants contended that her agreeing to drop a complaint she made as a civilian does not render her criminally liable for the crimes with which she is charged.

The Court said that the basis for all of the charges was the abuse of power by a public servant in performing (or failing to perform) a function relating to his or her office. The judge rejected Gray's  argument that her act of making a complaint as a private citizen, then allegedly offering to withdraw that complaint in exchange for just compensation for the injury she suffered, does not constitute any of the crimes charged in the indictment.

According to the decision, "the evidence portrays Gray not as a victim seeking fair recompense, but as a manipulator and conniver who abused her authority as a police officer to coerce the complainant to pay her money because she was dissatisfied with his services. 

In addition, the Court said that the qualification urged by the Gray -- on duty status versus off-duty status -- is a distinction without a difference.

According to the Court, "[W]hile technically off-duty, in a sense, a police officer is on duty 24-hours a day. Off-duty police officers carry revolvers and are expected to and do respond to emergencies occurring in their presence whether on or off-duty."

In addition, the decision notes that courts have found that Civil Service Law §75 does not preclude imposition of discipline on a civil servant who is guilty of misconduct during off-duty hours.

Light duty assignments

Light duty assignments

Paeno v McCall, 235 A.D.2d 766

In Paeno the Appellate Division considered the impact of light duty assignments on an application for accidental disability retirement.

In December 1990 firefighter Joseph J. Paeno was injured at work. In 1992 Paeno was ordered back to work and given a "light duty" assignment. In November 1992 he filed for both accidental and performance of duty disability retirement, contending that he was unable to perform even light duty work. Both applications were rejected.

The significant issue in this decision relates to the standard to be used by the Comptroller in evaluating an application for disability retirement.

Here the Court decided that the Comptroller was not required to determine if Paeno was physically incapacitated from performing his normal duties. Rather the Comptroller was free to [and correctly] determine that the evidence failed to establish that Paeno could not perform the light duty assignments required.

The Appellate Division commented that new regulations of the Comptroller setting out new standards for evaluating disability applications were not in effect at the time the Comptroller made his determination. The Court also pointed out that the regulations were not applicable retroactively.

These  new regulations are found in 2 NYCRR 364. They provide the criteria to be used by the Retirement System insofar as the Systems considering the demands of the position in processing  an application for accidental or duty disability retirement.

Under the regulations, the System may require the employer to provide a written statement that accurately describes the actual duties performed by the applicant, together with a description of the relevant physical and, or, psychological requirements of the position. Significantly, §364.2 provides that the employer is not simply to provide the official Civil Service job description for the title of individuals if the applicant's duties and the applicant's  actual duties and the relevant job requirements are not accurately recited in the official Civil Service job description. [2 NYCRR 364.2]

Another element in the evaluation is that §364.3(a) of the regulations provides that if the applicant has been performing light, limited or restricted duties for less than two years prior to the date of his or her application for disability retirement benefits, the Retirement System will evaluate the applicant's ability to perform the job requirements of his or her regular, full duty assignment performed immediately prior the light duty assignment.

In contrast, if the applicant has been continuously assigned to light, limited or restricted duties for at least two years prior to the date of his or her application for disability retirement benefits, the evaluation is to be based on the written description of the duties and/or physical or psychological job requirements provided by the employer describing the light duty assignment.

Where, however, the applicant has performed at least 100 hours of paid overtime while on light duty during any twelve month period within the two year period prior to the filing of his or her application for disability retirement, the Retirement System will make its determination concerning on the issue of permanent incapacity on the basis of the applicant's ability to perform his or her light duty assignment.

What is the bottom line?

Under the regulations, where an individual is performing a light duty assignment at the time he or she applies for accidental or duty disability retirement benefits, the Retirement System will determine the issue of permanent disability based on:

 a. the individual's full duties of his or her position where the applicant has performed light duty for less than two years; or

b. if the applicant has performed a light duty assignment for more than two years, the issue of permanent disability will be resolved in consideration of the applicant's  actual light duty assignment.

Police officer dismissed after presenting and using false identification for self-identification

Police officer dismissed after presenting and using false identification for self-identification

Ildefonso v Bratton, 238 A.D.2d 142

One of the disciplinary charges filed against New York City police officer Gilberto Ildefonso alleged that he had brought a dog -- the precinct "mascot" -- to the ASPCA, presumably to be put to sleep. Ildefonso was accused of giving the ASPCA a false name, a false badge number and a false precinct. He also was charged with lying about the origin of the dog in documents he gave to the ASPCA concerning the animal.

Why did Ildefonso use false identification and misstate the facts? According to the Appellate Division, he did so in order "to avoid a potential unpleasantness concerning the fellow officer who owned and cared for this precinct mascot."

Found guilty, the Commissioner of Police dismissed Ildefonso from the force. The Appellate Division upheld the termination.

What was the Appellate Division's rationale in upholding the penalty imposed?

The Court said that "even if one were favorably disposed toward [Ildefonso] in connection with the other charges, the critical fact remains that [Ildefonso] lied with respect to matters of self-identification particularly important to police work and integrity."

The Appellate Division said courts give "great leeway" to the Commissioner's determination in disciplinary matters. It said that the Commissioner's decision was entitled to such great leeway in matters of police discipline and punishment because the Commissioner, and not the courts, is accountable to the public for the integrity of the Department."

Eligibility for GML 207 benefits

Eligibility for GML 207 benefits

Dearman v City of White Plains, 237 A.D.2d 603

Although William H. Dearman, a White Plains firefighter, was approved for accidental disability retirement benefits by the Police and Fire Retirement System, White Plains denied Dearman's application for General Municipal Law §207-a benefits. Dearman sued, seeking a court order compelling the City to pay him §207-a supplemental benefits.

The Appellate Division ruled that Dearman's petition was untimely, having been filed more than four months after the City had made its "final determination." Of greater significance, however was the Appellate Division's observation that the lower court was incorrect in viewing Dearman's action to be in the nature of mandamus to compel the City to perform a statutory duty.

According to the decision, the City is allowed to make its own determination as to whether Dearman was entitled to §207-a benefits and the Retirement Systems determination granting Dearman §363 disability benefits did not preclude the City from finding him ineligible for §207-a benefits. The Appellate Division noted the Court of Appeals' decision in Cook v City of Utica, 84 NY2d 833 concerning this point.

Duty of fair representation

Duty of fair representation

Ponticello v County of Suffolk, 225 A.D.2d 751

Joseph Ponticello filed a grievance. When the grievance was denied by Suffolk County, Ponticello asked his union, the Association of Deputy Sheriffs and Correction Officers, to demand arbitration. The union refused to demand arbitration and Ponticello sued the County, seeking a judgment confirming his right to arbitration under the collective bargaining agreement.

In reversing a State Supreme Court judge's ruling in Ponticello's favor, the Appellate Division addressed an number of issues concerning a union's duty of fair representation and the right of a member of the bargaining unit to pursue "self-help" should the union decline to proceed with the arbitration of a grievance.

The Appellate Division ruled that in order for Ponticello to prevail, he had to prove that the union's action constituted discrimination, arbitrariness or invidious or hostile treatment. The decision makes the following points regarding an employee's right to demand arbitration if the union elects not to do so:

1. If an employer and an union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract.

2. A union is not required to pursue arbitration in every grievance filed by a member of the negotiating unit and its failure to demand arbitration is not, standing alone, a breach of its duty of fair representation.

3. An employee may demand arbitration or sue the employer directly only if the collective bargaining agreement allows an employee to bring such an action or if the union breaches it duty of fair representation.

The Appellate Division found that the collective bargaining agreement gave the Association full control of which grievances may be submitted to arbitration. As Ponticello failed to establish that the Association had breached its duty of fair representation, he had no standing to sue the County.

Editor's Note: In Alston v Transport Workers Union of Greater New York, the Appellate Division pointed out that an amendment to the Civil Practice Law and Rules [Chapter 467, Laws of 1990], reduced the statute of limitations for bring an action against a union for breach of its duty of fair representation from six years to four months [§217(2)(a), CPLR]. The four months period commences to run from the date on which the employee knew or should have known that the breach had occurred or the date the employee suffers actual harm, whichever is later.

Drug tests for elected office

Drug tests for elected office

Chandler v Miller, Governor of Georgia, US Supreme Court, 520 U.S. 305

A Georgia statute requires candidates for designated state offices to certify that they have taken a urinalysis drug test within 30 days prior to qualifying for nomination or election and that the test result was negative. Libertarian Party candidates sued, arguing that the law violated their Fourth Amendment protection against unreasonable search.

The U.S. Supreme Court, in an opinion by Justice Ginsburg, decided that the Georgia law was unconstitutional because it failed to overcome the general principle that a search is justifiable only in the event of individualized suspicion. The Court said that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.

While there are a number of "particularized exceptions" to this main rule based on "special needs, beyond the normal need for law enforcement," the Supreme Court said that  "when such "special needs" - concerns other than crime detection - are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties," referring to its ruling in Von Raab, 489 U S at 665-666.

Georgia, the Court decided, failed to show a special need sufficient to override an individual's privacy interest or sufficiently vital to its interests to justify suppressing the Fourth Amendment's normal requirement of individualized suspicion for requiring an individual submit to testing for illegal drugs.

Holding that Georgia's requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches, the high court reversed the Eleventh Circuit's ruling upholding the statute. The ruling is consistent with decisions by New York State courts that, except where a negotiated agreement or statute authorizes or requires random drug testing, a public employer must have reasonable cause or justified suspicion to require an employee to take an involuntary drug test.