Overcoming the presumption in favor of collective bargaining terms and conditions of employment underlying the Taylor Law

Civil Service Law §71 provides that where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "he or she shall be entitled to a leave of absence for at least one year, 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."

Under color of Civil Service Law §6[1], the Department of Civil Service promulgated implementing regulations for Civil Service Law §71, setting out procedures for notifying an employee of the right to a one-year leave of absence, notifying an employee of an impending termination following the expiration of that one-year period, the employee's right to a hearing and the procedures to be followed in the event an employee so terminated seeks to return to duty after recovering from the disability.* 

The Long Beach Professional Firefighters Association, IAFF, Local 287 [LBPFA] advised the City of Long Beach [City] that it wished to negotiate the procedure for separating members of LBPFA placed on leave pursuant to §71. City declined to negotiate such a procedure and LBPFA filed an improper practice charge against the City with New York State Public Employment Relations Board [PERB]alleging that the City violated Civil Service Law §209-a(1)(d) by refusing to negotiate the matter with the LBPFA.

An administrative law judge [ALJ] determined that the City had violated Civil Service Law §209-a(1)(d) and PERB affirmed the ALJ's determination. The City then commenced a CPLR Article 78 proceeding challenging PERB's determination. PERB moved to dismiss the petition and the Supreme Court granted its motion. The City appealed the Supreme Court's decision.

The Appellate Division, citing Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 19 NY3d 876, observed that "It is well settled that '[t]he Taylor Law requires collective bargaining over all terms and conditions of employment'" and that the Court of Appeals has "'made clear that the presumption ... that all terms and conditions of employment are subject to mandatory bargaining cannot easily be overcome.'"

That said, the court noted that City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73 teaches that "The presumption in favor of bargaining may be overcome only in special circumstances where the legislative intent to remove the issue from mandatory bargaining is plain and clear, or where a specific statutory directive leaves no room for negotiation."** 

Finding that the demand to negotiate the issue raised by LBPFA fell within the ambit of Watertown, the Appellate Division opined that it need not defer to PERB's interpretation of Civil Service Law §71 because "[that] question is one of pure statutory construction dependent only on accurate apprehension of legislative intent [with] little basis to rely on any special competence of PERB."

Addressing the issue de novo, the Appellate Division declared that "the presumption in favor of collective bargaining [had been] overcome." The court then reversed PERB's order and judgment holding PERB's decision null and void, granted the City petition, and dismissed the improper practice charge filed by the LBPFA against the City "with prejudice". 

* See 4 NYCRR 5.9. 

** The Appellate Division's decision also notes that [1] "a subject that would result in [the public employer's] surrender of nondelegable statutory responsibilities cannot be negotiated," citing Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; and [2] "some subjects are excluded from collective bargaining as a matter of policy, even where no statute explicitly says so," citing Matter of City of New York v Patrolmen's Benevolent Assn. of the City of N.Y., Inc., 14 NY3d 46. See, also, https://publicpersonnellaw.blogspot.com/2010/10/prohibited-subjects-of-arbitration.html

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05504.htm

 

 

Determining a retirement system member's eligibility for accidental disability retirement

On May 9, 2018 the Board of Trustees of the New York City Police Pension Fund [Board] denied a New York City police officer's [Officer] application for accident disability retirement [ADR]. Officer challenged the Board's decision and Supreme Court granting his CPLR Article 78 petition seeking to vacate the Board's determination and awarded Officer ADR benefits retroactive to December 1, 2010. 

The Board appealed and the Appellate Division unanimously reversed the Supreme Court's ruling "on the law," and dismissed Petitioner's Article 78 action. 

The Appellate Division opined that the Board's denial of Officer's application for ADR benefits was not arbitrary and capricious noting that the relevant date for purposes of disability is at or prior to the applicant's retirement from service, citing Matter of Gullo v Kelly, 50 AD3d 449, leave to appeal denied 11 NY3d 702.

The court noted that the Medical Board's consideration of evidence and reports after Officer's retirement, and its conclusion that Officer was disabled several years after his retirement, "does not change the relevant date for entitlement to ADR" benefits.

Further, said the Appellate Division, the Medical Board was entitled to rely on its own examinations and testing of Officer as well as its review of Officer's medical records. These provided some credible evidence to support the Medical Board's finding that Officer was not disabled at the time of his retirement.

Referring to Matter of Khurana v Kelly, 73 AD3d 497, leave to appeal denied 15 NY3d 715, the court held that the Medical Board "was not bound by the contrary opinions of [Officer's] treating physicians."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05282.htm

 

Diversity training programs

In an article captioned "Diversity Work, Interrupted",* Inside Higher Ed's daily news update dated October 7, 2020, reports that "some institutions have begun to cancel diversity, equity and inclusion programs in response to an Executive Order, "Executive Order on Combating Race and Sex Stereotyping," issued on  September 22, 2020.

Preliminary guidance from the State University of New York notes that the order "makes a passing reference to a carve out for education, stating (in full) that '[n]othing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.'" Yet it is "unclear how the EO would define its 'objectivity' and 'non-endorsement' requirements." 

The Executive Order is posted on the Internet at https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/. 

* See https://www.insidehighered.com/news/2020/10/07/colleges-cancel-diversity-programs-response-trump-order?utm_source=Inside+Higher+Ed&utm_campaign=275597c9a5-DNU_2020_COPY_02&utm_medium=email&utm_term=0_1fcbc04421-275597c9a5-236506338&mc_cid=275597c9a5&mc_eid=bf9965f865

Employee terminated from employment after progressive disciplinary action taken by the appointing authority

Supreme Court denied the petition filed by the employee [Educator] pursuant to CPLR Article 75 seeking to vacate an arbitration award that, after a hearing pursuant to Education Law §3020-a, found the Educator guilty of the disciplinary charges filed against him and imposed the penalty of dismissal from employment.

Educator appealed but the Appellate Division unanimously affirmed the lower court's ruling.

Citing Cipollaro v New York City Dept. of Educ., 83 AD3d 543, the Appellate Division opined that "[t]]he penalty of termination of [Educator's] employment as a public school teacher does not shock one's sense of fairness."

The court explained that the record shows that Educator failed to instruct students during class time, instead using the time to perform personal tasks on Educator's own laptop computer, noting that the record showed that Educator "had previously been placed on notice that such conduct was not permitted, and prior disciplinary action had failed to remedy [Educator's] misconduct."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05474.htm. 

 _______________

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Regulating partisan political activities of certain employees of a federal, state, municipal, educational or research entity

The Hatch Act, 5 U.S.C. §§7321-7326, regulates partisan political activities of most federal executive branch employees.

The Hatch Act [Act] also applies to officers and employees in the executive branch of state and local government whose principal employment involves an activity financed in whole or in part by federal loans or grants. 

However, certain state public officers such as the governor, the mayor of a city, and the elected head of an executive department are exempted from the Act, as are individuals employed by educational or research institutions which are supported in whole or in part by the State or a political subdivision of the State.

The Hatch Act permits public officers and employees to be members of a political party and even serve as officers in that party, but prohibits the use of their official authority or influence for the purpose of interfering with or affecting the results of elections or the nominations of candidates for those elective offices. The Act also bars direct or indirect coercion of public workers to make a loan or to contribute anything of value to an individual or a party or other organization for political purposes.

In Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], the Appellate Division opined that an individual otherwise entitled to an "administrative due process disciplinary hearing” such as one provided by a Taylor Law collective bargaining agreement [CBA] or by state law may be summarily removed from his or her position under certain conditions.

Blackburne had taken a leave of absence from his employment with a state department [Agency] to seek election to a seat on the City Council even though he had been warned, in writing, by the Agency that in so doing he would be in violation of the Hatch Act and his employment would be in jeopardy. Blackburne's was unsuccessful in his efforts to be elected to the City Council and he returned to his position with the Agency.

The United States Special Counsel subsequently filed a complaint with the Merit Systems Protection Board [Board] charging Blackburne with violating the Act. Following a hearing, the Administrative Law Judge [ALJ] issued a decision sustaining the charge and recommending that Blackburne be removed from his position with the Agency. Blackburne filed exceptions to the ALJ's rulings with the Board. 

Ultimately the Board adopted the ALJ's findings and recommendation and ordered the Agency to remove Blackburne from his position or be faced with the loss of Federal funds equal to two years of Blackburne's annual salary. The Agency summarily terminated Blackburne under color of the Board's determination.

Blackburne challenged the Agency's action, contending he could not be removed or be subjected to any disciplinary penalty absent his being accorded administrative due process mandated by the disciplinary grievance procedure set out the relevant Taylor Law CBA and demanded that the matter be submitted to arbitration as mandated by the CBA.

The Appellant Division disagreed, noting that although Blackburne's violation of the Act had not occurred during the performance of his job-related duties, such misconduct could be considered to be within the ambit of Article 33 of the CBA "since a public employee may be disciplined for off-duty misconduct." 

The court then opined that it need not decide that issue since, in its view, Blackburne's grievance was precluded by the CBA's exclusionary clause set forth in §34.1 of the CBA which bars arbitration of matters where "other means of resolution are provided ... by statute ... applicable to the State".

Finding that the Hatch Act accords a full evidentiary hearing to an accused violator and further provides for judicial review of Board orders through a proceeding in federal district court, the Appellate Division concluded that the parties to the CBA had not expressly, directly and unequivocally agree to submit the subject grievance to arbitration.

Further, said the court, "the arbitration of this grievance would offend public policy," citing Matter of Board of Education [Ramapo] 41 NY2d 527. The Appellate Division explaining that the only penalties for violating the Act are either [1] removal from office or employment, or [2] the subsequent loss of Federal funds otherwise available to the employer. In contrast, observed the court, under the CBA an arbitrator has a range of disciplinary options that may be imposed on the wrongdoer that are much less severe than termination of employment.

Consequently, the Appellate Division held that "to permit this matter to proceed to arbitration would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

The Blackburne decision is posted on the Internet at https://www.leagle.com/decision/1995224211ad2d131221. 

 

Determining if an employee's injury sustained "in the line of duty" was an accident for the purposes of eligibility for accidental disability retirement benefits

The NYC Administrative Code §13-252 requires providing Accident Disability Retirement (ADR) benefits to an injured police officer when a medical examination shows that the officer is "physically or mentally incapacitated for the performance of city-service as a natural and proximate result of  [1] an accidental injury received in such city-service while a member" of the Pension Fund and [2] the "disability was not the result of willful negligence" on the part of the officer and [3] the officer "should be retired."

If the Medical Board so finds, the Police Pension Fund Board of Trustees [Board] then makes the final determination regarding the officer's entitlement to ADR and if it finds that ADR should be approved, it becomes effective after the last day a member is on the active NYPD payroll.

Responding to a family disturbance call, Petitioner [Police Officer] was exiting "the passenger side of his patrol van in haste" when his service firearm got caught on the seatbelt, and Police Officer fell to the ground, suffering spine and shoulder injuries. Police Officer's application for ADR benefits was rejected by the Board and Police Officer appealed the Board's determination. Supreme Court granted Police Officer's CPLR Article 78 petition and remanded the matter to the Board "for an award of [ADR] benefits." The Board appealed.

The Appellate Division unanimously reversed the Supreme Court's decision "on the law," denied Police Officer's petition and dismissed Police Office's CPLR Article 78 action.

The Appellate Division explained that Supreme Court erred in granting the Police Officer's petition and in annulling the Board's determination that Police Officer's injury did not arise from an unexpected accident or from a risk inherent in the job of being a police officer. Rather, said the court, "[t]he board correctly determined that [Police Officer's] injury was not caused by an accident as defined in the New York City Administrative Code and applicable case law.

Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Department of City of New York, 57 NY2d 1010, the Appellate Division observed that "not every line-of-duty injury will support an award of accidental disability retirement [and] an injury which occurs without an unexpected event as the result of activity undertaken in the [police officer's] performance of ordinary employment duties ... is not an accidental injury," sustaining the Board's conclusion that Police Officer's injury was not the result of "a sudden, unexpected event".

Quoting from Pratt v Regan, 68 NY2d 746, the Appellate Division observed that "the catching one's heel on a running board [of a motor vehicle] and thus losing balance may be a risk of the work performed [by an employee], but coming down hard upon the other foot in a pothole is not."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05136.htm

 

Former employee's application seeking the removal of a "problem code" from his personnel file rejected

Supreme Court dismissed an Article 78 petition filed by a former employee [Plaintiff] of the New York City Department of Education [DOE] challenging its placement of a "problem code" in Plaintiff's employment file and its refusal of his request to begin an "employment investigation" to remove the code. 

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's petition.

Citing  Matter of Pepin v New York City Dept. of Educ., 148 AD3d 443, the Appellate Division held that DOE:

1. Was not prohibited from considering the Petitioner's service during his earlier probationary period in assessing his eligibility for employment; and

2. The assignment of a "problem code"* based upon the discontinuance of Plaintiff's earlier probationary employment was neither arbitrary nor capricious.

Further, opined the Appellate Division, absent a nomination for employment Plaintiff "lacks entitlement to an employment investigation to remove the code."

* In Pepin v New York City Dept. of Education, 45 Misc 3d 1221(A), DOE contended that it did not maintain "any list of persons ineligible for employment" with DOE and told Supreme Court it used "internal codes based on a past employee's employment record to reflect the reason the employee left [DOE's] service." 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05139.htm

 

October 2020 AELE case notes, publications, and seminar alert

Americans for Effective Law Enforcement, Inc. [AELE] case notes, publications, and seminar alerts for October 2020 are set out below.

Click on the text highlighted in color to access the full alert.

Courts Address COVID-19 Issues in Prisons and Jails. New October AELE Law Journal article posted at http://www.aele.org/law/2020all10/2020-10MLJ301.pdf 

Public Safety Discipline and Internal Investigations Seminar --- Attend Virtually On Demand.  A 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations." A first: You can virtually attend the seminar on demand! The seminar became available on Monday, September 28, 2020 and will remain open for 60 days. You can register during the month of October and still have plenty of time to successfully complete this important AELE seminar. Another first is online registration and payment.  ON-DEMAND attendance at the seminar enables you to attend, review, and complete the entire seminar at your convenience, in comfortable surroundings, and gives you the opportunity to replay presentations to make sure you hear the important points of the many presenters. After completing the seminar, you can print out a customized attendance certificate, or take a short assessment and upon its passing, print out a customized certificate that counts as a program credit toward the exclusive AELE Certified Litigation Specialist designation. For registration and more information, click on http://www.aele.org/public-safety-discipline-and-internal-investigations.html

October 2020 Law Enforcement Liability Reporter: This issue has cases on assault and battery: physical, electronic control weapons: dart and stun modes, false arrest: no warrant, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, First Amendment, and medical care. http://www.aele.org/law/2020all10/LR2020OCT.pdf

October 2020 Fire, Police & Corrections Personnel Reporter: This issue has cases on arbitration procedures, Bill of Rights laws, First Amendment, homosexual employees, political discrimination, retaliatory personnel actions, retirement benefits, sex discrimination, whistleblower protection, and workers’ compensation. http://www.aele.org/law/2020all10/FP2020OCT.pdf

October 2020 Jail and Prisoner Law Bulletin: This issue has cases on medical care, medical care: vision, prisoner assault: by inmate, prisoner death/injury, prisoner suicide, retaliation, search and seizure: body cavity, and strip searches: prisoners. http://www.aele.org/law/2020all10/JB2020OCT.pdf

 

School district audits released during the week ending October 2, 2020

On October 2, 2020, New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued. 

Click on the text highlighted in color to access the full report.

Northern Adirondack Central School District – Financial Condition (Clinton County and Franklin County) Auditors found expenditures have exceeded appropriations by a total $626,000 in 2017-18 and 2018-19. Additionally, the budgets are not structurally balanced and have used $1.5 million in appropriated fund balance to fund operations. Because of the district’s ongoing reliance on fund balance to finance expenditures, the total fund balance has declined from about $2.5 million at the beginning of 2017-18 to about $1 million at the end of 2018-19. In addition, the board has not adopted a multiyear financial plan or a plan to address the declining fund balance. 

Northern Adirondack Central School District – Leave Accruals (Clinton County and Franklin County) Auditors determined that employees are allowed to earn vacation leave accruals that exceed the amount allowed in board-approved contracts. Errors occurred in the leave records maintained for 24 of the 33 (73 percent) employees tested. The district overpaid seven employees $29,686 for unused leave accruals. 

Owego-Apalachin Central School District – Special Education Services and Medicaid Reimbursements (Tioga County)  District officials did not ensure that students received all services in accordance with their individual education programs (IEP). Auditors reviewed IEPs for 28 students who received services in 2018-19. They found that these students did not receive 1,057 (39 percent) required physical therapy, speech therapy, occupational therapy and counseling sessions. Five students did not receive any required therapy and counseling services. In addition, officials did not have procedures in place to reschedule missed sessions. The district was not reimbursed for 427 of 729 eligible services (59 percent) totaling $12,170.  

Red Creek Central School District – Financial Management (Wayne County and Cayuga County)   Auditors determined that actions taken by the board and district officials to manage financial condition were not transparent and more taxes were levied than necessary to sustain operations. Approximately $1.5 million (72 percent) of appropriated fund balance from 2016-17 through 2018-19 was not used as planned. In addition, the board did not adopt multiyear financial and capital plans.

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Municipal audits issued during the week ending October 2, 2020

On October 2, 2020, New York State Comptroller Thomas P. DiNapoli announced the following local government audits was issued.

Click on the text highlighted in color to access the full report.

City of Amsterdam – Budget Review (Montgomery County) Auditors found that certain significant revenue and expenditure projections in the 2020-21 adopted budget are not reasonable and other matters that require city officials’ attention. Auditors identified several funds that are not balanced or are not reasonable. The city’s tax levy of $6,047,472 also exceeds the allowable tax levy limit by $187,957. However, the council adopted a local law to override the tax levy limit prior to budget adoption and, as such, was authorized to adopt a budget that included a levy in excess of the tax levy limit.

 

Failure to satisfy procedural requirements bars considering the merits of a CPLR Article 78 petition challenging the termination of a probationary employee

The Petitioner [Teacher] initiated a CPLR Article 78 proceeding in which she challenged her dismissal from her employment as a probationary teacher. Supreme Court dismissed Teacher's Article 78 petition for a number of procedural reasons and Teacher appealed.

Supreme Court dismissed Teacher's petition after determining that Teacher had failed to exhaust her administrative remedies. The decision notes that with respect to the "ineffective" performance rating in her evaluation, her administrative appeal was still pending at the time she had filed her Article 78 petition. The Appellate Division sustained the Supreme Court ruling with respect to Teacher's failure to exhaust her administrative remedy.

Supreme Court had found that Teacher's challenge to the discontinuance of her probationary employment status was time-barred. The Appellate Division affirmed the Supreme Court's ruling concerning the issue of Teacher's failure to file a timely Article 78 petition, explaining that statute of limitations to challenge the decision to terminate her employment as a probationary employee expired on December 12, four months after the effective date of her termination the previous August 11.

Addressing Teacher's motion "to renew," the Appellate Division explained that such a motion must be based upon new facts, i.e., facts that were not offered on Teacher's prior motion "to renew" and that would change the prior determination. As Teacher presented no new relevant facts in the motion to renew she had submitted to Supreme Court, the Appellate Division affirmed Supreme Court's refusal to grant her motion to renew, opining that Teacher's motion to renew failed to meet this standard. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05141.htm

Sisters admit theft of $22,000 of their deceased mother's New York State pension payments

State Comptroller Thomas P. DiNapoli and Westchester County District Attorney Anthony A. Scarpino, Jr. announced the convictions of two sisters alleged to have concealed the death of their mother in order to unlawfully obtain nearly $22,000 from the Retirement System following her death.

The two Westchester County residents each pleaded guilty to one count of felony grand larceny in the fourth degree.* In addition, the sisters have judgments against them to repay the stolen Retirement System funds.

The Comptroller said "[t]hose who try to scam the retirement system will be held accountable" and thanked Westchester County D.A. Scarpino, Jr. "for prosecuting these thefts.”

It was reported that both are to appeared before Westchester County Court Judge David Zuckerman on January 6, 2021, for sentencing.

Individuals may report alleged fraud involving public monies to the State Comptroller by calling the toll-free Fraud Hotline at 1-888-672-4555, by mailing a report of such allegations to the Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236, or by reporting alleged misconduct using the Internet [investigations@osc.state.ny.us].

Westchester County District Attorney Scarpino, Jr. leads the second largest district attorney’s office in New York State. Individuals may email the District Attorney's Office [info@westchesterda.net] to report allegations of fraud involving public funds.

* New York State Penal Code Article 155, posted on the Internet at http://ypdcrime.com/penal.law/article155.htm