Morgan Lewis Pro Bono Team to Be Honored for Pro Bono Representation of Immigrants in Detention

The American Immigration Council will recognize the law firm of Morgan Lewis with its Stephen K. Fischel Distinguished Public Service Award on April 11 at The Capitol View at 400 in Washington, D.C. The award, which recognizes individuals or organizations who exhibit an outstanding commitment and dedication to America’s heritage as a nation of immigrants and to the struggle for fair and humane immigration policies in the United States, will be presented at the D.C. Immigrant Achievement Awards reception. 

Notably, Carolyn Silane, an associate at Morgan Lewis’ New Yorkoffice, successfully represented an adoptive parent who was separated from his two-year-old son in the early days of family separation and was denied reunification because the government claimed he was “not the father.”

Morgan Lewis’ pro bono legal services in immigration include helping vulnerable immigrants obtain legal immigration status, which includes providing legal representation to individuals fleeing persecution overseas, undocumented and unaccompanied minors who came to the United Stateswhen they were young, immigrant women whose immigration status is dependent on an abusive spouse, and victims of human trafficking and other crimes. The firm’s team of lawyers have also helped many abused, abandoned, or neglected young children to obtain Special Immigrant Juvenile Status in the United States.

The Council has recognized the achievements of many outstanding immigrants and their advocates. Past honorees include General Colin Powell, Senator Daniel Inouye, the Southern Poverty Law Center, TheDream.Us, and Gerda Weissman Klein.

For more information, contact Maria Frausto at the American Immigration Council at mfrausto@immcouncil.orgor 202-507-7526.

Health insurance benefits set out in collective bargaining agreement found to have survived expiration of agreement and the employee's resignation

The plaintiff [Petitioner] in this action was initially employed by the City of Lockport [Lockport] in a position in a collective bargaining unit represented by the American Federation of State, County and Municipal Employees [AFSCME]. Lockport subsequently promoted Petitioner to a position in a collective bargaining unit represented by the Civil Service Employees Association [CSEA]. In 2008 Petition later left Lockport's employ and commenced working for Niagara County [County]. In 2016, Petitioner asked Lockport provide him medical benefits set out in the relevant collective bargaining agreements [CBAs] between Lockport and AFSCME and between Lockport and CSEA.

When Lockport refused to do so, Petitioner commenced an action for breach of contract and sought a court order declaring that Lockport was required to provide him with the medical benefits set out in the relevant CBA. Ultimately Supreme Court granted Plaintiff's motion for summary judgment, ruling that Lockport was obligated to provide Petitioner with medical benefits under the Lockport and AFSCME CBA. The Appellate Division, in response to Lockport's appeal challenging the Supreme Court's decision, affirmed the lower court's ruling.

The court explained that "[a]s a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement .... However, [r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement . . . , and [the court] must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right."

Citing Kolbe v Tibbetts, 22 NY3d 344, the Appellate Division observed that whether a provision in a collective bargaining agreement "is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous. In contrast, said the court, where the language in the collective bargaining agreement "is 'reasonably susceptible of more than one interpretation, extrinsic or parol evidence may be then permitted to determine the parties' intent as to the meaning of that language,'" referencing Fernandez v Price, 63 AD3d 672 quoting Chimart Assoc. v Paul, 66 NY2d 570.

In this instance the Appellate Division concluded that Supreme Court "properly determined that the plain meaning of the provisions at issue in the AFSCME CBA establishes that [Petitioner] has a vested right to medical benefits, [that] those rights vested when he completed his 20th year of service, and [Petitioner] became eligible to receive said benefits when he reached retirement age."

Further opined the Appellate Division, Petitioner's right to medical benefits "vested when he satisfied the criteria in the AFSCME CBA, and there is no language in the AFSCME CBA indicating that employees would forfeit or surrender their vested rights if they transferred jobs or unions prior to reaching retirement age." Accordingly the court concluded that Supreme Court's interpretation of the AFSCME CBA "give[s] fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized ... and does not leave one of its provisions substantially without force or effect."

N.B. Motion to dismiss appeal granted, Motion #CA 18-00924 [see
http://www.nycourts.gov/reporter/motions/2018/2018_66476.htm]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08792.htm

Property owner liable if a firefighter is injured in the line of duty due to the owner's failure to comply with law, rule or regulation that resulted in the injury

General Municipal Law §205-a "gives a firefighter . . . a right of action against any person whose negligent failure to comply with a government provision either  directly or indirectly results in injury" suffered in the "line of duty."

A city firefighter, who had sustained injuries in the course of performing firefighting duties when he "stepped onto a roof, slipped on the snowy surface and fell to the ground," and his spouse [Plaintiffs] sued the owner, [Defendant] alleging the Defendant was liable, citing General Municipal Law §205-a and General Obligations Law §11-106. Supreme Court granted the Defendant's motion and Plaintiffs appealed.

The Appellate Division ruled that Supreme Court properly granted Defendant's motion for summary judgment, explaining that while General Municipal Law §205-a "gives a firefighter . . . a right of action," to successfully make out such a claim, a plaintiff:

1. Must identify the statute or ordinance with which the defendant failed to comply;

2. Describe the manner in which the firefighter was injured; and

3. Set out the facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter.

In contrast, to succeed on a motion for summary judgment dismissing the plaintiff's action in this context, a defendant must show either:

1. Defendant did not violate any relevant governmental provision or;

2. If a relevant government provision was violated, that such violation did not directly or indirectly cause [the firefighter's] injuries."

Defendant had submitted his deposition testimony and the affidavit of an expert opining that Defendant's house contained no building code violations that contributed to the firefighter's injuries.

Plaintiffs contended that Defendant had violated statutory and building code provisions requiring all multifamily dwellings to contain fire-resistant enclosures at the base or top of stairways or both and that the lack of such enclosures contributed to the firefighter's injuries.

The court, however, observed that Plaintiffs' expert contended that Defendant violated provisions of these laws, but his opinions were based on assumptions without any explanation of how these laws were applicable in this instance.

Further, although Plaintiffs also assert that Defendant violated local ordinances by failing to obtain permits when certain work was performed inside the house, the Appellate Division noted that record does not indicate that any of those alleged violations caused or contributed to the firefighter's injuries.

Accordingly, the Appellate Division ruled that Supreme Court had properly determined that Defendant was entitled to summary judgment dismissing the complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02604.htm

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Disability Benefits for fire, police and other public sector personnel - This e-book addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

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Selected cases noted in the press during the week ending April 6, 2019

A federal judge has ruled there is no coverage under a homeowners' insurance policy for a minor's allegations of sexual misconduct against a female teacher.

The item is posted on the Internet at:

https://stlrecord.com/stories/512394901-judge-rules-safeco-insurance-not-responsible-for-coverage-of-teacher-s-sexual-misconduct-allegations?utm_source=St.+Louis+Record&utm_campaign=e040c38a45-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_226e302527-e040c38a45-73836803

An environmental group has been granted the right to act on behalf of four of its members in an action against the owners of a coal-fired power plant on the Mississippi River. 

The item is posted on the Internet at:

https://stlrecord.com/stories/512359052-environmental-group-granted-standing-in-action-against-power-plant-owner?utm_source=St.+Louis+Record&utm_campaign=e040c38a45-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_226e302527-e040c38a45-73836803

Public Schools employee who alleged he was paid less than his female counterparts has lost his case in federal court.

The item is posted on the Internet at:

https://stlrecord.com/stories/512394851-jefferson-city-public-schools-employee-loses-equal-pay-claim-case?utm_source=St.+Louis+Record&utm_campaign=e040c38a45-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_226e302527-e040c38a45-73836803

Immigration attorneys are available to help immigrants across state

Governor Cuomo has announced that 19 full-time attorneys, working in conjunction with Office for New Americans Opportunity Centers, have been selected to provide free legal services to immigrants in every region of New York State.

The New York State Office for New Americans, founded six years ago, is the nation's first statutorily created immigrant services office. ONA has Opportunity Centers across the State that are hosted in community-based organizations that deliver a host of services and support, including legal services, to New York's new American communities. These sites are the focal point for communities to embrace immigrants by providing them with the tools necessary to thrive and contribute to our state.

In 2017, Governor Cuomo launched the Liberty Defense Project - the first-in-the-nation, state-led public-private project - to assist immigrants regardless of status in obtaining access to legal services. The project is administered by ONA and run in partnership with law firms, legal associations, advocacy organizations, major colleges and universities and bar associations.

The LDP provides:

Free legal consultations and screenings for immigrants throughout New York State;

Direct representation to immigrants in deportation proceedings as well as other cases;

Assistance with other immigration legal services, particularly for complex matters; and

Know Your Rights training for immigrants and the community at large.

 

The attorneys will located as follows:

• Capital Region - Women's Bar Association Legal Project, Inc. (2 attorneys)
• North Country - Frank H. Hiscock Legal Aid Society (2 attorneys)
• Mohawk Valley - Frank H. Hiscock Legal Aid Society (2 attorneys)
• Central New York - Frank H. Hiscock Legal Aid Society (2 attorneys)
• Southern Tier - Journey's End Refugee Services (2 attorneys)
• Finger Lakes - Journey's End Refugee Services (2 attorneys)
• Western New York - Journey's End Refugee Services (2 attorneys)
• Hudson Valley - Catholic Charities Community Services, Archdiocese of New York (2 attorneys)
• Long Island - New York Legal Assistance Group (NYLAG) (1 attorney)
• New York City - New York Legal Assistance Group (NYLAG) (2 attorneys)

ONA Legal Counsels will travel within their regions to meet the needs of immigrants in their communities. Services will be available at legal clinics at community-based organizations within each region. Direct representation for clients in need of assistance will be available, and ONA Legal Counsels will also conduct legal seminars and workshops. Grantees will provide translation and interpretation services for non-English-speaking new American clients.

 

ONA Legal Counsels will provide direct representation to immigrants in immigration-related proceedings using a "universal representation" model that serves any immigrant in need of legal representation in New York State.

 

Each ONA Legal Counsel in upstate regions will provide legal representation to a caseload of 15 to 20 clients at a time. Downstate ONA Legal Counsels will handle between 12 to 20 cases, depending on the specific region. Immigration legal services provided by the ONA Legal Counsel will include the following cases and services, but not be limited to:

• Deferred Action for Childhood Arrivals
• Asylum
• U visas
• T visas
• Temporary Protected Status
• Special Immigrant Juvenile Status
• Violence Against Women Act
• Removal proceedings, for those currently detained or not, including those with a prior order of removal
• Work permits
• Bond hearings
• Board of Immigration Appeals
• Federal litigation
• Advanced parole
• Family reunification
• Family-based immigration
• Complex naturalization
• Family guardianship

All services provided will be offered at no charge to clients.

 

Any immigrant that needs free legal assistance is urged to call the New Americans Hotline at 1-800-566-7636. All call information is confidential. Assistance is available in 200+ languages.

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending April 5, 2019

 Links to material posted on the Internet highlighted in COLOR

Department of Financial Services (DFS): Oversight of the Title Insurance Industry (2017-S-10) While DFS has worked to strengthen its oversight of the industry through the regulatory process, enforcement of the existing regulations has lagged.

Office of Children and Family Services (OCFS): Access Controls Over Selected Critical Systems (2017-S-56) Controls over six OCFS systems containing confidential information were insufficient to prevent unnecessary or inappropriate access to those systems. Auditors identified 367 user accounts with inappropriate access because OCFS had not performed the required annual reviews of user accounts. This included 35 active user accounts for individuals who no longer worked for OCFS.

Metropolitan Transportation Authority (MTA): New York City Transit: Practices Used by the Transit Adjudication Bureau (TAB) to Collect Fines and Fees (Follow-Up) (2018-F-20) An initial report issued in August 2016 determined that approximately half the fines and fees assessed by the TAB are never fully collected. In addition, inaccurate information written on summonses, such as bad addresses and false telephone numbers, contributes to collection difficulties. In a follow-up, auditors found the MTA made progress in implementing the recommendations contained in the initial report.

Department of Health (DOH): Examination of Travel Expenses (2017-BSE01-02) Auditors found $9,760 of a DOH employee’s expenses were not appropriate. This includes lodging, meal, and fuel expenses for which there was no business purpose, meal allowance expenses the employee was not entitled to receive, meal per diem expenses that exceeded the maximum allowable rates and inflated transportation reimbursements. Auditors also found the employee incurred $37,795 in questionable travel expenses.

State Education Department (SED): Examination of Payments to Tough Man Inc. (2018-BSE2-001) Tough Man is a not-for-profit corporation formed to sponsor community sporting events such as walks and races in New York. SED made five payments totaling $150,000 under contracts for services provided from July 1, 2013 through June 30, 2017. The contracts provide funding for Tough Man to provide an in-school program to students and to operate triathlons for kids and teens. Auditors found SED did not request, as required, sufficient evidence to demonstrate the expenses claimed were incurred for contract purposes and exceeded program revenues and other reimbursements by $150,000. There is also risk Tough Man did not keep such records.

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 160,000 contracts, billions in state payments and public authority data. 

Criminal prosecutor's claim of absolute immunity depends on the nature of the function he or she performed

Whether a prosecutor is entitled to absolute immunity for specific actions “depends principally on the nature of the function performed.” In this action the United  States Court of Appeals, Second Circuit, held that "[a]s the presentation of inculpatory evidence showing probable cause to the grand jury is an essential prosecutorial function, necessary to obtain an indictment, doing so is protected by absolute immunity", explaining that it is “intimately associated with the judicial phase of the criminal process."

With respect to the prosecutor giving "reassurance" to an infant witness, providing such reassurance is a protected act of “advocacy” in the course of presenting the prosecutor's  evidence to the grand jury.

For the purpose of determining whether this prosecutor is entitled to absolute immunity for placing the most crucial inculpatory evidence before the grand jury, and where the accused admits that the purpose of taping the infant's testimony was to present it to a grand jury, there is no functional difference between creating a recording of the infant’s testimony for presentation to the grand jury pursuant to New York's Criminal Procedure Law §190.32 and directly questioning the infant before the grand jury as both are the creation of the essential grand jury record.

The prosecutor, therefore, was entitled to absolute immunity with respect to the prosecutor's recording the infant’s testimony, including the prosecutor's "misguided effort to reassure the [infant]." 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e7e13757-e9ea-4137-adec-6b9de5a93de9/1/doc/18-1377_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e7e13757-e9ea-4137-adec-6b9de5a93de9/1/hilite/

Rights to free speech and, or, academic freedom not offended by requiring a candidate for a teaching position to demonstration his or her teaching skills

The petitioner [Plaintiff] in this action appealed the federal district court's dismissal of his claims that members of a hiring committee at a State University of New York campus discriminated against him based on his age and disability and violated his First Amendment rights to free speech and academic freedom to the United States Circuit Court of Appeals, Second Circuit. Plaintiff also challenged the constitutionality of 28 U.S.C. §1915, certain procedural rules established by the District Court Judge and alleged that the magistrate judge was biased against him and should have been recused.*

Assuming, but not deciding that Plaintiff's age and disability discrimination claims are cognizable under §1983, the Circuit Court said it must first determine if the facts alleged in Plaintiff's complaint “plausibly support” the following elements:

[a] Plaintiff is a member of a protected class;

[b] Plaintiff was qualified;

[c] Plaintiff suffered an adverse employment action; and

[d] Plaintiff demonstrated at least minimal support for the proposition that the employer was motivated by discriminatory intent.

The Circuit Court held that Plaintiff's complaint did not meet this minimal standard.

Although Plaintiff alleges that the other candidates that were offered the teaching positions for which he applied were younger and less-qualified than he, the court said that these conclusory allegations do not plausibly support a discrimination claim because Plaintiff [1] "has not pled the qualifications for the position, [2] whether his qualifications met those requirements, or [3] whether the other candidates’ qualifications met those requirements."

With respect to Plaintiff's allegation that the hiring committee gave him negative evaluations for his teaching demonstration in order to cover up its discriminatory animus, the Circuit Court said that such "negative evaluations that SUNY gave [Plaintiff] ... conveyed legitimate concerns that [Plaintiff's] teaching philosophy conflicted with the university’s curriculum and needs and equally legitimate concerns about [Plaintiff's] practical skills as a teacher." Further, said the court, Plaintiff's allegation that an elderly SUNY professor had created administrative difficulties by taking medical leave does not support an inference that these legitimate reasons for not offering Plaintiff the position were pretext for discrimination.

The court opined that (a) Plaintiff's claims did not plausibly support an inference that SUNY is liable for age discrimination and (b) his allegation that SUNY violated his First Amendment guarantees of free speech and academic freedom by requiring him to give a teaching demonstrations also failed. 

Recognizing that the First Amendment protects academic freedom, the Circuit Court explained that "a university may nonetheless place parameters on scholarship when the parameters protect the university’s legitimate interest in ensuring that teaching candidates can communicate ideas effectively," citing Hazelwood School District v. Kuhlmeier, 484 U.S. 260, in which the Supreme Court noted that "schools may exercise some control over speech in schools if the school’s actions are 'reasonably related to legitimate pedagogical concerns.'”

Holding that SUNY did not violate Plaintiff's First Amendment rights to free speech or academic freedom by requiring him to perform a teaching demonstration as a candidate for a teaching position, the Circuit Court concluded that Plaintiff "has not satisfactorily pled" that any SUNY employees discriminated against him or violated his First Amendment rights and affirmed the district court's order dismissing his complaint.

* With respect to challenges to the district court’s procedure, the Circuit Court ruled that Plaintiff did not have standing to challenge either §1915’s constitutionality or the district judge’s individual practices because he had not suffered an injury because of the district court’s review of his complaint pursuant to §1915 or as the result of the district court’s pre-motion letter requirement. As to Plaintiff's motion to remove the magistrate judge, the motion was deemed moot and "otherwise fails on the merits because Plaintiff’s allegation that the magistrate was biased was impermissibly premised solely on adverse rulings."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/fdcb5653-346c-48a4-9ff3-dc1908da6166/3/doc/18-1540_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdcb5653-346c-48a4-9ff3-dc1908da6166/3/hilite/

Supplemental Military Leave: benefits for officers and employees of the State of New York as the employer

NO HEARING SCHEDULED

This proposed amendment to the Attendance Rules for Employees in New York State Departments and Institutions is a consensus rule making amending 4 NYCRR 21.15 and 4 NYCRR 28-1.17 to extend the availability of supplemental military leave benefits for certain employees of New York State as the employer until December 31, 2019.

This proposed rule amends 4 NYVRR 21.15 and 4 NYCRR 28-1.17 to continue the availability of the single grant of supplemental military leave with pay and further leave at reduced pay through December 31, 2019, and to provide for separate grants of the greater of 22 working days or 30 calendar days of training leave at reduced pay during calendar year 2019.

Union represented employees already receive these benefits pursuant to memoranda of understanding (MOUs) negotiated with the Governor’s Office of Employee Relations (GOER). The proposed rule amends 4 NYCRR 21.15 of the Attendance Rules consistent with the current MOUs, and amends 4 NYCRR 28-1.17 to extend equivalent benefits to employees serving in positions designated managerial or confidential within the meaning of Article 14 of the Civil Service Law.

Currently §242 of the New York State Military Law provides that public officers and employees who are members of the organized militia or any reserve force or reserve component of the armed forces of the United States may receive the greater of 22 working days or 30 calendar days of leave with pay to perform ordered military duty in the service of New York State or the United States during each calendar year or any continuous period of absence. Following the events of September 11, 2001, certain State employees have been ordered to extended active military duty, or frequent periods of intermittent active military duty. These employees faced the loss of State salary, with attendant loss of benefits for their dependents, upon exhaustion of the annual grant of Military Law paid leave.

Accordingly, supplemental military leave, leave at reduced pay and training leave at reduced pay were made available to such employees pursuant to MOUs negotiated with the employee unions. Corresponding amendments to the Attendance Rules were adopted extending equivalent military leave benefits to employees in positions designated managerial or confidential within the meaning of Article 14 of the Civil Service Law.

The text of the proposed rule and any required statements and analyses may be obtained from: Jennifer Paul, Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov

Determining an educator's "seniority" for the purposes of reinstatement from a preferred list

In the event teaching positions are consolidated or abolished by a school district or a BOCES the services of the teacher having the least seniority in the system within the tenure area of the position that has been abolished shall be discontinued. In contrast, where the same or a similar vacancy becomes available and its to be filled, teachers are to be recalled for reinstatement "in the order of their length of service in the system" without reference to the tenure area in which that service was performed.*

A teacher [Educator] certified in elementary education and special education commenced working for the employer [School Board] in 2007 and was employed in a variety of positions including serving as a probationary elementary education teacher. While serving as a probationary elementary education teacher Educator was "excessed" and her name was placed on "a preferred eligible list of candidates" from which individuals would be selected for reinstatement should a similar position open in the future. When a vacancy for an elementary education teacher vacancy arose in 2013, the School Board determined that two individuals on the preferred list had greater seniority that Educator "because [Educator's] full-time regular substitute work as a special education teacher and as an elementary school librarian were not counted" in determining Educator's length of service for the purposes reinstatement from the preferred list. School District reinstated one of the two teachers having "greater seniority" to the vacancy.**

Educator appealed action of the School Board to the Commissioner of Education, contending that she should have been credited for her long-term substitute work in the school district and thus she had greater seniority than the individual the School District had reinstated to the vacancy. The Commissioner agreed and ordered that the School Board to appoint Educator to the position of elementary education teacher with back pay and benefits effective September 1, 2013. The School Board then commenced this CPLR Article 78 proceeding seeking to annul the Commissioner's determination. Supreme Court dismissed the proceeding, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that a court may not substitute its judgment for that of the Commissioner unless it concludes that such determination was "arbitrary and capricious, lacked a rational basis or was affected by an error of law." Further, in making such a determination courts "tread gently in second-guessing the experience and expertise of state agencies charged with administering statutes and regulations," knowing that "[i]t is for the Commissioner in the first instance . . . to establish and apply criteria to govern the selection and retention of qualified educators and staff." Accordingly, deference is afforded to the Commissioner's determination "where, as here, it is based upon her expertise in applying an ambiguous statutory and regulatory framework."***

Although long-term substitute work is counted toward "seniority in the system within the tenure of the position" for layoff purposes if it was performed in that tenure area prior to the teacher's probationary appointment in the same tenure area, in determining the rights of an individual on a preferred list for reinstatement "any and all service within the system" is counted without any "further qualification of service in a particular tenure area." The Appellate Division also commented that "this interpretation comports with the language of Education Law §3013 and prior precedent and, in addition, avoids the negative policy outcome of deterring teachers from accepting long-term substitute work if it falls outside of their preferred tenure area."

Accordingly, the Appellate Division found the Commissioner's decision was "entitled to deference" and agreed with Supreme Court that the Commissioner's determination is supported by a rational basis and that no reason exists to set it aside.

* The Education Law controls with respect to the layoff and reinstatement of certain officers and employees employed by a BOCES, a school district, certain other public schools, academies and colleges, the New York State School for the Blind and the New York State School of the Deaf serving in positions in the Unclassified Service as described in subdivisions (g), (j) and (k) of §35 of the Civil Service Law; the Civil Service Law controls with respect to the layoff and reinstatement of officers and employees in the Classified Service serving in positions described in §§40-45 of the Civil Service Law. Further, §85 and §86 of the Civil Service Law and §242 and §243 of the State’s Military Law provide  certain rights to individuals that could be relevant in a layoff situation.

** Educator initially challenged the School Board's service calculation in a CPLR Article 78 proceeding that was dismissed by Supreme Court on its finding that the Commissioner of Education had primary jurisdiction over the matter.

*** Noting that courts have not addressed certain differences in the provisions of Education Law §3013 but have done so with regard to the "nearly identical" provisions of a statute governing abolition and recall in school districts for cities with fewer than 125,000 inhabitants, the Appellate Division opined that that the statutory language and underlying policy dictate a calculation of recall rights using "any and all service within the system, not just within the specific tenure area at issue." Accordingly, the Appellate Division held that the Commissioner  "interpreted, and reasonably so, the analogous provisions of Education Law §3013 in the same manner."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02402.htm

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The Layoff, Preferred List and Reinstatement Manual - An e-book focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on  http://booklocker.com/books/5216.html
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Challenging the denial of an application for New York State and Local Retirement System disability retirement benefits

There are three basic issues to be mindful of when challenging the denial of an application for disability benefits submitted by a member of the New York State and Local Retirement System [NYSLRS].

1. The applicant seeking disability retirement benefits bears the burden of demonstrating that he or she is permanently incapacitated from performing his or her job duties;

2. The State Comptroller is vested with the "exclusive authority" to determine an application for NYSERS disability retirement benefits; and

3.  The Comptroller's decision will be sustained by the court if supported by substantial evidence.

The genesis of a CPLR Article 78 action was the Comptroller's denial of a New York State and Local Retirement System [NYSLRS] member's [Member] application for disability retirement benefits following the review of the findings and recommendation of a hearing officer made after a hearing pursuant to §74 of the Retirement and Social Security Law [RSSL].*

The Member contended that the medical records upon which the System based its initial denial of her application were erroneously admitted into evidence at the hearing. However, noted the Appellate Division, Member withdrew her objection to these records at the hearing and, thus, failed to preserve this issue for review by the Appellate Division is this Article 78 proceeding.

The Appellate Division then explained that in reviewing the determination of the Comptroller following a RSSL §74 hearing, the court is limited to considering whether the Comptroller's determination is supported by substantial evidence and in disability cases "substantial evidence" has been construed to require "some credible evidence." Further, said the court, the hearing officer was entitled to credit the evidence presented by NYSLRS' medical expert and "[i]t is within the exclusive authority of the Comptroller to evaluate the medical evidence and credit one medical opinion over another."

Further, opined the Appellate Division, the Comptroller's decision to credit one expert's opinion over the opinion of a another expert's is "dispositive where, as here, the credited expert provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records." The court then noted that NYSLRS' medical expert:

a. reviewed the medical records the Member submitted to the System; 

b. conducted a physical examination of the Member; and 

c. considered the letters from the Member's treating physicians stating that she was permanently disabled due to the conditions listed in her application as well as other resultant conditions.

Noting that NYSLRS was entitled to credit the opinion set forth in its medical expert's supplemental report "because it was founded upon a physical examination and review of relevant medical reports and records," the Appellate Division ruled that the Comptroller's decision was supported by substantial evidence and dismissed Member's Article 78 petition.

* Member had submitted over 200 pages of medical records to NYSLRS' Medical Board. Member was then referred a physician for a medical examination. Following the examination the physician opined that Member's medical condition "should present no obstacle to her ability to work" and that "[f]rom an internal medicine standpoint, there are no findings in the records or examination to support a disabling condition." NYSLRS denied the Member's application. At the Member's request, a redetermination hearing was held before a hearing officer, at which time the Member offered additional medical records and Member's family physician testified concerning Member's medical issues. In addition, Member  "submitted letters from other medical professionals" stating that Member was disabled due to "a constellation of symptoms and conditions." The hearing officer credited the opinion of NYSLRS' medical expert and recommended denying the Member's application for benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02343.htm

Arbitrability of a job security provision set out in a collective bargaining agreement

Supreme Court granted the petition filed by the City of Watertown Fire Department seeking a permanent stay of arbitration of a grievance filed by the Watertown Professional Firefighters Association, Local 191, the collective bargaining representative of firefighters concerning the staffing provisions set out in a collective bargaining agreement [CBA]. The court determined that the staffing provisions were unenforceable job security provisions that violate public policy and, therefore, may not be arbitrated. The Appellate Division unanimously reversed the lower court's order "on the law."

Citing Matter of Alden Cent. Sch. Dist. [Alden Cent. Schs. Administrators' Assn., 115 AD3d 1340, the Appellate Division explained that in deciding an application to stay or compel an arbitration brought under CPLR §7503, the court must make a two-part analysis as a "threshold determination of arbitrability" and is not concerned with the merits of the underlying claim.

First, the court is to determine if there is any "statutory, constitutional, or public policy" prohibition barring arbitration of the grievance. If no such prohibition is found, the court is then to determine if the parties to the CBA did, in fact, agree to arbitrate the particular dispute by examining the relevant CBA.

In this instance the Appellate Division concluded that Supreme Court "erred in determining that the staffing provisions are not arbitrable on the ground that they are job security provisions subject to the public policy exception to arbitration."

A job security provision in a CBA provides that "at least for the duration of the agreement," the employees in the unit covered by such a provision need not fear the elimination of their position. Here however, the Appellate Division opined that the staffing provisions at issue do not purport to guarantee a firefighter his or her employment while the CBA is in effect. In the words of the court, "contrary to the City's contention, the staffing provisions do not operate to mandate a total number of firefighters that must be employed; rather, they relate solely to the minimum number of firefighters required to be present during shifts and regular operations."

Rejecting the City contention that staffing provisions "were tantamount of a 'no layoff' clauses," the Appellate Division said that the record establishes that in the course of negotiations the parties viewed the staffing provisions as necessary to protect the health, safety and well-being of unit members. According, the court concluded that Supreme Court was in error when it determined that the staffing provisions were job security provisions not subject to arbitration.

Addressing the second part of the analysis -- whether the parties agreed to arbitrate the relevant dispute --the court concluded that the CBA contained a broad arbitration clause and its determination under that part of the analysis "is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Finding that the City "references the staffing provisions in its labor grievance," the Appellate Division held that the grievance was reasonably related to the general subject matter of the CBA and concluded that the parties agreed to arbitrate the labor grievance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00753.htm