Report alleges NYS Department of Corrections’ former Food Production Center director violated the Public Officers Law
Source: The Office of the State Comptroller
The former director of the State Department of Corrections’ (DOCS) prison food production operation and his staff routinely traded favors and gifts with favored businesses that were rewarded with millions of dollars in state purchases according to a report released by State Comptroller Thomas P. DiNapoli and State Inspector General Joseph Fisch dated August 31, 2010.
DiNapoli’s and Fisch’s audit and investigation centered on Howard Dean, the former director of the Food Production Center, and his staff. The Comptroller's Office said that DiNapoli and Fisch have forwarded the findings of their report to the Oneida County District Attorney’s Office and the State Commission on Public Integrity.
Comptroller DiNapoli said “Corruption should never be tolerated on any level. But the abuses we discovered here, at a state criminal justice agency, committed at a time when New York’s taxpayers are finding it harder and harder to make ends meet, are beyond the pale. And all of this mushroomed in a culture of acceptance at DOCS. We’re referring our findings to law enforcement and public integrity officials.”
State's Inspector General Fisch commented that “Once again, we witness another distressing spectacle by this public official who did not hesitate to violate the law and his oath of office in order to reap personal reward and benefits. For 13 years, Dean enjoyed free parties and picnics while not only steering $2.5 million in business to favored vendors, but to vendors who are prohibited from doing business in New York State.”
Among the findings:
1. In violation of the State's Public Officers Law, "for at least 13 years, Dean and other DOCS staff were provided free meals by at least two vendors – Global Food Industries (GFI) and Good Source – that had $2.5 million annually in purchases with the Food Production Center. "
"2. Dean directed Sysco Food Services to use these two vendors as suppliers, thereby guaranteeing them $1.7 million annually in business with DOCS.
"3. Sysco’s purchase of products from the South Carolina-based GFI at Dean’s direction helped Dean and GFI skirt around New York State Finance Law which prohibits state agencies from doing business directly with companies that reside in states, like South Carolina, that discriminate against NYS businesses.
"4. Likewise, Dean directed NYS Industries for the Disabled, a preferred source of state purchases, to purchase products from GFI, again allowing GFI to make money off of state purchases contrary to the law. GFI made $796,000 annually through this arrangement.
"5. Dean and his staff solicited free food and donations from vendors for an annual Christmas party and a three-day-long annual picnic. Any left-over moneys were deposited in an employee benefit fund and used for food production center employee benefits throughout the year, including morning bagels.
"In addition, the Comptroller and the Inspector General stated that 'Vendors often bid on donated items with proceeds going to the employee benefit fund. All Correctional Services employees, including those at the highest levels of the organization, were invited to the picnic at no cost. Management should have questioned how such an event could be hosted by a state agency at no cost to employees or their families.'"
"DiNapoli’s auditors found no documentation demonstrating that millions of dollars in purchases were based on open competition. In fact, one favored vendor was tipped off about the potential missing ingredient essential in the production of cheese sauce the Food Production Center wished to utilize. Because none of the other vendors had this inside information, the favored vendor received the state’s business.
"Internal controls that might have prevented Dean from engaging in this conduct were virtually non-existent at DOCS. One supervisor, Russell DiBello, former Correctional Services Chief Fiscal Officer, stated that he saw no need to monitor Dean – despite that Dean managed a $55 million budget – because he received no inmate complaints about food.
"DiNapoli and Fisch have recommended that DOCS officials institute safeguards to ensure these abuses don’t occur in the future, and assist the Oneida County District Attorney and the State Commission on Public Integrity as needed. State law requires the DOCS commissioner to report to the Governor, Comptroller and leaders of state legislative committees what corrective action the department has taken, and if action is not taken, why."
The complete text of the report is posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093010/09s6.pdf
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
Aug 31, 2010
Commissioner rules excessed teacher’s failure to request or indicate any assumption of the teacher’s retention on the preferred list a fatal omission
Commissioner rules excessed teacher’s failure to request or indicate any assumption of the teacher’s retention on the preferred list a fatal omission
Appeal of Staci Beauchamp and the City School District of the City of Glen Cove and Melanie Tuthill Odone, Decisions of the Commissioner of Education, Decision #16,123
Staci Beauchamp appealed the decision of the Board of Education of the City School District of the City of Glen Cove to appoint Melanie Tuthill Odone as a reading teacher. Beauchamp, a tenured reading teaching, accepted a .4 part time reading teacher position when she was advised that her full time position was being abolished effective September 1, 2006.
Although Beauchamp initially had accepted the .4 part time appointment on June 13, 2006, she submitted her resignation from the position on June 23, 2006. The Commissioner’s decision indicates that the Board subsequently “accepted” the resignation.*
In early 2009, Beauchamp learned of a reading teacher vacancy in the district. In response to her inquiry concerning the availability of the position, she was told by the Assistant to the Superintendent for Personnel that as she had resigned from her [part time] position, “she did not qualify for reappointment.”
Tuthill Odone was subsequently hired to fill the reading teacher position and ultimately the issue was appealed to the Commissioner.
Beauchamp argued that she had been “fraudulently and/or falsely induced to resign by the board’s Executive Director of Human Resources” who had told her that “a resignation was a condition precedent to working in another school district and remaining on the preferred eligibility list in Glen Cove.”
The district, on the other had, contended that Beauchamp relinquished all rights to a teaching position in the district when she submitted her unconditional resignation and “that at no time did any agent or employee of the board make any false statement to [Beauchamp] in order to induce her to resign her teaching position.”
The Commissioner rejected Beauchamp’s appeal commenting that “it is clear that a teacher who severs his or her service with a district, through retirement or resignation, no longer has recall rights pursuant to Education Law §§2510 and 3013” [citations omitted].
Further, said the Commissioner, “[A]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted by school authorities,” citing Schmitt v. Hicksville UFSD No. 17, 200 AD2d 661.
The Commissioner said that Beauchamp did not prove that her resignation was involuntary and although the Executive Director’s alleged false statement may have provided motive for her resignation, “it cannot be said that her will was overcome and that she was not capable of exercising free choice.” Thus, the Commissioner ruled, Beauchamp’s allegations of duress and coercion must be dismissed.
The Commissioner also rejected Beauchamp’s claim that her resignation was a nullity because it was entered into under a mutual mistake of fact, i.e. that “she had to resign to work elsewhere and be placed on the school district’s preferred eligibility list.”
Significantly, the Commissioner said the Beauchamp failed to demonstrate that there was a mutual mistake of fact and that the school district justifiably assumed that she, “by submitting a letter of resignation, wished to sever her ties with the district” as her letter of resignation did not indicate that “she wished to remain on the preferred eligibility list, or indicate any expectation that she would so remain.”
* Except where required by law, acceptance of a resignation is not required for it to take effect; all that is required is that the resignation be delivered to the appointing authority before it is withdrawn or rescinded by the officer or employee. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district "and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied]. See, also, §2110.3 of the Education Law.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16123.htm
Appeal of Staci Beauchamp and the City School District of the City of Glen Cove and Melanie Tuthill Odone, Decisions of the Commissioner of Education, Decision #16,123
Staci Beauchamp appealed the decision of the Board of Education of the City School District of the City of Glen Cove to appoint Melanie Tuthill Odone as a reading teacher. Beauchamp, a tenured reading teaching, accepted a .4 part time reading teacher position when she was advised that her full time position was being abolished effective September 1, 2006.
Although Beauchamp initially had accepted the .4 part time appointment on June 13, 2006, she submitted her resignation from the position on June 23, 2006. The Commissioner’s decision indicates that the Board subsequently “accepted” the resignation.*
In early 2009, Beauchamp learned of a reading teacher vacancy in the district. In response to her inquiry concerning the availability of the position, she was told by the Assistant to the Superintendent for Personnel that as she had resigned from her [part time] position, “she did not qualify for reappointment.”
Tuthill Odone was subsequently hired to fill the reading teacher position and ultimately the issue was appealed to the Commissioner.
Beauchamp argued that she had been “fraudulently and/or falsely induced to resign by the board’s Executive Director of Human Resources” who had told her that “a resignation was a condition precedent to working in another school district and remaining on the preferred eligibility list in Glen Cove.”
The district, on the other had, contended that Beauchamp relinquished all rights to a teaching position in the district when she submitted her unconditional resignation and “that at no time did any agent or employee of the board make any false statement to [Beauchamp] in order to induce her to resign her teaching position.”
The Commissioner rejected Beauchamp’s appeal commenting that “it is clear that a teacher who severs his or her service with a district, through retirement or resignation, no longer has recall rights pursuant to Education Law §§2510 and 3013” [citations omitted].
Further, said the Commissioner, “[A]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted by school authorities,” citing Schmitt v. Hicksville UFSD No. 17, 200 AD2d 661.
The Commissioner said that Beauchamp did not prove that her resignation was involuntary and although the Executive Director’s alleged false statement may have provided motive for her resignation, “it cannot be said that her will was overcome and that she was not capable of exercising free choice.” Thus, the Commissioner ruled, Beauchamp’s allegations of duress and coercion must be dismissed.
The Commissioner also rejected Beauchamp’s claim that her resignation was a nullity because it was entered into under a mutual mistake of fact, i.e. that “she had to resign to work elsewhere and be placed on the school district’s preferred eligibility list.”
Significantly, the Commissioner said the Beauchamp failed to demonstrate that there was a mutual mistake of fact and that the school district justifiably assumed that she, “by submitting a letter of resignation, wished to sever her ties with the district” as her letter of resignation did not indicate that “she wished to remain on the preferred eligibility list, or indicate any expectation that she would so remain.”
* Except where required by law, acceptance of a resignation is not required for it to take effect; all that is required is that the resignation be delivered to the appointing authority before it is withdrawn or rescinded by the officer or employee. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district "and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied]. See, also, §2110.3 of the Education Law.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16123.htm
COBRA web page updated
COBRA web page updated
DOL press release
The Department of Labor's Employee Benefits Security Administration has updated its COBRA web page to add a fact sheet and FAQs on maintaining health coverage after the COBRA premium reduction ends. The updates are posted at:
http://www.dol.gov/ebsa/newsroom/fsExpiringSubsidy.html
and at
http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html#section5,
respectively.
DOL press release
The Department of Labor's Employee Benefits Security Administration has updated its COBRA web page to add a fact sheet and FAQs on maintaining health coverage after the COBRA premium reduction ends. The updates are posted at:
http://www.dol.gov/ebsa/newsroom/fsExpiringSubsidy.html
and at
http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html#section5,
respectively.
Jurisdiction to consider unilateral changes in terms and conditions of employment
Jurisdiction to consider unilateral changes in terms and conditions of employment
Roma v Susquehanna Valley CSD, 92 N.Y.2d 489 [246 AD2d 714 reversed]
The primary issue on this appeal is whether a complaint of a public employer’s unilateral change in a term and condition of employment that is expressly covered by its collective bargaining agreement (CBA) with an employee organization lies within the exclusive jurisdiction of the State Public Employment Relations Board (PERB), or may be resolved through the grievance procedures of the CBA.
The Civil Service Law § 205 (5) (d) jurisprudence of PERB, which in the view of the Court of Appeals correctly reflects the legislative intent of the enactment, points the parties to a resolution of their dispute in this case through the nonbinding grievance procedures of the CBA (subject to judicial review), rather than through an improper employer practice charge before PERB for failing to negotiate in good faith.
Consequently, the high court said that the Appellate Division erred in dismissing the petition on the ground that PERB had exclusive subject matter jurisdiction over this controversy. Agreeing with Supreme Court that the CBA unambiguously precluded the school district’s unilateral action here, the Court of Appeals said that the judgment of Supreme Court should be reinstated.
The text of the ruling is filed on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/[Registration required]
Roma v Susquehanna Valley CSD, 92 N.Y.2d 489 [246 AD2d 714 reversed]
The primary issue on this appeal is whether a complaint of a public employer’s unilateral change in a term and condition of employment that is expressly covered by its collective bargaining agreement (CBA) with an employee organization lies within the exclusive jurisdiction of the State Public Employment Relations Board (PERB), or may be resolved through the grievance procedures of the CBA.
The Civil Service Law § 205 (5) (d) jurisprudence of PERB, which in the view of the Court of Appeals correctly reflects the legislative intent of the enactment, points the parties to a resolution of their dispute in this case through the nonbinding grievance procedures of the CBA (subject to judicial review), rather than through an improper employer practice charge before PERB for failing to negotiate in good faith.
Consequently, the high court said that the Appellate Division erred in dismissing the petition on the ground that PERB had exclusive subject matter jurisdiction over this controversy. Agreeing with Supreme Court that the CBA unambiguously precluded the school district’s unilateral action here, the Court of Appeals said that the judgment of Supreme Court should be reinstated.
The text of the ruling is filed on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/[Registration required]
Vesting health insurance rights
Vesting health insurance rights
Handy v Schoharie County, Appellate Division 244 A.D.2d 842
In the Handy case, the Appellate Division said a legislative body may adopt of a resolution that alters a retiree’s health insurance benefits and that such a change can be legally applied to people who retired prior to the vote to change benefits.
In December 1995, the Schoharie County Board of Supervisors adopted three motions changing its policy with respect to its providing County retirees health insurance benefits.
Under the new policy, any elected County official who completed 10 or more years of service would be entitled to “health insurance” at the County’s expense upon retirement. Prior to this change Schoharie paid the health insurance premiums for the retiree and his or her spouse if the retired employee had completed five years of County service and was receiving a state retirement allowance.
David E. Handy retired from the Board of Supervisors on December 31, 1995, having served as a member since 1978. The Board, however, at its January 19, 1996 meeting rescinded several December 1995 motions relating to health insurance for retirees.
The Board next reinstated its former policy with respect to providing health insurance to its retired employees. Because he was not receiving a state retirement allowance, the County said it would not pay for Handy’s health insurance in retirement.
Handy sued, contending that under the Board’s December 1995 actions he was “entitled to health insurance paid at [Schoharie County’s] expense as [he had] met the requirement of a vested right.”
The Appellate Division disagreed, holding that the County was under no contractual obligation to provide [Handy] with health insurance and, accordingly, it did not act arbitrarily or capriciously in terminating that benefit.
The Handy decision should be contrasted with two other retiree benefits cases: Della Rocco v City of Schenectady and Andriano v City of Schenectady.
The Schenectady cases differed in that they concerned executive action as opposed to legislative action and Taylor Law agreements were involved and held to control.
On August 28, 1997, State Supreme Court Justice Robert E. Lynch ruled that Schenectady must provide fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the municipality is bound by the Taylor Law agreement in effect when employees retired.
The fact that the Taylor Law agreements had expired did not alter the municipality’s obligations to retirees under them.
The key element was the existence or absence of a contractual obligation to provide retirees a benefit.
The Appellate Division pointed out that an act of a legislative body will be treated as a contract only when the language and the circumstances manifest a legislative intent to create a private right of a contractual nature.
As an illustration, the Court commented that in Cook v City of Binghamton, 48 NY2d 323, the Court of Appeals said that “certain types of legislative acts, including those fixing salaries and compensation ... are not presumed to create a contract.”
Quoting from the U.S. Supreme Court’s ruling in Dodge v Board of Education, 302 US 74 at page 79, the Court of Appeals said that “the presumption is that such a law is not intended to create a private contractual right or vested right but merely declares a policy to be pursued until the [legislative body] shall ordain otherwise.”
The Appellate Division said that it found nothing in the December 1995 actions by the Board that it “intended to fetter its power in the future” with respect to health insurance. “Rather than evincing an intent to create a private contractual or vested right, the motions are more reasonably read as declarations of [the Board’s] policy.”
Notwithstanding the fact that Handy would have enjoyed health insurance benefits at the expense of the County had the December motions not been repealed, the Appellate Division decided that the Board’s December 1995 actions did not create a contractual property right enforceable against Schoharie County.
As to any claim that the Board’s action gave Handy a vested retirement benefit, in Lippman v Sewanhaka Central High School District, 66 NY2d 313, the Court of Appeals decided that health insurance for retirees is not a retirement benefit protected against being diminished or impaired by the State’s Constitution.
Handy v Schoharie County, Appellate Division 244 A.D.2d 842
In the Handy case, the Appellate Division said a legislative body may adopt of a resolution that alters a retiree’s health insurance benefits and that such a change can be legally applied to people who retired prior to the vote to change benefits.
In December 1995, the Schoharie County Board of Supervisors adopted three motions changing its policy with respect to its providing County retirees health insurance benefits.
Under the new policy, any elected County official who completed 10 or more years of service would be entitled to “health insurance” at the County’s expense upon retirement. Prior to this change Schoharie paid the health insurance premiums for the retiree and his or her spouse if the retired employee had completed five years of County service and was receiving a state retirement allowance.
David E. Handy retired from the Board of Supervisors on December 31, 1995, having served as a member since 1978. The Board, however, at its January 19, 1996 meeting rescinded several December 1995 motions relating to health insurance for retirees.
The Board next reinstated its former policy with respect to providing health insurance to its retired employees. Because he was not receiving a state retirement allowance, the County said it would not pay for Handy’s health insurance in retirement.
Handy sued, contending that under the Board’s December 1995 actions he was “entitled to health insurance paid at [Schoharie County’s] expense as [he had] met the requirement of a vested right.”
The Appellate Division disagreed, holding that the County was under no contractual obligation to provide [Handy] with health insurance and, accordingly, it did not act arbitrarily or capriciously in terminating that benefit.
The Handy decision should be contrasted with two other retiree benefits cases: Della Rocco v City of Schenectady and Andriano v City of Schenectady.
The Schenectady cases differed in that they concerned executive action as opposed to legislative action and Taylor Law agreements were involved and held to control.
On August 28, 1997, State Supreme Court Justice Robert E. Lynch ruled that Schenectady must provide fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the municipality is bound by the Taylor Law agreement in effect when employees retired.
The fact that the Taylor Law agreements had expired did not alter the municipality’s obligations to retirees under them.
The key element was the existence or absence of a contractual obligation to provide retirees a benefit.
The Appellate Division pointed out that an act of a legislative body will be treated as a contract only when the language and the circumstances manifest a legislative intent to create a private right of a contractual nature.
As an illustration, the Court commented that in Cook v City of Binghamton, 48 NY2d 323, the Court of Appeals said that “certain types of legislative acts, including those fixing salaries and compensation ... are not presumed to create a contract.”
Quoting from the U.S. Supreme Court’s ruling in Dodge v Board of Education, 302 US 74 at page 79, the Court of Appeals said that “the presumption is that such a law is not intended to create a private contractual right or vested right but merely declares a policy to be pursued until the [legislative body] shall ordain otherwise.”
The Appellate Division said that it found nothing in the December 1995 actions by the Board that it “intended to fetter its power in the future” with respect to health insurance. “Rather than evincing an intent to create a private contractual or vested right, the motions are more reasonably read as declarations of [the Board’s] policy.”
Notwithstanding the fact that Handy would have enjoyed health insurance benefits at the expense of the County had the December motions not been repealed, the Appellate Division decided that the Board’s December 1995 actions did not create a contractual property right enforceable against Schoharie County.
As to any claim that the Board’s action gave Handy a vested retirement benefit, in Lippman v Sewanhaka Central High School District, 66 NY2d 313, the Court of Appeals decided that health insurance for retirees is not a retirement benefit protected against being diminished or impaired by the State’s Constitution.
Aug 30, 2010
Demoted whistle blower entitled to reinstatement to the higher-level former position or equivalent and lost salary plus “predetermination interest”
Demoted whistle blower entitled to reinstatement to the higher-level former position or equivalent and lost salary plus “predetermination interest”
Tipaldo v Lynn as Commissioner of the NYC Department of Transportation, 2010 NY Slip Op 06467, decided on August 24, 2010, Appellate Division, First Department
In August 1996, John Tipaldo, a long-time manager with the New York City Department of Transportation (DOT), was promoted to the position of Acting Assistant Commissioner for Planning. Tipaldo was earning an annual salary of $55,000 at the time and was advised that he would be given a $25,000 salary increase if his appointment became permanent.
Less than a year later Tipaldo was demoted from the Acting Assistant Commissioner position. As a result of the demotion, Tipaldo appointment to Assistant Commissioner position did not become permanent and he never received the $25,000 increase in salary.
Tipaldo challenged his demotion citing Civil Service Law §75-b, contending the demotion was in retaliation for his having reported to the Department of Investigation that a superior violated bidding rules (see 48 AD3d 361).*
The instant appeal was from an order following a nonjury trial on the issue of damages following the Appellate Division’s earlier ruling. This appeal challenged Supreme Court's awarding Tipaldo $175,000 in back pay, but without interest and the court’s directive that Tipaldo reinstated to the same, or to an equivalent position to the one that he had held before the retaliatory personnel action that gave rise to his initial lawsuit.
The Appellate Division affirmed the lower court’s ruling with respect to Tipaldo’s reinstatement but said that the award of back salary had to be redetermined because:
1. Tipaldo was entitled to an interest award as provided by Civil Service Law section 75-b; and
2. The record supports Tipaldo's request that he be reinstated "to the same position held before the retaliatory personnel action, or to an equivalent position" as provided by Labor Law §740[5][b]).
The Department, objecting to Tipaldo's reinstatement, argued that he was not entitled to such reinstatement as he had declined promotions 2000, 2001 and 2002. The Appellate Division rejected the Department's theory, commenting that the undisputed testimony of his current supervisor was that at the time of those offers of promotion Tipaldo feared that any promotion would be met with retaliatory action by agency personnel.**
As to the amount of back salary awarded by Supreme Court, the Appellate Division noted that Tipaldo had called an economics expert to establish the amount of back pay to which he was entitled. The expert testified that Tipaldo had lost $388,243 in earnings as a direct result of the retaliatory actions taken by defendants. Tipaldo’s expert also testified that, applying the statutory interest rate of 9% to the lost earnings, Tipaldo was owed a total of $662,721.
In contrast, said the Appellate Division, Supreme Court “without any explanation for how it arrived at the figure, awarded Tipaldo $175,000 in back pay” and denied Tipaldo’s request for pre-determination interest.
Significantly, the Appellate Division noted that the Department “chose not to call their own expert to offer an alternative theory of the earnings which plaintiff would have lost had he not been the victim of retaliation, or to explain why plaintiff's expert's analysis was flawed in any respect.” Thus, said the court, “the only expert opinion before us is [Tipaldo's] and we see no reason to disturb it.”
Further, the Appellate Division held that that predetermination interest is generally available to whistle blowers suing pursuant to Civil Service Law §75-b.
* See Tipaldo v. Lynn, 48 AD3d 361 for the Appellate Division’s ruling in this earlier case.
** The Appellate Division indicated that the fact that Tipaldo declined such promotions did not militate against honoring his request for reinstatement to the higher-level position at this time.
The instant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06467.htm
The earlier decision, 48 AD3d 361, is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_01801.htm
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Tipaldo v Lynn as Commissioner of the NYC Department of Transportation, 2010 NY Slip Op 06467, decided on August 24, 2010, Appellate Division, First Department
In August 1996, John Tipaldo, a long-time manager with the New York City Department of Transportation (DOT), was promoted to the position of Acting Assistant Commissioner for Planning. Tipaldo was earning an annual salary of $55,000 at the time and was advised that he would be given a $25,000 salary increase if his appointment became permanent.
Less than a year later Tipaldo was demoted from the Acting Assistant Commissioner position. As a result of the demotion, Tipaldo appointment to Assistant Commissioner position did not become permanent and he never received the $25,000 increase in salary.
Tipaldo challenged his demotion citing Civil Service Law §75-b, contending the demotion was in retaliation for his having reported to the Department of Investigation that a superior violated bidding rules (see 48 AD3d 361).*
The instant appeal was from an order following a nonjury trial on the issue of damages following the Appellate Division’s earlier ruling. This appeal challenged Supreme Court's awarding Tipaldo $175,000 in back pay, but without interest and the court’s directive that Tipaldo reinstated to the same, or to an equivalent position to the one that he had held before the retaliatory personnel action that gave rise to his initial lawsuit.
The Appellate Division affirmed the lower court’s ruling with respect to Tipaldo’s reinstatement but said that the award of back salary had to be redetermined because:
1. Tipaldo was entitled to an interest award as provided by Civil Service Law section 75-b; and
2. The record supports Tipaldo's request that he be reinstated "to the same position held before the retaliatory personnel action, or to an equivalent position" as provided by Labor Law §740[5][b]).
The Department, objecting to Tipaldo's reinstatement, argued that he was not entitled to such reinstatement as he had declined promotions 2000, 2001 and 2002. The Appellate Division rejected the Department's theory, commenting that the undisputed testimony of his current supervisor was that at the time of those offers of promotion Tipaldo feared that any promotion would be met with retaliatory action by agency personnel.**
As to the amount of back salary awarded by Supreme Court, the Appellate Division noted that Tipaldo had called an economics expert to establish the amount of back pay to which he was entitled. The expert testified that Tipaldo had lost $388,243 in earnings as a direct result of the retaliatory actions taken by defendants. Tipaldo’s expert also testified that, applying the statutory interest rate of 9% to the lost earnings, Tipaldo was owed a total of $662,721.
In contrast, said the Appellate Division, Supreme Court “without any explanation for how it arrived at the figure, awarded Tipaldo $175,000 in back pay” and denied Tipaldo’s request for pre-determination interest.
Significantly, the Appellate Division noted that the Department “chose not to call their own expert to offer an alternative theory of the earnings which plaintiff would have lost had he not been the victim of retaliation, or to explain why plaintiff's expert's analysis was flawed in any respect.” Thus, said the court, “the only expert opinion before us is [Tipaldo's] and we see no reason to disturb it.”
Further, the Appellate Division held that that predetermination interest is generally available to whistle blowers suing pursuant to Civil Service Law §75-b.
* See Tipaldo v. Lynn, 48 AD3d 361 for the Appellate Division’s ruling in this earlier case.
** The Appellate Division indicated that the fact that Tipaldo declined such promotions did not militate against honoring his request for reinstatement to the higher-level position at this time.
The instant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06467.htm
The earlier decision, 48 AD3d 361, is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_01801.htm
.
Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence
Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence
NYC Administration for Children’s Services v S.B., OATH Index #2425/10
The Administration for Children's Services sought to place a child welfare specialist on involuntary leave pursuant to Civil Service Law Section 72 because of alleged mental disability.
Although S.B. had a satisfactory work history with the Administration, OATH Administrative Law Judge Ingrid Addison found that the evidence, including testimony of S.B.'s colleagues that they felt concerned for their safety, examples of bizarre and rambling emails respondent had sent, and the expert reports of two psychiatrists demonstrated that S.B. was mentally unfit for duty.
Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2425.pdf
NYC Administration for Children’s Services v S.B., OATH Index #2425/10
The Administration for Children's Services sought to place a child welfare specialist on involuntary leave pursuant to Civil Service Law Section 72 because of alleged mental disability.
Although S.B. had a satisfactory work history with the Administration, OATH Administrative Law Judge Ingrid Addison found that the evidence, including testimony of S.B.'s colleagues that they felt concerned for their safety, examples of bizarre and rambling emails respondent had sent, and the expert reports of two psychiatrists demonstrated that S.B. was mentally unfit for duty.
Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2425.pdf
Agility tests for firefighters must be validated as job related
Agility tests for firefighters must be validated as job related
Pietras v Farmingdale Fire District, USDC EDNY, 94-CV-0673
U.S. District Court Judge Denis R. Hurley ruled that an agility test for a volunteer firefighter unlawfully discriminated against Victoria Pietras because of her gender.
Pietras, a probationary volunteer firefighter with the Farmingdale Volunteer Fire Department, was required to drag to drag a 280 pound fire hose 150 feet in four minutes. Her best time was four minutes, forty-seven seconds. Rejected for full firefighter status, she sued contending that this portion of the agility test had a disparate impact on women in violation of Title VII of the Civil Rights Act of 1964.
Although Judge Hurley ruled that the Department “established that the contents of the test are job-related” he decided that “the same may not be said of the requirement that it be completed within four minutes.”
How was the four-minute hose drag requirement determined? The Department said that it gave the test to 44 members of the Department, including probationary and junior members. It found that the average time to complete the task was “about three and one half minutes.” It then added an additional half-minute for “leeway,” arriving at the four-minute requirement.
This process, said the Court, was insufficient to establish that “the four-minute time limit is anything other than arbitrary.”
Critical to Judge Hurley’s analysis was his finding that “the purpose of the test was to distinguish competent firefighter candidates from those without the necessary physical abilities to do the job.”
Judge Hurley concluded that to set a standard there had to be some type of job analysis but there was nothing in the record to indicate that such a study had been made, either before administering the test or “after the fact.” This, said the Court, indicated that the standard set by the Department had not been “validated.”
Judge Hurley directed the Department to reinstate Pietras, noting that it could administer another agility test to her as a pre-requisite to her becoming a full member but that any such test had to comply with the relevant federal and state civil rights laws.
.
Pietras v Farmingdale Fire District, USDC EDNY, 94-CV-0673
U.S. District Court Judge Denis R. Hurley ruled that an agility test for a volunteer firefighter unlawfully discriminated against Victoria Pietras because of her gender.
Pietras, a probationary volunteer firefighter with the Farmingdale Volunteer Fire Department, was required to drag to drag a 280 pound fire hose 150 feet in four minutes. Her best time was four minutes, forty-seven seconds. Rejected for full firefighter status, she sued contending that this portion of the agility test had a disparate impact on women in violation of Title VII of the Civil Rights Act of 1964.
Although Judge Hurley ruled that the Department “established that the contents of the test are job-related” he decided that “the same may not be said of the requirement that it be completed within four minutes.”
How was the four-minute hose drag requirement determined? The Department said that it gave the test to 44 members of the Department, including probationary and junior members. It found that the average time to complete the task was “about three and one half minutes.” It then added an additional half-minute for “leeway,” arriving at the four-minute requirement.
This process, said the Court, was insufficient to establish that “the four-minute time limit is anything other than arbitrary.”
Critical to Judge Hurley’s analysis was his finding that “the purpose of the test was to distinguish competent firefighter candidates from those without the necessary physical abilities to do the job.”
Judge Hurley concluded that to set a standard there had to be some type of job analysis but there was nothing in the record to indicate that such a study had been made, either before administering the test or “after the fact.” This, said the Court, indicated that the standard set by the Department had not been “validated.”
Judge Hurley directed the Department to reinstate Pietras, noting that it could administer another agility test to her as a pre-requisite to her becoming a full member but that any such test had to comply with the relevant federal and state civil rights laws.
.
When appealing individual’s employment status all parties that may be affected must be named and served
When appealing individual’s employment status all parties that may be affected must be named and served
Five Residents v Liberty CSD, Decisions of the Commissioner of Education, Decision #13861
If a party wishes to have the Commissioner of Education review an issue, it is critical that all parties who might be affected by the Commissioner’s decision be named in the petition. This point was made clear in an appeal filed by five residents of the Liberty Central School District.
A five-year employment contract between Superintendent and the District was to terminate June 30. Prior to June 30, the parties signed a new contract providing for the Superintendents employment for an additional two years.
The resident-appellants challenged the extension of the contract, claiming it violated the “minimum/maximum” term provisions set out in Section 1711(3) of the Education Law.*
The Commissioner dismissed the petition without considering its merits. He commented that the residents had failed to name a necessary party -- the District’s Board of Education. The Commissioner said that “since the board’s agreement with the superintendent would be adversely affected by a decision in favor of the [residents], the board is a necessary party to this appeal.”**
* Section 1711(3) provides, in pertinent part: “a board of education may enter into a contract with such superintendent for a period of not less than three and not more than five years,”
** In addition, the Commissioner said that he would have had dismiss the appeal event if the board had been named in the petition as the issue had become moot as a result of the Superintendent’s having resigned and thus the contract that the residents sought to have annulled was no longer in effect.
.
Five Residents v Liberty CSD, Decisions of the Commissioner of Education, Decision #13861
If a party wishes to have the Commissioner of Education review an issue, it is critical that all parties who might be affected by the Commissioner’s decision be named in the petition. This point was made clear in an appeal filed by five residents of the Liberty Central School District.
A five-year employment contract between Superintendent and the District was to terminate June 30. Prior to June 30, the parties signed a new contract providing for the Superintendents employment for an additional two years.
The resident-appellants challenged the extension of the contract, claiming it violated the “minimum/maximum” term provisions set out in Section 1711(3) of the Education Law.*
The Commissioner dismissed the petition without considering its merits. He commented that the residents had failed to name a necessary party -- the District’s Board of Education. The Commissioner said that “since the board’s agreement with the superintendent would be adversely affected by a decision in favor of the [residents], the board is a necessary party to this appeal.”**
* Section 1711(3) provides, in pertinent part: “a board of education may enter into a contract with such superintendent for a period of not less than three and not more than five years,”
** In addition, the Commissioner said that he would have had dismiss the appeal event if the board had been named in the petition as the issue had become moot as a result of the Superintendent’s having resigned and thus the contract that the residents sought to have annulled was no longer in effect.
.
Aug 27, 2010
New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine
New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine
NYC Fire Department v Rivera, OATH Index #3416/09
OATH Administrative Law Judge Julio Rodriguez recommended termination of Carlos Rivera, a New York City Fire Department EMT.
Rivera tested positive for cocaine in a random workplace drug test -- registering more than 250 times the official cut-off.
The Department had previously sent him for voluntary rehabilitation three times and afterwards reinstated him to his position.
In his defense Rivera asserted that his drug addiction was a disability requiring accommodation.
ALJ Rodriguez disagreed, finding that Rivera did not establish that he was disabled within the relevant definition of disability set out in the federal Americans with Disabilities Act or the New York State Human Rights Law.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/09_Cases/09-3416.pdf
NYC Fire Department v Rivera, OATH Index #3416/09
OATH Administrative Law Judge Julio Rodriguez recommended termination of Carlos Rivera, a New York City Fire Department EMT.
Rivera tested positive for cocaine in a random workplace drug test -- registering more than 250 times the official cut-off.
The Department had previously sent him for voluntary rehabilitation three times and afterwards reinstated him to his position.
In his defense Rivera asserted that his drug addiction was a disability requiring accommodation.
ALJ Rodriguez disagreed, finding that Rivera did not establish that he was disabled within the relevant definition of disability set out in the federal Americans with Disabilities Act or the New York State Human Rights Law.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/09_Cases/09-3416.pdf
Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System
Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System
Soronen v Comptroller, 244 A.D.2d 842
William Soronen, Jr., was a temporary aide to a New York State Senator during the 1974 and 1975 legislative sessions. He worked on a part-time basis. In July 1975 Soronen accepted a position with a private law firm. In 1978 he was appointed as a confidential law clerk to a State Supreme Court justice and joined the New York State Employees’ Retirement System [ERS].
Soronen subsequently applied for retroactive membership in ERS based on his service with the State legislature in 1974 and 1975 pursuant to Section 803 of the Retirement and Social Security Law.
ERS rejected his application on the grounds that he had a “break in service.” Soronen appealed, contending that he had not reapplied for employment with the State legislature, although his employer would have approved such part-time employment, because he wanted to care for his son. He attributed his three-plus year break in public service to childcare, claiming that Section 803(b)(2) allowed certain breaks in service “attributed to the birth of a child... or care for such child.”
The Appellate Division affirmed ERS’ determination, noting that Soronen’s break in public service was due to the end of the 1975 legislative session and his termination from his temporary employment, not childcare. The Court also commented that Soronen had not demonstrated that “a public employment position was definitely available to him during both the 1976 and 1977 legislative sessions and that he turned [them] down because of child care requirements.”
Soronen v Comptroller, 244 A.D.2d 842
William Soronen, Jr., was a temporary aide to a New York State Senator during the 1974 and 1975 legislative sessions. He worked on a part-time basis. In July 1975 Soronen accepted a position with a private law firm. In 1978 he was appointed as a confidential law clerk to a State Supreme Court justice and joined the New York State Employees’ Retirement System [ERS].
Soronen subsequently applied for retroactive membership in ERS based on his service with the State legislature in 1974 and 1975 pursuant to Section 803 of the Retirement and Social Security Law.
ERS rejected his application on the grounds that he had a “break in service.” Soronen appealed, contending that he had not reapplied for employment with the State legislature, although his employer would have approved such part-time employment, because he wanted to care for his son. He attributed his three-plus year break in public service to childcare, claiming that Section 803(b)(2) allowed certain breaks in service “attributed to the birth of a child... or care for such child.”
The Appellate Division affirmed ERS’ determination, noting that Soronen’s break in public service was due to the end of the 1975 legislative session and his termination from his temporary employment, not childcare. The Court also commented that Soronen had not demonstrated that “a public employment position was definitely available to him during both the 1976 and 1977 legislative sessions and that he turned [them] down because of child care requirements.”
Disciplinary action could affect eligibility for Unemployment Insurance
Disciplinary action could affect eligibility for Unemployment Insurance
Cuevas v Sweeney, 246 A.D.2d 718
Sometimes an employee who has been dismissed from his or her position as a result of disciplinary action will file for unemployment insurance benefits. Typically the Unemployment Insurance Board will hold that the individual is disqualified from receiving such benefits because his or her employment was terminated for misconduct. Can the board rely on the disciplinary determination as the basis for denying the claim? Yes, it may, as the Cuevas decision by the Appellate Division illustrates.
Naptale Cuevas, a Mental Hygiene Therapy Aide employed by a State agency, was found guilty of abusing and threatening his supervisor with physical harm. An arbitrator issued the decision after a disciplinary grievance hearing conducted in accordance with the provisions of a Taylor Law agreement.
The arbitrator ruled that dismissal was appropriate based on Cuevas’ being found guilty of the charges and the fact that Cuevas “previously had carried out a physical assault upon a security guard.” The Court said that the Board properly gave collateral estoppel* effect to the arbitrator’s determination when it ruled that Cuevas had lost his job under disqualifying misconduct.
* The doctrine of collateral estoppel is used in situations where the conclusiveness of a judgment in a prior action involving the same parties is applied in a subsequent action involving a different claim, here a claim for unemployment insurance benefits.
Cuevas v Sweeney, 246 A.D.2d 718
Sometimes an employee who has been dismissed from his or her position as a result of disciplinary action will file for unemployment insurance benefits. Typically the Unemployment Insurance Board will hold that the individual is disqualified from receiving such benefits because his or her employment was terminated for misconduct. Can the board rely on the disciplinary determination as the basis for denying the claim? Yes, it may, as the Cuevas decision by the Appellate Division illustrates.
Naptale Cuevas, a Mental Hygiene Therapy Aide employed by a State agency, was found guilty of abusing and threatening his supervisor with physical harm. An arbitrator issued the decision after a disciplinary grievance hearing conducted in accordance with the provisions of a Taylor Law agreement.
The arbitrator ruled that dismissal was appropriate based on Cuevas’ being found guilty of the charges and the fact that Cuevas “previously had carried out a physical assault upon a security guard.” The Court said that the Board properly gave collateral estoppel* effect to the arbitrator’s determination when it ruled that Cuevas had lost his job under disqualifying misconduct.
* The doctrine of collateral estoppel is used in situations where the conclusiveness of a judgment in a prior action involving the same parties is applied in a subsequent action involving a different claim, here a claim for unemployment insurance benefits.
Aug 26, 2010
Disqualifying an applicant for employment based on psychological evaluations
Disqualifying an applicant for employment based on psychological evaluations
Coffey v Kampe, NYS Supreme Court, [Not selected for publication in the Official Reports]
The Coffey case concerns the disqualification of an individual who wanted to become a police officer because he did not pass the psychological evaluation portion of the Police Officer examination. Section 50 of the Civil Service Law allows a municipal civil service commission to disqualify an applicant if, after passing the required examination, he or she is found not to meet any of the announced requirements.
Coffey took the written test for Nassau County police officer. He scored highly on the written test and was ranked 70th among 70,000 candidates. He also passed a background investigation. But he was disqualified based on the results the third part of Nassau County’s screening process: a three-tiered psychological test battery.
Coffey’s objected, but his appeal was dismissed by the Commission. He sued, contending that his disqualification was arbitrary or capricious. The Commission replied that it had acted in accordance with all relevant rules, policies, and standards, which it had adopted in order to properly administer the provisions of Section 50 of the Civil Service Law.
According to the decision, the Commission found that Coffey failed the psychological screening process because he did not “score within an acceptable range on the objective psychological screening test, and failed in the personal psychological test and interviews.”
The Commission’s psychological screening process had been reviewed and approved by the Appellate Division [Keryc v Nassau County Civil Service Commission, et al, 143 AD2d 669].
New York State Supreme Court Justice O’Connell said, “Courts have also upheld determinations of disqualification, where, as here, the Commissioner of Civil Service found that an applicant was unqualified to serve in a law enforcement position for poor results on standardized Minnesota Multiphasic Personality Inventory (MMPI) exam, among other reasons,” citing the Appellate Division’s decision in Conlon v Commissioner of County of Suffolk, 640 NYS2d 145.
Under the Commission’s rules, the applicant has the burden of establishing his or her qualifications for appointment as a police officer. In dismissing Coffey’s petition, Justice O’Connell said that “where, as here, [the individual] was not actually an employee, but an applicant for appointment, he [or she] must demonstrate that the Commission was arbitrary and capricious, or acted in manner without a rational basis in not making the appointment. The Court ruled that Coffey had not proved this to be the case.
In addition, Justice O’Connell found that Coffey had failed to disclose certain information to the county including five military disciplinary proceedings, two of which resulted in disciplinary actions.
The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/
Coffey v Kampe, NYS Supreme Court, [Not selected for publication in the Official Reports]
The Coffey case concerns the disqualification of an individual who wanted to become a police officer because he did not pass the psychological evaluation portion of the Police Officer examination. Section 50 of the Civil Service Law allows a municipal civil service commission to disqualify an applicant if, after passing the required examination, he or she is found not to meet any of the announced requirements.
Coffey took the written test for Nassau County police officer. He scored highly on the written test and was ranked 70th among 70,000 candidates. He also passed a background investigation. But he was disqualified based on the results the third part of Nassau County’s screening process: a three-tiered psychological test battery.
Coffey’s objected, but his appeal was dismissed by the Commission. He sued, contending that his disqualification was arbitrary or capricious. The Commission replied that it had acted in accordance with all relevant rules, policies, and standards, which it had adopted in order to properly administer the provisions of Section 50 of the Civil Service Law.
According to the decision, the Commission found that Coffey failed the psychological screening process because he did not “score within an acceptable range on the objective psychological screening test, and failed in the personal psychological test and interviews.”
The Commission’s psychological screening process had been reviewed and approved by the Appellate Division [Keryc v Nassau County Civil Service Commission, et al, 143 AD2d 669].
New York State Supreme Court Justice O’Connell said, “Courts have also upheld determinations of disqualification, where, as here, the Commissioner of Civil Service found that an applicant was unqualified to serve in a law enforcement position for poor results on standardized Minnesota Multiphasic Personality Inventory (MMPI) exam, among other reasons,” citing the Appellate Division’s decision in Conlon v Commissioner of County of Suffolk, 640 NYS2d 145.
Under the Commission’s rules, the applicant has the burden of establishing his or her qualifications for appointment as a police officer. In dismissing Coffey’s petition, Justice O’Connell said that “where, as here, [the individual] was not actually an employee, but an applicant for appointment, he [or she] must demonstrate that the Commission was arbitrary and capricious, or acted in manner without a rational basis in not making the appointment. The Court ruled that Coffey had not proved this to be the case.
In addition, Justice O’Connell found that Coffey had failed to disclose certain information to the county including five military disciplinary proceedings, two of which resulted in disciplinary actions.
The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/
Discontinuing certain disability benefits
Discontinuing certain disability benefits
Town of Cortland v PERB, NYS Supreme Court, [Not selected for publications in the Official Reports]
The Town of Cortland unilaterally adopted policies and procedures that terminated certain benefits that were being paid to police officers disabled in the line of duty if they had received such benefits for more than one year. These benefits were not expressly provided for by Section 207-c of the General Municipal Law. In support of its action, the town cited Section 71 of the Civil Service Law [Worker’s Compensation Leave], which authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.
The town also adopted procedures requiring (1) “timely notice” of any job-related injuries, (2) a time limit for appealing proposed light duty assignments and (3) a requirement that police officers claiming Section 207-c benefits charge any lost time to accumulated leave credits pending a determination of their eligibility for such benefits.
A state Supreme Court justice upheld a PERB ruling that the town’s unilateral adoption of such policies and procedures constituted a violation of Section 209-a(1)(d) of the Taylor Law. The court affirmed PERB’s order directing that these policies and procedures be rescinded. If such changes are to be implemented, they must be collectively negotiated.
The court stated that the submission of such policies and procedures to the bargaining process would not have any adverse effect upon Cortland’s ability to exercise any of the rights, which it is accorded under General Municipal Law Section 207-c.
Because the issue was settled under the Taylor Law, the court did not address the town’s innovative argument that Section 71 of the Civil Service Law can serve as statutory authority for discontinuing certain benefits for officers who had been absent because of a work connected injury for one year or longer.
Civil Service Law Section 71 [Workers’ Compensation Leave] applies to employees who have been “separated from service” because of a work-related injury or disease as defined in the Workers’ Compensation Law. If the injury did not “permanently incapacitate” the individual, Section 71 mandates that the public employer give the disabled employee a leave of absence for at least one year. Section 71 also authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.
The key issue here is what legislature meant by the term “separated from service.” While “separated” is not defined in the statute, reading Section 71 in its entirety suggests that it refers to a situation where the individual is physically unable to report to work rather having been “removed” from his or her position.
Application to Sections 207-a and 207-c: An employee who is receiving benefits under GML 207-a or 207-c may be physically unable to report to work. And some individuals who receive benefits under 207-a or 207-c also receive worker’s compensation benefits. Does this mean at least some employees on 207 leaves are “separated from service” within the meaning of Section 71? And do the provisions of Section 71 therefore apply to theses public employees receiving benefits under 207-a or 207-c?
Courts have not yet ruled on whether Section 71 is applicable in Section 207-a or 207-c situations. However, if the issue is litigated in the future, it is quite possible that courts will conclude that Section 71 simply does not apply in Section 207-a and Section 207-c situations.
The reason is that neither Section 207-a nor Section 207-c authorize the separation of an employee injured in the line of duty. Sections 207-a and 207-c appear to view disabled individuals as remaining employees who are subject to recall upon the termination of the disability or, under appropriate circumstances, assigned to perform light duty. In fact, Sections 207-a and 207-c provide for the continuation of compensation until his or her retirement, attaining the mandatory age of retirement or such other time as the individual is no longer qualified for such benefits. Arguably, the event of separation or termination in the sense referred to in Section 71 does not appear to occur in 207-a or 207-c situations.
On the other hand, the courts might well view the provisions of Section 71 to be triggered in a situation in which Section 207-a or Section 207-c salary payments are discontinued by the employer and the individual fails to return to duty, claiming that his or her disability prevents his or her doing so.
Under these facts, the individual, in effect, concedes that his or her absence is due to a workers’ compensation injury He or she has been separated from service -- i.e., cannot report for duty -- and thus the employer can deem that he or she is entitled to Section 71 leave by operation of law. Such a situation is clearly distinguishable from the employee’s status under Section 207-a or Section 207-c where he or she is physically continued on the payroll and thus has not been “separated.”
Another distinguishing element: Section 71 applies only in situations where the individual is determined not to be permanently incapacitated as a result of an occupational injury or disease. In contrast, Section 207-a and 207-c benefits are provided regardless of whether the individual’s work related injury is determined to have resulted in a temporary disability or a permanent incapacity.
Other cases: Other cases dealing with discontinuing certain benefits to individuals being paid pursuant to Section 207-a or Section 207-c include Chalachan v City of Binghamton, 55 NY2d 989, [contractual right to payment for accrued vacation credits while individual was receiving Section 207-a benefits] and PBA, Village of Walden, 30 PERB 3053, [discontinuation of a past practice that provided “contractual benefits” for vacations and other leaves to persons receiving Section 207-c benefits].
In Chalachan the Court of Appeals said that disabled firefighters were entitled to compensation and medical payments as a matter of law but “any additional benefits must be expressly provided for in the agreement....”
In Walden PERB observed that the Taylor Law agreement was silent as to such payments and found that they had been extended to disabled officers “only pursuant to a practice developed over time.” PERB ruled that Walden had not violated Section 209-a.1(d) when it unilaterally discontinuing its past practice.
PERB noted the PBA’s complaint was a “noncontract grievance,” and under the terms of the contract the “final disposition of past practice grievances” was left to the Village Manager. Accordingly, PERB concluded, “... the language in the ... [negotiated] grievance procedure vests the village with the right to continue or discontinue past practices in its discretion.”
Town of Cortland v PERB, NYS Supreme Court, [Not selected for publications in the Official Reports]
The Town of Cortland unilaterally adopted policies and procedures that terminated certain benefits that were being paid to police officers disabled in the line of duty if they had received such benefits for more than one year. These benefits were not expressly provided for by Section 207-c of the General Municipal Law. In support of its action, the town cited Section 71 of the Civil Service Law [Worker’s Compensation Leave], which authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.
The town also adopted procedures requiring (1) “timely notice” of any job-related injuries, (2) a time limit for appealing proposed light duty assignments and (3) a requirement that police officers claiming Section 207-c benefits charge any lost time to accumulated leave credits pending a determination of their eligibility for such benefits.
A state Supreme Court justice upheld a PERB ruling that the town’s unilateral adoption of such policies and procedures constituted a violation of Section 209-a(1)(d) of the Taylor Law. The court affirmed PERB’s order directing that these policies and procedures be rescinded. If such changes are to be implemented, they must be collectively negotiated.
The court stated that the submission of such policies and procedures to the bargaining process would not have any adverse effect upon Cortland’s ability to exercise any of the rights, which it is accorded under General Municipal Law Section 207-c.
Because the issue was settled under the Taylor Law, the court did not address the town’s innovative argument that Section 71 of the Civil Service Law can serve as statutory authority for discontinuing certain benefits for officers who had been absent because of a work connected injury for one year or longer.
Civil Service Law Section 71 [Workers’ Compensation Leave] applies to employees who have been “separated from service” because of a work-related injury or disease as defined in the Workers’ Compensation Law. If the injury did not “permanently incapacitate” the individual, Section 71 mandates that the public employer give the disabled employee a leave of absence for at least one year. Section 71 also authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.
The key issue here is what legislature meant by the term “separated from service.” While “separated” is not defined in the statute, reading Section 71 in its entirety suggests that it refers to a situation where the individual is physically unable to report to work rather having been “removed” from his or her position.
Application to Sections 207-a and 207-c: An employee who is receiving benefits under GML 207-a or 207-c may be physically unable to report to work. And some individuals who receive benefits under 207-a or 207-c also receive worker’s compensation benefits. Does this mean at least some employees on 207 leaves are “separated from service” within the meaning of Section 71? And do the provisions of Section 71 therefore apply to theses public employees receiving benefits under 207-a or 207-c?
Courts have not yet ruled on whether Section 71 is applicable in Section 207-a or 207-c situations. However, if the issue is litigated in the future, it is quite possible that courts will conclude that Section 71 simply does not apply in Section 207-a and Section 207-c situations.
The reason is that neither Section 207-a nor Section 207-c authorize the separation of an employee injured in the line of duty. Sections 207-a and 207-c appear to view disabled individuals as remaining employees who are subject to recall upon the termination of the disability or, under appropriate circumstances, assigned to perform light duty. In fact, Sections 207-a and 207-c provide for the continuation of compensation until his or her retirement, attaining the mandatory age of retirement or such other time as the individual is no longer qualified for such benefits. Arguably, the event of separation or termination in the sense referred to in Section 71 does not appear to occur in 207-a or 207-c situations.
On the other hand, the courts might well view the provisions of Section 71 to be triggered in a situation in which Section 207-a or Section 207-c salary payments are discontinued by the employer and the individual fails to return to duty, claiming that his or her disability prevents his or her doing so.
Under these facts, the individual, in effect, concedes that his or her absence is due to a workers’ compensation injury He or she has been separated from service -- i.e., cannot report for duty -- and thus the employer can deem that he or she is entitled to Section 71 leave by operation of law. Such a situation is clearly distinguishable from the employee’s status under Section 207-a or Section 207-c where he or she is physically continued on the payroll and thus has not been “separated.”
Another distinguishing element: Section 71 applies only in situations where the individual is determined not to be permanently incapacitated as a result of an occupational injury or disease. In contrast, Section 207-a and 207-c benefits are provided regardless of whether the individual’s work related injury is determined to have resulted in a temporary disability or a permanent incapacity.
Other cases: Other cases dealing with discontinuing certain benefits to individuals being paid pursuant to Section 207-a or Section 207-c include Chalachan v City of Binghamton, 55 NY2d 989, [contractual right to payment for accrued vacation credits while individual was receiving Section 207-a benefits] and PBA, Village of Walden, 30 PERB 3053, [discontinuation of a past practice that provided “contractual benefits” for vacations and other leaves to persons receiving Section 207-c benefits].
In Chalachan the Court of Appeals said that disabled firefighters were entitled to compensation and medical payments as a matter of law but “any additional benefits must be expressly provided for in the agreement....”
In Walden PERB observed that the Taylor Law agreement was silent as to such payments and found that they had been extended to disabled officers “only pursuant to a practice developed over time.” PERB ruled that Walden had not violated Section 209-a.1(d) when it unilaterally discontinuing its past practice.
PERB noted the PBA’s complaint was a “noncontract grievance,” and under the terms of the contract the “final disposition of past practice grievances” was left to the Village Manager. Accordingly, PERB concluded, “... the language in the ... [negotiated] grievance procedure vests the village with the right to continue or discontinue past practices in its discretion.”
Aug 25, 2010
ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record
ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record
NYC Fire Department v Gill, OATH Index #1871/10
Although the New York City Fire Department sought the termination of Harold Gill’s employment as a firefighter after he tested positive for cocaine in a random drug test, OATH Administrative Law Judge Faye Lewis recommended that the termination be stayed to permit Gill to retire in light of his unblemished 29-year record of service with the Department.
ALJ Fay also recommended that the Gill pay a substantial fine.
The text of the decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1871.pdf
NYC Fire Department v Gill, OATH Index #1871/10
Although the New York City Fire Department sought the termination of Harold Gill’s employment as a firefighter after he tested positive for cocaine in a random drug test, OATH Administrative Law Judge Faye Lewis recommended that the termination be stayed to permit Gill to retire in light of his unblemished 29-year record of service with the Department.
ALJ Fay also recommended that the Gill pay a substantial fine.
The text of the decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1871.pdf
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law.
Email: publications@nycap.rr.com