Footage at issue captured by a body-worn-camera held not a "personnel record" within the meaning of §50-a of the Civil Rights Law

Footage at issue captured by a body-worn-camera held not a "personnel record" within the meaning of §50-a of the Civil Rights Law

Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 2019 NY Slip Op 01170, Appellate Division, First Department

Pursuant to New York State's Civil Rights Law §50-a, the personnel  records  of sworn police  officers used   to   evaluate   performance  with respect to an officer's continued employment or promotion "shall be considered confidential and not subject to inspection or review  without the express written consent of the police officer except as may be mandated by lawful court order."*

The Patrolman's Association of the City of New York [PBA] challenged New York City's [City] public release of police department body-worn-camera footage without a court order or the relevant officer's consent. Supreme Court denied the PBA's motion for a preliminary injunction on the grounds that the PBA "could not maintain this hybrid action because there is no private right of action under Civil Rights Law §50-a."

PBA appealed the Supreme Court's ruling. The Appellate Division unanimously affirmed the result of the lower court's decision, the release of the camera footage to the public could not be suppressed, but for a significantly different reason.

The Appellate Division agreed that although §50-a does not provide a private right of action, this does not serve to preclude review of the PBA's request for injunctive relief in an Article 78 proceeding "because the statute creates protected rights (for police officers) and does not explicitly prohibit a private right of action or otherwise manifest a clear legislative intent to negate review." However, said the court, PBA's petition must be denied because body-worn-camera footage at issue does not constitute a personnel record within the meaning of §50-a.

The Appellate Division explained that in order to determine whether something is a "personnel record" within the meaning of §50-a of the Civil Rights Law, the threshold question is to determine whether the documents are "of significance to a superior in considering continued employment or promotion." In this instance the court decided that "given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a" but rather satisfies other key objectives of a body camera program such as "transparency, accountability, and public trust-building."

Citing  Matter of Prisoners' Legal Servs., 73 NY2d 26, the Appellate Division noted that the Court of Appeals has held that, in the context of a FOIL disclosure of an officer's personnel records, preventing such disclosure requires more than merely demonstrating that the document "may be used" to evaluate performance.

Rejecting the PBA's argument that "the body-worn-camera was designed in part for performance evaluation purposes and is clearly 'of significance' to superiors in considering employment or promotion" and a finding that body camera footage "is not a personnel record" would result in an unprecedented invasion of privacy, the Appellate Division explained that "given its nature and use," the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a. The footage here, said the court, is more in the nature of an arrest or stop report, "not records primarily generated for disciplinary and promotional purposes."

In the words of the Appellate Division, "[a]lthough the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes."

* The provisions of Civil Rights Law §50-a also extend to a sworn officer in a sheriff's department, a firefighter, a firefighter/paramedic, a correction officer or peace officer serving with a department of corrections and community supervision or a probation department except as may be mandated by lawful court order.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01170.htm

Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service

Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service

Sokol v New York City Civ. Serv. Commn., 2019 NY Slip Op 01314, Appellate Division, First Department

The New York City Civil Service Commission determined that Plaintiff, a candidate seeking appointment as a New York City police officer, was not qualified for the position. Supreme Court dismissed Plaintiff's CPLR Article 78 action challenging the Commission's decision and Plaintiff appealed.

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's Article 78 action. Citing Matter of Smith v City of New York , 228 AD2d 381,  the court explained that "Wide discretion is afforded to civil service commissions in determining the fitness of candidates," and "[t]he exercise of that discretion is to be sustained unless it has been clearly abused."

Noting that Plaintiff had not shown that the Commission's decision disqualifying Petitioner for appointment to the position of police officer was arbitrary and capricious or made in bad faith. Rather, said the Appellate Division, the Commission's determination was rationally based on a number of factors, including, but limited to, Plaintiff's making inaccurate relevant statements in application forms.

§50.4 of the Civil Service Law provides that the State Civil Service Department and appropriate municipal civil service commissions may refuse to examine an applicant, or after examination to certify an eligible for appointment for a number of reasons, including, but not limited to, having been found to lack any of the established requirements for admission to the examination or for appointment to the position or having been found to have intentionally made a false statement of any material fact in his or her application.

No person, however, may be disqualified pursuant to §50.4 unless he or she has been given a written statement of the reasons such disqualification and allowed to submit an explanation and to submit facts in opposition to such disqualification.*

In addition, §50.4 authorizes the review of the qualifications and background of an eligible after he or she has been placed on an eligible list or has been appointed to a position from an eligible list and further provides:

 1.  An individual may be disqualified for the position to which he or she has been appointed "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification," or "upon a finding of illegality, irregularity or fraud of a substantial nature in his [or her] application, examination or appointment," and

 2. The Civil Service Department or the responsible municipal civil service commission may "revoke such eligible's certification and appointment and direct that his [or her] employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud."

* In Mingo v Pirnie, 55 NY2d 1019, the Court of Appeals noted that no §50.4 hearing is required where the individual is advised of the reasons for the proposed action and given an opportunity to submit a written explanation and exhibits contesting his or her disqualification or termination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_01314.htm

San Francisco using algorithm to wipe out Marijuana convictions

San Francisco using algorithm to wipe out Marijuana convictions

By Christopher Coble, Esq. 

Mr. Coble's article is posted on the Internet at:

https://blogs.findlaw.com/legally_weird/2019/02/sf-using-algorithm-to-wipe-out-weed-convictions.html?DCMP=cons_top:nwl

Emoji evidence is more than a thing

Emoji evidence is more than a thing

By William Vogeler, Esq. 

Mr. Vogeler's article is posted on the Internet at: https://blogs.findlaw.com/strategist/2019/02/emoji-evidence-is-more-than-a-thing.html?DCMP=cons_top:nwl

An ambiguity in a provision in a collective bargaining agreement may sometimes be resolved by waiving the parol evidence rule

An ambiguity in a provision in a collective bargaining agreement may sometimes be resolved by waiving the parol evidence rule

Baff v Board of Educ. of The Fonda-Fultonville Cent. Sch. Dist., 2019 NY Slip Op 01476, Appellate Division, Third Department

Certain retired teachers [Plaintiffs], previously employed by Fonda-Fultonville Central School District, were  members of Fonda-Fultonville Teachers' Association. Between 1976 and 2013 the District and the Association, here collectively the "Defendants", had entered into various collective bargaining agreements [CBAs] that set forth terms and conditions of employment including, among other things, retiree health insurance coverage and benefits. 

The relevant provisions in the several CBAs provided that Plaintiffs' health insurance benefits would be continue in retirement "on the same basis as they have in the past." In 2013, however, Defendants changed Plaintiffs' health insurance coverage and benefits, resulting in, among things, increased costs and expenses and changes in coverages. Plaintiffs commenced a combined CPLR Article 78 proceeding and declaratory judgment action seeking, among other things, a court order declaring that they were entitled to a continuation of the same health insurance benefits that they had been receiving at the time they retired.

Supreme Court dismissed a number of Plaintiffs' causes of action and only the declaratory judgment and breach of contract causes of action survived. Plaintiffs and Defendants, respectively, moved for summary judgment on these causes of action. Supreme Court denied both Plaintiffs' motion and Defendants' cross motion for summary judgment and they, respectively, appealed and cross-appealed* the court's rulings.

As framed by the Appellate Division, the dispute here centered on the phrase, "on the same basis as they have in the past." Opining that the phrase was "susceptible of different constructions and capable of being understood in more than one sense," and thus it could be viewed as ambiguous, the Appellate Division concluded that it was "a threshold question to be resolved by the court."  Accordingly, said the court, "Supreme Court correctly resorted to parol evidence**to resolve the phrase's ambiguity."

Plaintiffs had submitted affidavits attesting "it was understood" that the Defendants would continue to provide the same health insurance benefits that employees had been receiving when they retired until their deaths. Plaintiffs involved in the collective bargaining process also represented that in the course of negotiations [1] "it was understood that the health insurance benefits for retirees would not be limited in any way" and [2] such benefits would "continue for the retirees' respective lifetimes." Further, one of these Plaintiffs stated that "when there was a switch in health providers, such change applied only to current teachers and not to retirees."

On the other hand, a former school superintendent who was involved in the negotiations of the CBAs and a business administrator for the district each submitted affidavits indicating that that [1] the phrase in dispute meant that "the percentage that each plaintiff contributed during his or her last year of teaching would be the same throughout retirement" and [2] that the district was not precluded from changing health plans. The business administrator also stated that there was a prior change resulting in an increased deductible for Plaintiffs and that Plaintiffs had not then objected to that change.

In consideration of these different contentions, the Appellate Division concluded that the record discloses a triable issue of fact as to the parties' intentions regarding Plaintiffs' health insurance coverage during retirement and that Supreme Court's denial of Plaintiffs' motion for summary judgment was proper.

* The Appellate Division noted that although Defendants indicated it was withdrawing its cross motion, the necessary steps had not been taken to formally do so.

** The rule against the use of parol evidence typically prevents the introduction of evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or differ from the contractual terms of a written contract. The Appellate Division held that Supreme Court was correct in not applying the rule in this instance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01476.htm

Notice of the final administrative decision must be unambiguous and properly delivered in order to triggering the running of the statute of limitations for bringing an Article 78 action

Notice of the final administrative decision must be unambiguous and properly delivered in order to triggering the running of the statute of limitations for bringing an Article 78 action

Stack v City of Glens Falls, 2019 NY Slip Op 01286, Appellate Division, Third Department

The City of Glens Falls [City] served disciplinary charges upon one of its employees [Appellant]. The hearing officer had found Appellant guilty of two disciplinary charges and recommended termination as the penalty to be imposed. 

At a special meeting on October 3, 2016, the City's Common Council adopted the hearing officer's findings and imposed the recommended penalty of termination on Appellant. Subsequently a letter was sent to Appellant by the City's Mayor on October 11, 2016 reporting the Common Council's action. When Appellant filed an Article 78 petition in Supreme Court challenging the City's determination on February 10, 2017, the City moved to dismiss Appellant's petition as time barred.* Supreme Court grant the City' motion and Appellant appealed the ruling to the Appellate Division.

The Appellate Division reversed the lower court's ruling. Noting that a special proceeding such as the one brought by Appellant "must be commenced within four months after the determination to be reviewed becomes final and binding in its impact upon a petitioner", the court explained that the party asserting the statute of limitations defense must establish that clear notice of the determination was given to the petitioner "more than four months prior to" the commencement of his or her Article 78 proceeding. Further, any ambiguity in the communications claimed have constituted such notice "must be resolved in favor of the petitioner."

The Appellate Division's decision states in this instance neither the Appellant, who had been suspended without pay pending the outcome of the disciplinary proceedings, nor Appellant's attorney, received any notification of the City's determination. After learning from a newspaper reporter that the Common Council had held a special meeting on October 3, 2016 to consider the hearing officer's report and recommendation regarding the disciplinary action taken against Appellant, Appellant's attorney demanded to know Appellant's status. The City provided a newspaper article that described the determination and quoted Appellant's counsel as promising legal action.

In the words of the Appellate Division, "the confusion of [Appellant] and her counsel is evident in their emails during this period, with [Appellant] noting on October 7, 2016 the 'odd' absence of any 'word from City Hall about [her] status' and [her] counsel complaining to [the City Attorney] on October 11, 2016 that the City had still not provided 'any notification' of the determination and demanding to know [Appellant's] status." Appellant, in an affidavit, stated that "she was befuddled by [the City's] silence and did not realize that she had been terminated as of October 3, 2016 until she received the October 11, 2016 letter" from the Mayor.

The Appellate Division ruled that Appellant did not receive an "unambiguous" and "certain" final determination that would trigger the running of the statute of limitations for perfecting the filing of a CPLR Article 78 action until October 11, 2016. Accordingly, the Appellate Division said that what has been demonstrated is "uncertainty caused by [the City's] inaction that must be resolved against [the City]."

Finding that Appellant commenced this proceeding less than four months after receiving clear notice of the City's determination as reflected in the Mayor's letter dated October 11, 2016, the Appellate Division held that Appellant's Article 78 action was timely filed. Reversing the Supreme Court's decision on the law, the matter was remitted to the lower court to permit the City to serve an answer on Appellant within 20 days of the date of the Appellate Division's decision.

* As a general rule a statute of limitations for bringing a timely action begins to run when the party receives oral or written notice, or when the party knows or should have known, of the adverse determination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_01286.htm

Some procedural consideration relevant to efforts to vacate an arbitration award

Some procedural consideration relevant to efforts to vacate an arbitration award

Yates v County of Nassau, 2019 NY Slip Op 01219, Appellate Division, Second Department

The employee [Respondent] in this action was terminated from his position with the County of Nassau [Nassau]. He filed a grievance challenged his dismissal pursuant to a collective bargaining agreement between Appellant and the Civil Service Employees Association and the matter proceeded to arbitration. The arbitrator [1] issued an "opinion and award" in 2013 and [2] about a year later issued a "final award" and [3] ultimately issued a "consent award" dated July 15, 2015.

In February 2017 Respondent initiated this CPLR Article 75 proceeding in an effort to vacate the final award and to "reopen" the 2013 opinion and award.* Nassau moved to dismiss Respondent's Article 75 petition, arguing that the proceeding was time-barred. The Supreme Court denied Respondent's petition, dismissing the proceeding as time-barred. Supreme Court, however then confirmed the "awards of the arbitrator" and Nassau appealed from so much of the Supreme Court's order as confirmed the three arbitration awards.

The Appellate Division said that the Supreme Court, after denying the petition and dismissing the proceeding as time-barred, should not have confirmed the three awards.

The court pointed out that:

1. Neither the Respondent nor Nassaucommenced a proceeding or moved to confirm any of the three awards;

2. Although CPLR 7511(e) provides, in relevant part, that "upon the denial of a motion to vacate or modify, [the court] shall confirm the award," this directive applies only where a party has filed an application to vacate or to modify an arbitration award and such action has been denied on the merits; and

3. Where the proceeding has been found to be time-barred, a court has no discretion to address the merits of the matter as to do so would have the practical effect of impermissibly extending the statutory time limitations set out in CPLR Article 75.

Finally, observed the Appellate Division, "to automatically confirm the three awards, when the proceeding to vacate/modify two of the awards is time-barred and there has been no application to confirm any of the awards, deprived  Nassau of an opportunity to object to confirmation."

* Respondent did not seek any relief from the 2015 consent award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01219.htm

A judge's vote in an unannounced opinion held not to survive his or her death

A judge's vote in an unannounced opinion held not to survive his or her death

Rizo v Yovino, 586 U. S. ____ (2019) [No. 18–272. Decided February 25, 2019]

Chief Judge of the United States Court Appeals for the Ninth Circuit Stephen Reinhardt wrote the court's en banc opinion in Rizo v Yovino. 

Judge Reinhardt, however, died on March 29, 2018 while the court's decision in the matter was not announced until April 9, 2018. A posthumous footnote in the opinion notes that "Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."

By counting Judge Reinhardt’s vote, the Ninth Circuit deemed Judge Reinhardt’s opinion to be a majority opinion, thereby constituting a precedent that all future Ninth Circuit panels must follow.

The U.S. Supreme Court vacated the ruling, holding that should a judge vote and then die before the decision is announced, his or her vote with respect to the decision "does not count," explaining that a judge may change his or her position up to the moment when a decision is released.

Noting that "[w]ithout Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed," the Supreme Court ruled that:

1. "Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority; and

2. "That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death; and

3. "... federal judges are appointed for life, not for eternity."

The court granted the then pending petition for certiorari, vacated the Ninth Circuit's decision in Rizo v Yovino and remand the case "for further proceedings consistent with this opinion."  

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/18pdf/18-272_4hdj.pdf

Where a regulation permits an employee to rescind his or her resignation the appointing authority's decision should made within a reasonable period of time

Where a regulation permits an employee to rescind his or her resignation the appointing authority's decision should made within a reasonable period of time

Joyce v New York City Dept. of Educ., 2019 NY Slip Op 01183, Appellate Division, First Department

In July 2012 the New York City Department of Education [DOE] rejected an educator's [Teacher] request for rescission of the resignation he had submitted in August 2011. Teacher the initiated an Article 78 action challenging DOE decision and in 2013 Supreme Court ruled in Teacher's favor directed DOE to accept Teacher's request for reinstatement. DOE appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

For almost four years, however, DOE failed to reinstate Teacher, during which period there was litigation between the parties. However it was not until Teacher filed a motion for contempt did the Chancellor finally respond to, and deny, Teacher's request for reinstatement, apparently in consideration of Teacher's "unsatisfactory year-end performance rating for the 2010-2011 academic year."

To further confound the situation, Teacher's unsatisfactory year-end performance rating apparently relied on by the Chancellor was ultimately annulled by the Appellate Division in May of 2018 [see Matter of Joyce v City of New York, 161 AD3d 488].

Under the circumstances, the Appellate Division said that it found that "good faith and fairness demand that a decision on a request for rescission of resignation pursuant to Chancellor's Regulation C-205(29) be made within a reasonable time." In so doing, the court rejected DOE's "suggestion that the Chancellor has the discretion to wait more than three years before making such a decision, without providing a reason for the delay."

Noting that Supreme Court had directed DOE, in an order issued in May 2013, to follow its own stated procedure by accepting the rescission letter and reinstating Respondent, subject to the Chancellor's approval as provided in the regulation, the Appellate Division held that DOE's delay "was unacceptably long and effectively operated to subvert the court's order."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01183.htm

Disciplinary settlement agreements are typically subject to "narrow construction"

Disciplinary settlement agreements are typically subject to "narrow construction"

Marine Engineers' Beneficial Assn. v City of New York, 2019 NY Slip Op 01327, Appellate Division, First Department

The term "narrow construction" used to describe the application of a law, rule or regulation based on a literal and narrow interpretation of the text of the provision. Marine Engineer's is an example of "narrow construction" in the interpretation and application of the terms and conditions set out in  a disciplinary settlement agreements.

A Chief Marine Engineer [CME] of a Staten Island ferryboat was found asleep on duty during his shift. The CME's union and the City of New York [City] entered into an agreement to settle the matter in which the CME agreed to a 30-day suspension without pay "in full satisfaction of the disciplinary matter."

Upon returning to work following the suspension without pay, the CME was told that he could not work as a Chief Marine Engineer aboard vessels in service and could not bid for job assignments in his title. Although CME retained his CME title and hourly rate of pay for regular and overtime duty, the number of overtime hours available to him with respect to his assignments in the lower title to which he was permitted to bid was limited. CME objected to the City's action and ultimately the union submitted the matter to arbitration.

The arbitrator found that the City's restricting CME's bidding rights after his suspension constituted a de factodemotion and violated the section of the controlling collective bargaining agreement that provided as follows:

"Per annum Licensed Officers shall have the right to bid for jobs on the basis of seniority. Such bid will be permanent for one year. Changes may be made before the expiration of the year by mutual consent of the Licensed Officers, subject to prior approval by the Employer. Such approval shall not be unreasonably withheld."

City filed an appeal pursuant to CPLR Article 75 seeking an order vacating the arbitration award. Supreme Court denied the City's motion and granted the union's motion to confirm the award. Subsequently the Appellate Division unanimously affirmed the Supreme Court's rulings.

The City had contended that the arbitration award, which found that the CME had the right to bid and work as a full-duty CME without regard to the incident that gave rise to the settlement agreement, violated public policy with respect to maritime passenger safety.

The Appellate Division, citing Matter of Local 333, United Mar. Div., Intl. Longshoreman's Assn., AFL-CIO v New York City Dept. of Transp., 35 AD3d 211, rejected this argument, explaining that the City's safety concerns, "albeit important, are not 'embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator.'"

The court also rejected City's claim that its action was consistent with its "management prerogative pursuant to New York City Administrative Code §12-307(b) as well as its reliance on 18 USC §1115 [Misconduct or neglect of ship officers], explaining neither could be read "to bar or add to the actions taken by the parties' representatives to resolve this disciplinary matter."

Another decision illustrating limitations imposed by a disciplinary settlement agreement with respect to action by the appointing authority is Taylor v Cass, 122 A.D.2d 885.

The disciplinary settlement agreement controlling in Taylor provided that the appointing authority could summarily terminate the employee without a disciplinary hearing if, in the opinion of Taylor's superior, Taylor's "job performance was adversely affected by his intoxication on the job during the next six months.”

Taylor was terminated during this six month period without a hearing "for failing to give a fair day’s work and sleeping during scheduled working hours." However, there was no allegation that Taylor had been intoxicated on the job listed among the reasons alleged for his being summarily terminated from his position by the appointing authority.

Taylor challenged his termination and won reinstatement with back salary. The Appellate Division said that Taylor's dismissal without notice and hearing was improper because he had not been terminated for the sole reason specified in the disciplinary settlement agreement - "intoxication on the job during the next six months."

The CME's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01327.htm

Amendment to Title 22 NYCRR codifying the practice that a witness may have counsel present during a Commission hearing

State Commission on Judicial Conduct

PROPOSED RULE MAKING - NO HEARING(S) SCHEDULED

Counsel for Witnesses at Hearings

Source: New York State Register, item I.D. No. JDC-08-19-00006-P

PURSUANT TO THE PROVISIONS OF THE

State Administrative Procedure Act,

NOTICE is hereby given of the following proposed rule:

Proposed Action: Addition of §7000.6(i)(3) to Title 22 NYCRR. Statutory authority: Judiciary Law, §42(5)

Subject: Counsel for witnesses at hearings.

Purpose: To codify the practice that a witness may have legal counsel present during a commission hearing. Text of proposed rule: A new paragraph of subdivision (i) of §7000.6 is added to read as follows: (3) At a hearing, counsel for a witness may be present while his or her client is testifying and may request permission of the referee to consult with the client, but may not object to questions, examine or cross-examine witnesses or otherwise participate in the proceedings.

Text of proposed rule and any required statements and analyses may be obtained from: Marisa E. Harrison, Commission on Judicial Conduct, Corning Tower, Suite 2301, Empire State Plaza, Albany, New York 12223, (518) 453-4600, email: harrison@cjc.ny.gov

Data, views or arguments may be submitted to Marisa E. Harrison at harrison@cjc.ny.gov

Public comment will be received until: 60 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Judiciary Law, §42(5).

2. Legislative objectives: The proposed change would clarify that counsel for a witness may be present while his or client is testifying at a Commission hearing, and may request permission of the referee to consult with the client, but may not object to questions, examine or cross-examine witnesses or otherwise participate in the proceedings.

3. Needs and benefits: The proposal seeks to clarify ambiguities and better reflect actual Commission practice that allows a witness to have counsel present during Commission hearings.

Workers' Compensation Leave is not an available to an employee who has suffered a permanent job related injury or disease

Workers' Compensation Leave is not an available to an employee who has suffered a permanent job related injury or disease

OATH Index No. 1774/18

The appointing authority served disciplinary charges against an employee pursuant to §75 of the Civil Service Law alleging "medical incompetence  based on the employee's  "excessive use of sick leave due to job-related injuries." The penalty sought: termination.

The employee argued that the disciplinary charges should be dismissed and that the matter  converted to a disability leave proceeding within the meaning of §71 of the Civil Service Law. §71 mandates that leaves of absence, typically referred to as Workers' Compensation Leave, is to be given to an individual absent from work as the result of the individual having suffered an occupational illness or disease for specified cumulative limited periods of time "unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position." [Emphasis supplied.]

Noting that the employee had filed for "permanent disability retirement" benefits, OATH Administrative Law Judge Faye Lewis concluded that §71 leave was not an available option under the circumstances and that the appointing authority could proceed with disciplinary action.*

As the evidence in the record indicated that the employee had been absent for almost "300 sick days over a 21 month period," which Judge Lewis found was  sufficient to establish an excessive use of sick leave, the ALJ found the employee guilty of the charges and specifications and recommended that the penalty of dismissal be imposed by the appointing authority.

* In Dickinson v New York State Unified Court System, 99 AD3d 569, the Appellate Division unanimously confirmed the termination of an employee found guilty of “certain disciplinary charges” that alleged, among other things, incompetency due to excessive absenteeism and lateness. As to the penalty imposed, dismissal, the court said that the penalty did not shock its sense of fairness as “[b]eing present at work is an essential job function.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1774.pdf