Determining a reasonable disciplinary penalty to be imposed on the employee "under the circumstances"

The petitioner [Plaintiff] in this CPLR Article 78 action challenging his termination from his position after being found guilty of disciplinary charges brought against him alleging "gross misconduct-falsification of business records." The Appellate Division, after granting Plaintiff's petition to review the penalty imposed by the Employer [Appointing Authority], remitted the matter to the Appointing Authority for the imposition of a lesser penalty.*

The Appointing Authority did, in fact, imposed a lesser penalty: demotion to a lower grade position. Plaintiff sought review of this new penalty. 

Supreme Court vacated the penalty of demotion and imposed a still lesser disciplinary penalty, a 30-day suspension without pay. Supreme Court further directed that Plaintiff "be restored to his prior position" and remitted the matter to the Appointing Authority to calculate the "back salary and lost compensation" owed to the Plaintiff. The Appointing Authority appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division, citing Matter of Waldren v Town of Islip, 6 NY3d 735 and other court decisions, explained that an "administrative penalty must be sustained unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." 

The court then opined that an administrative penalty is shocking to one's sense of fairness "if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the dereliction of the individual."

Sustaining the Supreme Court determination that the new penalty imposed by the Appointing Authority "was again shocking to one's sense of fairness," the Appellate Division observed that "[t]he penalty of demotion by four salary grades, resulting in an approximate 37% decrease in salary, was so grave in its impact on the [Plaintiff] that it was disproportionate to the misconduct" involved.

In mitigation of imposing the penalty of demotion the court opined that Plaintiff, "had never, in his more than 20-year career with the [agency], been subject to discipline before he was found guilty of the instant offense, and had received positive work performance reviews." In addition, the Appellate Division noted that the Plaintiff was in poor health "when he committed the subject act of misconduct."

Under the particular circumstances of this case, however, the Appellate Division ruled that the reduced penalty imposed by the Supreme Court "was inadequate to address the gravity of the [Plaintiff's] misconduct and the resulting harm to the appellants and the public." Vacating the imposition of a penalty of a 30-day suspension without pay, the Appellate Division remitted the matter to the Appointing Authority "for the imposition of a penalty of one-year suspension without pay."

* See Matter of Sullivan v County of Rockland, 150 AD3d 743.

Click HEREto access the text of the Appellate Division's decision in this matter.

___________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Click on http://booklocker.com/books/7401.html  for more information.

 

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued on March 22, 2021.

The following audits were issued by the New York State Comptroller March 22, 2021:

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

On March 22, 2021 New York State Comptroller Thomas P. DiNapoli announced the following local government audits have been issued.

 

Town of Adams – Justice Court Operations (Jefferson County)

Overall, auditors found court funds were properly recorded, deposited and reported during our audit period. Corrective actions were recommended, however, after auditors found the board’s annual audit of the justices’ books and records is inadequate because it primarily relies on the clerk to perform the review procedures. Also, auditors found none of the justices prepared monthly accountabilities or bank reconciliations. In addition, cash in a retired justice’s bank account exceeded known liabilities by a total of $1,104.

 

Andes Joint Fire District – Financial Activities (Delaware County)

The Board of Fire Commissioners (Board) did not establish adequate controls over cash receipts and disbursements. The board did not segregate duties or provide additional oversight over receipts and disbursements to ensure the treasurer recorded all transactions accurately and timely. The board did not comply with New York State Town Law (Town Law) Section 176. Thirty debit card purchases totaling $4,680 were not audited and approved before payment.

 

Davenport Fire District – Financial Activities (Delaware County)

District officials have not established adequate controls to ensure that financial activities are properly recorded and reported, and cash is safeguarded. There were no records to support the collection of hall rental receipts. As a result, the Board of Fire Commissioners (Board), the district’s treasurer (Treasurer) or auditors are unable to verify whether all hall rental receipts were collected and deposited in a district bank account.

 

City of Hornell – Foreign Fire Insurance Funds (Steuben County)

Officials did not adopt policies and procedures guiding the handling of foreign fire insurance (FFI) tax money and provide oversight to ensure accurate records were maintained, and adequate supporting documentation and approvals were obtained. The Chamberlain did not maintain custody of the FFI tax money. The fire chief was solely responsible for disbursing, recording and reporting all transactions related to FFI tax money.

 

Village of Mayville – Online Banking (Chautauqua County)

Online banking transactions that were reviewed were appropriate, properly supported and authorized, however the board should ensure transactions are secure. The board did not adopt a written online banking policy or implement adequate procedures to monitor and control online banking transactions.

In addition, a dedicated computer was used for online banking but authorized users were not provided with security awareness training.

 

Village of Poquott – Justice Court Operations (Suffolk County)

The Justice Court did not properly account for court funds. The Justice was unaware that in August 2016, the court clerk deposited $6,525 belonging to a neighboring village’s justice court for which she also worked. The error was corrected in October 2016 when she transferred the money between two accounts. The justice was unaware that the court clerk filed 11 of 15 monthly reports of money collected (73 percent) to the JCF after the due date. On average, reports were 14 days late.

 

Town of Wappinger – Recreation Department Cash Receipts (Dutchess County)

Town officials did not develop adequate policies and procedures over department cash collections and did not ensure that cash is deposited timely. Officials did not provide adequate oversight of the department cash receipts process and the duties of the recreation director (Director), and department staff responsibilities were inadequately segregated. Department staff did not deposit 543 collections totaling $42,861 (composed of cash and checks) within 10 days, as required. For example, in July 2019, one deposit (composed of $3,085 in cash and $10,810 in checks) was deposited between 11 and 69 days after the collections.

 

SCHOOL DISTRICT AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following school district audits were issued on March 22, 2021.

Dryden Central School District – Information Technology (Cortland County, Tioga County and Tompkins County)

The Board and District officials did not adequately safeguard personal, private and sensitive information (PPSI). Officials did not ensure information technology (IT) existing policies were enforced (or enforceable). In addition, officials did not ensure IT policies were up-to-date with current technology changes. User accounts were not regularly reviewed and unnecessary accounts were not disabled.  Officials did not maintain up-to-date IT asset inventory records or enter into adequate written contracts with all IT service providers.

 

Whitesboro Central School District – Separation Payments (Herkimer County and Oneida County)

District officials did not ensure that separation payments are accurately calculated, supported and disbursed. Auditors questioned payments to three employees totaling $108,963. District officials paid two former administrators separation payments totaling $66,368 that were not supported by their individual employment contracts and were based on a board resolution adopted over 20 years before their contracts were approved.  District officials also, allowed a former assistant principal to retire early and receive a $42,595 separation payment and post-employment health benefits that he otherwise would not have been eligible for based on the collective bargaining agreement.

 

Wyoming Central School District – Professional Services (Genesee County and Wyoming County)

District officials did not always use a competitive method to procure professional services or enter into written agreements with service providers. The district paid 11 professional service providers a total of $189,000 without using requests for proposals (RFPs) as required by the district’s procurement policy.

 

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

Computer technology and the law

Recent articles by Rochester, New York, attorney Nicole Black posted on the Internet addressing the use of computer technology and the law.

● Round Up: Document Assembly Software, Legal Tech Adoption, and Cybersecurity

● N.Y. Bar opines on online lawyer-client matching services

● The importance of technology competence when communicating electronically

● Round Up: Law Practice Management Software, Clubhouse, Remote Work Ethical Guidance & More

● The internet is forever, so behave accordingly

Ms. Black posts a law blog, Sui Generis, at https://nylawblog.typepad.com/suigeneris/

COBRA Coverage Under The American Rescue Plan Act of 2021

In an article posted on the Internet by The National Law Review,* Attorneys Matthew A. Secrist and Gregory J. Vivilani of the firm of Squire Patton Boggs opine:

"Many employers that have Section 9501 of the American Rescue Plan Act of 2021 (the 'ARPA') requires employers to extend offers of free COBRA coverage to certain individuals for the period from April 1, 2021 through September 30, 2021.

"The law also requires employers to extend offers of COBRA coverage to other individuals whose right to COBRA coverage previously ended.

"In an effort to help offset the costs of providing free COBRA coverage, the law makes available tax credits that may be taken against employer Medicare taxes. The tax credits are based on the COBRA premiums that would have been payable by the qualified beneficiary for the relevant free COBRA coverage.

"This portion of the law has an unusual twist. Except as may otherwise be provided by the Secretary of the Treasury, the tax credits are provided to the following persons:

   > If the plan is a multiemployer plan, the multiemployer plan itself. 

   > If the plan is fully or partially self-insured, to the employer that sponsors the plan (including state and local governmental employers)

   > If the plan is not described above, to the insurance company"

* Read More on Free and Extended COBRA Coverage Here

 NYPPL has linked this article posted on the Internet by The National Law Review pro bono.

 

Computer printers may be an agency's weakest link in terms of cybersecuity

In response to the COVID-19 pandemic, state and local governments rapidly shifted employees to remote work. Many agencies may retain remote work permanently in some form as recent research conducted by the Center for Digital Government revealed that almost 75 percent of state and local government respondents expect a hybrid of remote and in-office work to be the norm for their employees going forward.

The Center asks "Are your printers the weakest security link in this new highly distributed workplace environment?"

The Center and HP will host an interactive discussion that will explain what the permanent shift to hybrid work means for endpoint security on March 31 at 11 a.m. Pacific/2 p.m. Eastern. This 45-minute webcast will will focus on why securing your organization’s printers is just as important as protecting PCs, laptops and mobile devices connected to your network. Topics to be discussed include:

Assessing current endpoint security risks and develop a holistic plan to mitigate them;

How managed print services can close dangerous security vulnerabilities in your printer fleet; and

What to look for in hardware, software and firmware to strengthen print security and performance.

Featured Speakers:

    Michael Howard, Head of Security and Analytics Practice, HP
    Paul Knoblich, General Manager US Public Sector Print, HP
    Deborah Snyder - Moderator, Senior Fellow, Center for Digital Government

Registration is complimentary, and all attendees will have the opportunity to download a certificate of attendance at the completion of the webinar on March 31, 2021.

NYPPL has linked this notice posted on the Internet by Government Technology pro bono.

 

Leave for COVID-19 Vaccinations applicable to employees of the State as the employer

The New York State Department of Civil Service has published Bulletin 2021-1, of its Attendance and Leave Manual Policy adding a new section, §21.12,  addressing the State's attendance and leave policy applicable to officers and employees of the State as the Employer absent from work for the purpose of COVID-19 vaccinations. 

Attendance and Leave Manual Policy §21.12 

"Legislation enacted in March 2021 (Chapter 77, Laws of 2021) amended the Civil Service Law to entitle all employees regardless of Attendance Rules coverage to take up to four hours of paid leave for receiving each COVID-19 vaccination. This provision became effective March 12, 2021. A copy of this legislation is attached.*

"Specifically, section 159-c of the Civil Service Law was added to entitle State officers and employees to paid leave without charge to leave credits to receive COVID-19 vaccinations. 

"Employees who received a vaccination during work hours prior to March 12, 2021, are required to charge leave accruals or be granted a leave without pay.

"The appointing authority may require satisfactory medical documentation that the employee’s absence was for the purpose of the COVID-19 Vaccination.

"Employees are entitled to a leave of absence for COVID-19 vaccinations scheduled during the employees’ regular work hours.  Employees who undergo vaccinations outside their regular work schedules do so on their own time.  For example, employees are not granted compensatory time off for vaccinations that occur on pass days or holidays.

"Up to four hours of paid leave is allowed for each dose of the vaccination.

"Accordingly, employees who receive a vaccination that is administered in two doses would get up to four hours of paid leave for each dose.  Travel time (based on travel to and from the employee’s worksite) is included in this four-hour cap.  Absence beyond the four-hour caps must be charged to leave credits.

"Any questions about these provisions should be referred to the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295"

 

*Attachment

"Chapter 77 of the Laws of 2021 amended the Civil Service Law effective March 12, 2021, by adding §159-c, to read as follows:

"§159-c. Leave time for COVID-19 vaccination. 1. Every public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system shall be entitled to absent himself or herself and shall be deemed to have a paid leave of absence from his or her duties or service for a sufficient period of time, not to exceed four hours per vaccine injection, unless such officer or employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19.

"2. The entire period of the leave of absence granted pursuant to this section shall be excused leave and shall not be charged against any other leave such public officer or employee is otherwise entitled to.

"3. Nothing in this section shall be deemed to impede, infringe, diminish or impair the rights of a public employee or employer under any law, rule, regulation or collectively negotiated agreement, or the rights and benefits which accrue to employees through collective bargaining agreements, or otherwise diminish the integrity of the existing collective bargaining agreement."

 

 

New York State laws amended to provide time off with pay to receive COVID 19 vaccination for employees in public sector and in the private sector

With respect to employees in the public sector,* New York State's Civil Service has been amended by adding a new section, §159-c, to read as follows: 

§159-c. Leave time for COVID-19 vaccination. 1. Every public officer,  employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee  of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New Yorkstate teachers' retirement system shall be entitled to absent himself or herself and shall be deemed to have a paid leave of absence from his or her duties or service for a sufficient period of time, not to exceed four hours per vaccine injection, unless such officer or employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19.

2. The entire period of the leave of absence granted pursuant to this  section shall be excused leave and shall not be charged against any other leave such public officer or employee is otherwise entitled to.

3. Nothing in this section shall be deemed to impede, infringe, diminish or impair the rights of a public employee or employer under any law, rule, regulation or collectively negotiated agreement, or the rights and benefits which accrue to employees through collective bargaining agreements, or otherwise diminish the integrity of the existing collective bargaining agreement.

With respect to employees in the private sector, New York State's Labor Law has been amended by adding a new §196-c to read as follows:

§196-c. Leave time for COVID-19 vaccination. 1. Every employee shall be provided a paid leave of absence from his or her employer for a sufficient period of time, not to exceed four hours per vaccine injection, unless such employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19.

2. The entire period of the leave of absence granted pursuant to this section shall be provided at the employee's regular rate of pay and shall not be charged against any other leave such employee is otherwise entitled to, including sick leave pursuant to section one hundred ninety-six-b of this article, or any leave provided pursuant to a collective bargaining agreement.

3. The provisions of this section may be waived by a collective bargaining agreement, provided that for such waiver to be valid, it shall explicitly reference this section of law.

*  See also Chapter 78 of the Laws of 2021 establishing a Coronavirus Disease 2019 [COVID-19] public employee death benefit for individuals who reported to their usual place of employment or an alternate worksite at the direction of their employer on or after March 1, 2020 and such individual contracted COVID-19 within 45 days of reporting to such workplace as confirmed by a laboratory test or by a licensed physician and such individual died on or before December 31, 2022.

Both Chapter 77 and 78 are now in effect and will be "deemed repealed" effective December 31, 2022.

 

An employee's suspension with pay pending disciplinary action may not constitute work for the purposes of qualifyiing for unemployment insurance benefits

§75.3 of the Civil Service Law, and some collective bargaining agreements, authorize the suspension of an employee with pay pending the hearing and determination of disciplinary charges filed against the employee alleging incompetency or misconduct. 

An employee [Claimant] was served with disciplinary charges and was suspended without pay from her employment for several 30-day periods. As relevant here, Claimant filed an original claim for unemployment insurance benefits effective January 15, 2018 and received benefits. The employer [Employer] then suspended Claimant with pay effective January 30, 2018, and Claimant did no further work for the Employer before being terminated from her employment effective January 25, 2019. Claimant then filed a subsequent claim for unemployment insurance benefits effective January 28, 2019. 

A Workers' Compensation Administrative Law Judge [ALJ] sustained the Department of Labor's administrative determination that Claimant was ineligible to receive further unemployment insurance benefits. The ALJ, in essence, held that a suspended employee is not performing any "work in employment" for which he or she could receive remuneration as required by §527[6] (emphasis supplied in Appellate Division's decision). 

Claimant appealed the ALJ's ruling to the Unemployment Insurance Appeal Board [Board]. The Board, sustaining the ALJ's determination, concluded that Claimant "had insufficient wages to meet the work requirements to re-qualify for a subsequent original claim and had not worked in employment and been paid remuneration for such work equal to at least 10 times [her] weekly benefit rate."

The Board had rejected Claimant contention that such monies did "constitute remuneration for work ... so as to count toward her eligibility to file a subsequent claim", citing the Board's decision set out in Matter of Appeal Board No. 569753* in support of her claim. Claimant appealed. 

Noting that Claimant performed no work for the Employer during the relevant period, the court said the question to be resolved is whether "the monies she received while suspended [with pay] constituted remuneration for work in employment so as to count toward her eligibility to file a subsequent valid original claim."

The Appellate Division then affirmed the Board's determination, explaining that to file a subsequent valid original claim, the applicant "must have worked in employment and been paid remuneration for such work since the beginning of such previous claim in an amount equal to at least [10] times the claimant's weekly benefit rate," citing Labor Law §527[6].**

The Appellate Division observed that the Board had adopted the decision of the ALJ, rejecting Claimant's argument that its decision in Appeal Board No. 569753 controlled, and opined that it perceived "nothing unreasonable in that distinction, which comports with the statutory language, and therefore [found] substantial evidence in the record to support the Board's determination that [Claimant] had not 'worked in employment and been paid remuneration for such work' in a sufficient amount to file a subsequent valid original claim."

* Claimant had relied upon Appeal Board No. 569753 in advancing her appeal to the Board, pointing out that in Board No. 569753 the Board held that an individual serving a paid suspension under the terms of a collective bargaining agreement was performing a service so as to fall within the statutory definition of employment. See https://uiappeals.ny.gov/system/files/documents/569753-appeal-decision.pdf.

** §527[6] of the Labor Law provides as follow: "Work requirement. An individual who has filed a previous valid original claim pursuant to this section must have worked in employment and been paid remuneration for such work since the beginning of such previous claim in an amount equal to at least ten times the claimant's weekly benefit rate in order to be able to file a subsequent valid original claim.

Click HEREto access the text of the Appellate Division's ruling.

 

Special Military Benefits and Post-Discharge Benefits available to employees of New York State as the employer through December 31, 2021

The Governor's Office of Employee Relations has signed Memoranda of Understanding with the Civil Service Employees Association, Council 82, District Council 37, NYS Correctional Officers and Police Benevolent Association, Police Benevolent Association of New York State, Graduate Students Employee Union, Public Employees Federation, and United University Professions, extending current special military benefits for service in connection with the war on terror, and certain benefits in connection with return from military duty for duty related to the war on terror that exceeds 180 days' duration through December 31, 2021. 

The same benefits provided in these MOUs are extended to State personnel designated Managerial or Confidential employees for the purposes of Article 14 of the Civil Service Law [the Taylor Law].

Provisions of the MOUs are not grievable.

The existing special military benefits extended under these MOUs are administered in accordance with previously issued memoranda.

New York State Departments and Agencies should consult the following memoranda to ensure proper administration of these benefits:

GIB 2001-04	Special Military Benefits for State Employees Activated in Connection with the Events of September 11, 2001
AM 2001-06	Special Military Leave for Employees Activated in Connection with the Events of September 11, 2001
AM 2002-01	Frequently Asked Questions about Special Military Leave in Connection with the Events of September 11th
AM 2002-03	Training Leave at Reduced Pay for Military Duty Not Related to the Events of September 11th and Extension of Special Military Leave in Connection With the Events of September 11th
AM 2004-01	Clarification of Special Military Leave Benefits
AM 2007-01	Memoranda of Understanding on Extension of Special Military Benefits and New Post-Discharge Benefits

Questions concerning these benefits should be directed to the Attendance and Leave Unit of the New York State Department of Civil Service [(518) 457-2295].

 

Taxable Fringe Benefit Essentials - A Webinar for Government and Tax Exmpt Employers

The Tax Exempt and Government Entities Division of the Internal Revenue Service [IRS] is hosting a free Webinar titled Taxable Fringe Benefit Essentials for Employerson April 14, 2021 at 1:00 p.m. (ET).  

This Webinar will cover the most common fringe benefits and explain if those fringe benefits are taxable.

Officers and employee of government and tax exempt entities and other interested parties may enroll to watch this free Webinar that is designed to explain what a fringe benefit is and how to value a fringe benefit by clicking here to register .

Additional information is available at Webinars for Tax Exempt & Government Entities. 

 

 

 

Providing electronic records in response to Freedom of Information Law requests

In this proceeding pursuant to CPLR Article 78 to compel the production of certain documents pursuant to the Freedom of Information Law [FOIL]* sought by the Petitioner [Plaintiff], the Appellate Division explained:

1. As a general rule, a governmental entity [Agency] responding to a FOIL request is not required to create any new record or data that is not already possessed and maintained by it as such.

2. Pursuant to Public Officers Law §89[3][a], some information maintained in an electronic format may be retrieved, compiled, and disclosed if doing so requires only a "reasonable effort".

Here, said the court, the Records Access Officer [Custodian] of the records in question stated that he lacked the technical sophistication to manually transfer the email addresses onto an Excel spreadsheet in order to provide an electronically formatted response to the Plaintiff's FOIL request.

However, the Appellate Division said Custodian did not address whether any other employee of the Agency could, with a reasonable degree of time and effort, create "an Excel spreadsheet" that would comply with the terms of Plaintiff's FOIL request. Citing Data Tree, LLC v Romaine, 9 NY3d at 466, the court opined that "[i]t cannot be said, therefore, that the [Plaintiff's] amended petition fails to state a cause of action, as it presents a question of fact as to whether reasonable efforts by [the Agency's] employees could be undertaken to provide an electronically formatted response."

The Appellate Division also noted that Supreme Court should not have granted that portion of the Agency's motion to dismiss that part of the Plaintiff's amended petition alleging FOIL violations pertaining to the Petitioner's request for a copy of the Custodian's email and its recipient list. The amended petition, said the court,  described a portion of the email as being defamatory toward Plaintiff.

Addressing the alleged "defamation," the court indicated that in an electronic response by the Agency's attorney [Counsel], the Petitioner was told that the Custodian was not required to respond to "factual characterizations and legal conclusions," which might be a cryptic reference to any potential allegation that the Custodian's email at issue was defamatory. However, said the court, Counsel stopped short of addressing whether the email and its recipient list would or would not be provided by the Agency and the Agency gave no further response related to this request.

Finally, as the Agency did not advise Petitioner of the availability of an administrative appeal as required by 21 NYCRR 1401.7(b), the Appellate Division said that the Supreme Court erred in concluding that the Petitioner's administrative appeal was time barred. Accordingly, the Appellate Division concluded that Supreme Court should not have granted that branch of the Agency's motion which was to dismiss so much of the amended petition as related to that FOIL request and remitted the matter  to Supreme Court "for a determination on the merits after the Agency serve and file their answer and, if necessary, complete the administrative record."

* Public Officers Law Article 6.

Click HERE to access the text of the Appellate Division's decision.

 

Distinguishing between prohibited, mandatory, and non-mandatory subjects of collective bargaining within the meaning of the Taylor Law

The Union of Automotive Technicians, Local 563, [Union] filed an improper practice charge with the Port Authority Relations Panel [Panel] alleging that  the Authority had revised its Security Identification Display Area [SIDA] clearance application form without negotiating changes in the form with the Union.

The earlier form required disclosure of "disqualifying offenses enumerated in 49 CFR 1542.209(d)". The new application form, however, required applicants to disclose "all offenses, other than certain traffic offenses, of which they had ever been convicted, or found not guilty by reason of insanity."

The Panel dismissed the Union's charge, holding that the requirements to disclose additional convictions were not terms and conditions of employment and thus not mandatory subject of collective bargaining within the meaning of Article 14 of the Civil Service Law, the so-called Taylor Law. The Union then filed a CPLR Article 78 petition in Supreme Court appealing the Panel's ruling. Supreme Court transferred the matter to the Appellate Division.*

Sustaining the Panel's determination, the Appellate Division indicated that it viewed the revised application form as:

1. An exercise of Port Authority's managerial prerogative to determine job qualifications, and amounted to "policy decisions relating to the primary mission of the public employer;" and

2. Section III(D) of Port Authority's Labor Relations Instruction excludes "the mission and management responsibilities of the Authority, including its ... staffing [and] operating ...  policies" from mandatory negotiation.

Other court decisions addressing areas excluded from mandatory negotiations within the meaning of the Taylor Law include City of Plattsburgh v Local 788, 108 AD2d 1045 and Szumigala v Hicksville Union Free School District, 148 AD2d 621.

Plattsburg involved the diminishing or impairing employee seniority for the purposes of layoff upon the abolishment of positions. The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff; the "date of hire" was to be used to determine an employee's seniority. The City laid off Employee A rather than another worker, Employee B. While A, had been employed by the City for a longer period than B, B had received his permanent appointment before A was permanently appointed. Plattsburgh won an order prohibiting arbitration of the issue. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" granted employees that the City was powerless to bargain away.

In Szumigala, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

In Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660, the court addressed a prohibited negotiating demand. Here the high court ruled that "[p]ublic policy requires that police departments retain the authority given them by Civil Service Law §61(1) to select one of three candidates for such promotions, thus barring an appointing authority from agreeing, in the course of collective bargaining, to limit its discretion in selecting a candidate for promotion by requiring the appointing authority to follow the so-called "rule of the list."

In contrast, Matter of Professional, Clerical, Tech. Empls. Assn. (Buffalo Bd. of Educ.), 90 NY2d 364, is an example of a non-mandatory negotiating demand with respect to negotiating the rule of the list. Here the Court of Appeals held that a public employer could, without violating public policy, agree to forgo its statutory authority to choose from among any of three candidates for promotion to clerical and secretarial positions. Here the use of the "rule of the list" was held not to offend pubic policy insofar as appointments of candidates to clerical or secretarial positions were concerned.

* Addressing a procedural issue, the Appellate Division said the Article 78 proceeding should not have been transferred to it as the petition did not raise an issue of substantial evidence but, "as a matter of judicial economy," it elected to retain jurisdiction "to dispose of all issues raised" in the Union's Article 78 petition.

Click HERE to access the text of the Port Authority decision.