New York State Comptroller alleges retired police officer involved in a "pension padding scheme"
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli announced in a press release issued on September 17, 2010 that his Department's investigators found that a retired City of Rome Police Officer, Thomas C. Hubal, was involved in a “pension padding scheme."
The Comptroller said that Hubal was indicted “for illegally collecting more than $88,000 from the New York State and Local Retirement System over a nine-year period.” According to a report* published in September 2010 by the Comptroller's Investigations Unit, investigators from the Investigations Unit and Oneida County District Attorney Scott McNamara’s office found that Hubal was working for the Rome City School District without having obtained a waiver from the State Civil Service Commission, as required by State Law,** and without notifying the Comptroller’s Office that he would be returning to public employment.
In general, §150 of the New York State Civil Service Law prohibits a retired member of a public retirement system of this state*** collecting a retirement allowance from a New York public pension system from being employed by New York State or a political subdivision of New York State and simultaneously collecting a salary in excess of statutory salary limits imposed for such retirees returning to public service by law.
There are, however, certain exceptions to this general prohibition whereby:
1. A retiree who is age 65 or more may return to public sector employment without a reduction or suspension of his or her pension regardless of the amount of his or her public sector compensation;
2. The retiree may suspend his or her retirement allowance and rejoin the Retirement System;
3. The retiree, regardless of age, may be reemployed by the State or a political subdivision of the State without any reduction or suspension of his or her pension if he or she does not earn a salary in excess of the earnings limits set out in the RSSL.
4. A retiree "may be able to temporarily (and for a finite period of time)" earn a public sector salary in excess of the limits imposed by the RSSL if the retiree and the retiree’s prosective appointing appointing authority (on his or her behalf) apply for and are granted a waiver under very specific circumstances" prescribed in §211.
Although the New York State Retirement and Social Security Law permits a retiree receiving a retirement allowance from a public retirement system of New York State to temporarily return to work for a public entity without a reduction in his or her existing retirement benefits, provided the retiree satisfies specific legal requirements to do so, Hubal, said the Commissioner, "circumvented those legal requirements."
The Comptroller said that Hubal was arraigned in Oneida County Court on Friday, September 17, 2010 and charged with second-degree grand larceny and defrauding the government, both felonies.
The Comptroller also said Department investigators found evidence suggesting that others in the school district attempted to help Hubal illegally “double-dip,” commencing with Hubal’s hiring by school district officials in 1995 and their disregarding the requirements set out in New York State's laws concerning the reemployment of individuals receiving a retirement allowance from a public retirement system of this State.
In addition, DiNapoli said that the investigators found evidence suggesting that school district officials allowed Hubal to collect funds for travel and other expenses without the required documentation to support such expenses in excess of $20,000.
A retiree's failure to obtain the required §211 waiver in a timely fashion could result in civil financial liability as well. For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had be paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.
However, there are no limitiations with respect to the reemployment of a retiree of a New York public retirement system by an employer in the private section, by the federal government or by another state or a political subdivision of another state.
* The full text of the Comptroller’s report is posted on the Internet at http://www.osc.state.ny.us/reports/investigations/Rome_Report.pdf
** See §150 of the Civil Service Law and §211 of the Retirement and Social Security Law.
*** The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
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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
Sep 20, 2010
Incompetence and misconduct in the context of a disciplinary action
Incompetence and misconduct in the context of a disciplinary action
Brey v Jefferson-Youngsville CSD, App. Div., 245 AD2d 613
Incompetence and misconduct have different meanings in disciplinary actions.
Incompetence basically refers to a lack of the ability to do the work properly; misconduct frequently involves the employee's failure to comply with instructions or ignoring appropriate procedures.
Elvira Brey, business manager for the Jefferson-Youngsville school district in Sullivan County, was charged with incompetence because she failed meet deadlines for filing various forms and applications with the State Department of Education and neglected to make timely interest payments on a series of the School District's bonds.
The charges involving misconduct arose for her alleged "failure to comply with [the Superintendent's] repeated written directives' to complete the forms required to be filed with the Education Department. The disciplinary action was brought pursuant to Section 75 of the Civil Service Law.
Found guilty of all charges and specifications, Brey was terminated from her position. She challenged the Board's action, contending that:
(1) the findings of the hearing officer were not supported by substantial evidence and
(2) the penalty imposed was "grossly disproportionate ... because she had not intentionally failed to timely file the reports and make the interest payments."
The Appellate Division was not impressed by these representations. It concluded that the Board's determination was based on the testimony of School District witnesses, Brey's admissions, and documentary evidence "amply supported by proof in the record,” which satisfied the substantial evidence test.
The Court dismissed Brey's appeal, indicating that the penalty imposed met the Pell test in that it is "not so disproportionate to the offenses as to be shocking to one's sense of fairness."
Another factor in this case was Brey's claim that she was the victim of retaliation within the meaning of Section 75-b of the Civil Service Law, the so-called "Whistle Blower" statute. After commenting that Brey "did not sufficiently establish her defense of retaliatory discharge," the Court said that "a defense under Section 75-b cannot be sustained when a public employer has a separate and independent basis for the action taken" against the individual.
The lesson here is that even in cases where the individual is able to demonstrate he or she has suffered retaliation in violation of Section 75-b, such a defense will not be sufficient to prevent an employer from disciplining an employee merely because the employee's actions are protected by Section 75-b if the employer has a separate and different basis for the disciplinary action.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Brey v Jefferson-Youngsville CSD, App. Div., 245 AD2d 613
Incompetence and misconduct have different meanings in disciplinary actions.
Incompetence basically refers to a lack of the ability to do the work properly; misconduct frequently involves the employee's failure to comply with instructions or ignoring appropriate procedures.
Elvira Brey, business manager for the Jefferson-Youngsville school district in Sullivan County, was charged with incompetence because she failed meet deadlines for filing various forms and applications with the State Department of Education and neglected to make timely interest payments on a series of the School District's bonds.
The charges involving misconduct arose for her alleged "failure to comply with [the Superintendent's] repeated written directives' to complete the forms required to be filed with the Education Department. The disciplinary action was brought pursuant to Section 75 of the Civil Service Law.
Found guilty of all charges and specifications, Brey was terminated from her position. She challenged the Board's action, contending that:
(1) the findings of the hearing officer were not supported by substantial evidence and
(2) the penalty imposed was "grossly disproportionate ... because she had not intentionally failed to timely file the reports and make the interest payments."
The Appellate Division was not impressed by these representations. It concluded that the Board's determination was based on the testimony of School District witnesses, Brey's admissions, and documentary evidence "amply supported by proof in the record,” which satisfied the substantial evidence test.
The Court dismissed Brey's appeal, indicating that the penalty imposed met the Pell test in that it is "not so disproportionate to the offenses as to be shocking to one's sense of fairness."
Another factor in this case was Brey's claim that she was the victim of retaliation within the meaning of Section 75-b of the Civil Service Law, the so-called "Whistle Blower" statute. After commenting that Brey "did not sufficiently establish her defense of retaliatory discharge," the Court said that "a defense under Section 75-b cannot be sustained when a public employer has a separate and independent basis for the action taken" against the individual.
The lesson here is that even in cases where the individual is able to demonstrate he or she has suffered retaliation in violation of Section 75-b, such a defense will not be sufficient to prevent an employer from disciplining an employee merely because the employee's actions are protected by Section 75-b if the employer has a separate and different basis for the disciplinary action.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Terminations based on political affiliation
Terminations based on political affiliation
Bavaro v Pataki, CA2, 130 F.3d 46 9181
In this case there was no question that Ralph Bavaro and Elizabeth Hogan were fired from their respective jobs as Associate and Assistant Counsels to "make room" for two political appointees. They sued, seeking damages and injunctive relief pursuant to 42 USC. 1983.
Were the attorneys subject to dismissal on the basis of their political affiliation or were they protected against such political patronage dismissals under the First Amendment to the United States Constitution? The U.S. Circuit Court of Appeals upheld a federal district court ruling that the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.
According to the decision, in 1976 the Supreme Court first held that patronage dismissals may infringe upon government employees' First Amendment rights to political belief and association, citing Elrod v. Burns, 427 U.S. 347. However, Elrod also holds that "[l]imiting patronage dismissals to policymaking positions is sufficient to achieve a governmental end."
In Branti v. Finkel, 445 U.S. 507, a 1980 decision, a majority of the U.S. Supreme Court reaffirmed its view that patronage dismissals may contravene the First Amendment but said incumbents would not be protected against patronage dismissals where the hiring authority able to demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
The Circuit Court explained that a rational connection exists between political affiliation and performance of the inherent duties of a position, when the employee:
(1) is exempt from civil service protection;
(2) has some technical competence or expertise;
(3) controls others; and
(4) is empowered to act and speak on behalf of a policymaker, especially an elected official.
The Circuit Court decided that under the circumstances, the politically motivated termination of Bavaro and Hogan did not violate their First Amendment rights.
It ruled that the positions held by Bavaro and Hogan were not protected against patronage dismissal because the four elements listed by the 2nd Circuit were satisfied.
Suppose the individual does not actually perform the duties that are actually set out in the official job description for the position. The Circuit Court said that in analyzing whether a government employee is protected under this standard, the "inherent duties of the position, not the actual duties performed by the employee in a particular case" control.
The full text of the opinion is on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/terminations-based-on-political.html
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Bavaro v Pataki, CA2, 130 F.3d 46 9181
In this case there was no question that Ralph Bavaro and Elizabeth Hogan were fired from their respective jobs as Associate and Assistant Counsels to "make room" for two political appointees. They sued, seeking damages and injunctive relief pursuant to 42 USC. 1983.
Were the attorneys subject to dismissal on the basis of their political affiliation or were they protected against such political patronage dismissals under the First Amendment to the United States Constitution? The U.S. Circuit Court of Appeals upheld a federal district court ruling that the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.
According to the decision, in 1976 the Supreme Court first held that patronage dismissals may infringe upon government employees' First Amendment rights to political belief and association, citing Elrod v. Burns, 427 U.S. 347. However, Elrod also holds that "[l]imiting patronage dismissals to policymaking positions is sufficient to achieve a governmental end."
In Branti v. Finkel, 445 U.S. 507, a 1980 decision, a majority of the U.S. Supreme Court reaffirmed its view that patronage dismissals may contravene the First Amendment but said incumbents would not be protected against patronage dismissals where the hiring authority able to demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
The Circuit Court explained that a rational connection exists between political affiliation and performance of the inherent duties of a position, when the employee:
(1) is exempt from civil service protection;
(2) has some technical competence or expertise;
(3) controls others; and
(4) is empowered to act and speak on behalf of a policymaker, especially an elected official.
The Circuit Court decided that under the circumstances, the politically motivated termination of Bavaro and Hogan did not violate their First Amendment rights.
It ruled that the positions held by Bavaro and Hogan were not protected against patronage dismissal because the four elements listed by the 2nd Circuit were satisfied.
Suppose the individual does not actually perform the duties that are actually set out in the official job description for the position. The Circuit Court said that in analyzing whether a government employee is protected under this standard, the "inherent duties of the position, not the actual duties performed by the employee in a particular case" control.
The full text of the opinion is on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/terminations-based-on-political.html
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Reasonable accommodation of employee's disability may not always trumpet collective bargaining seniority agreement
Reasonable accommodation of employee's disability may not always trumpet collective bargaining seniority agreement
Kralik v Durbin, CA3, 130 F.3d 76
The Third Circuit U.S. Court of Appeals in Philadelphia has decided that an accommodation of a disabled individual under the Americans with Disabilities Act [ADA] does not take precedence over the terms of a collective bargaining agreement.
The case focused on a conflict between employee seniority rights under a collective bargaining agreement and an employee's right to a reasonable accommodation under ADA that would adversely impact the seniority rights of other workers.
Karen Kralik, a highway toll collector, contended that she could not work "forced overtime" because her back condition prevented her from sitting for more than eight continuous hours. When her employer refused to exempt her from forced overtime, she contended that its action constituted a violation of the ADA. Kralik alleged that the reason her employer had refused to provide her with the accommodation was that it would require another employee with more seniority to work overtime and thereby infringe on the rights of these employees under the collective bargaining agreement then in place.
The U.S. Circuit Court of Appeals rejected Kralik's argument. It commented that there was a well-established precedent in place when Congress passed ADA -- reasonable accommodation under the federal Rehabilitation Act "had never been held to require trumping the seniority rights of other employees."
Why did the Court conclude that the accommodation requested by Kralik -- no forced overtime -- was not a “reasonable accommodation" under the circumstances? The Court said "even minor infringements on other employees' seniority rights impose unreasonable burdens on employers who, by reason of these infringements, must face the consequences of violating the collective bargaining agreement."
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Kralik v Durbin, CA3, 130 F.3d 76
The Third Circuit U.S. Court of Appeals in Philadelphia has decided that an accommodation of a disabled individual under the Americans with Disabilities Act [ADA] does not take precedence over the terms of a collective bargaining agreement.
The case focused on a conflict between employee seniority rights under a collective bargaining agreement and an employee's right to a reasonable accommodation under ADA that would adversely impact the seniority rights of other workers.
Karen Kralik, a highway toll collector, contended that she could not work "forced overtime" because her back condition prevented her from sitting for more than eight continuous hours. When her employer refused to exempt her from forced overtime, she contended that its action constituted a violation of the ADA. Kralik alleged that the reason her employer had refused to provide her with the accommodation was that it would require another employee with more seniority to work overtime and thereby infringe on the rights of these employees under the collective bargaining agreement then in place.
The U.S. Circuit Court of Appeals rejected Kralik's argument. It commented that there was a well-established precedent in place when Congress passed ADA -- reasonable accommodation under the federal Rehabilitation Act "had never been held to require trumping the seniority rights of other employees."
Why did the Court conclude that the accommodation requested by Kralik -- no forced overtime -- was not a “reasonable accommodation" under the circumstances? The Court said "even minor infringements on other employees' seniority rights impose unreasonable burdens on employers who, by reason of these infringements, must face the consequences of violating the collective bargaining agreement."
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Retirees are not employees within the meaning of the Taylor Law
Retirees are not employees within the meaning of the Taylor Law
New Action and United Federation of Teachers, 30 PERB 3048
New Action, a retiree group, asked the United Federation of Teachers [UFT] for a list of the names and addresses of its retired members. When UFT refused, New Action complained to PERB, contending UFT violated Section 209-a.2(a) of the Taylor Law. Section 209-a.2(a) prohibits an employee organization from interfering with the rights given public employees under the Act.
PERB affirmed the Director of Public Employment Practices and Representation's dismissal of New Action's claims. It agreed with the Director that UFT was permitted to refuse to provide New Action with the names of its retired members because:
1. New Action was not an employee organization within the meaning of the Taylor Law;
2. New Action's demand was not related to the terms and conditions of employment; and
3. The information sought by New Action concerned matters internal to UFT.
While PERB noted that an employee organization has a "general duty" to provide information to the employees it represents concerning their terms and conditions of employment when asked, retirees are not public employees, have no terms and conditions of employment and are not in the UFT bargaining unit.
PERB also rejected New Action's theory that it was entitled to the names and address of UFT retirees because UFT supposedly "allows retirees to vote on ratification of collective bargaining agreements and in elections for union officers." Even if true, PERB ruled, this would not matter as such participation concerns internal union affairs falling outside the scope of the Taylor Law.
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New Action and United Federation of Teachers, 30 PERB 3048
New Action, a retiree group, asked the United Federation of Teachers [UFT] for a list of the names and addresses of its retired members. When UFT refused, New Action complained to PERB, contending UFT violated Section 209-a.2(a) of the Taylor Law. Section 209-a.2(a) prohibits an employee organization from interfering with the rights given public employees under the Act.
PERB affirmed the Director of Public Employment Practices and Representation's dismissal of New Action's claims. It agreed with the Director that UFT was permitted to refuse to provide New Action with the names of its retired members because:
1. New Action was not an employee organization within the meaning of the Taylor Law;
2. New Action's demand was not related to the terms and conditions of employment; and
3. The information sought by New Action concerned matters internal to UFT.
While PERB noted that an employee organization has a "general duty" to provide information to the employees it represents concerning their terms and conditions of employment when asked, retirees are not public employees, have no terms and conditions of employment and are not in the UFT bargaining unit.
PERB also rejected New Action's theory that it was entitled to the names and address of UFT retirees because UFT supposedly "allows retirees to vote on ratification of collective bargaining agreements and in elections for union officers." Even if true, PERB ruled, this would not matter as such participation concerns internal union affairs falling outside the scope of the Taylor Law.
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Ignoring directives given by superiors
Ignoring directives given by superiors
Lowery v Office of Court Admin., App. Div., 244 AD2d 192
Patricia Lowery, an employee of the Office of Court Administration, was alleged to have "disregarded express directives" given to her by her supervisor.
Found guilty, Lowery was terminated from her position.
Was termination an excessive penalty to impose on Lowery for being insubordinate? The Appellate Division did not think it was and affirmed the decision of the Chief Administrative Judge to dismiss Lowery.
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Lowery v Office of Court Admin., App. Div., 244 AD2d 192
Patricia Lowery, an employee of the Office of Court Administration, was alleged to have "disregarded express directives" given to her by her supervisor.
Found guilty, Lowery was terminated from her position.
Was termination an excessive penalty to impose on Lowery for being insubordinate? The Appellate Division did not think it was and affirmed the decision of the Chief Administrative Judge to dismiss Lowery.
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Evaluating applications for disability retirement
Evaluating applications for disability retirement
Vasquez v Board of Trustees NYCFD, NYS Supreme Court [Not selected for publication in the Official Reports]
Furch v Bucci, Appellate Division, 245 AD2d 749, Motion to appeal dismissed as not a final order, 91 NY2d 953
The rejection of an application for accidental disability retirement typically hinge on the resolution of two important questions: (1) Did the individual suffer a line-of-duty injury? and, if so, (2) did the injury result in a permanent disability? The Vasquez and Furch consider the elements involved in making such determinations.
The Vasquez Case:
Vasquez, a New York City firefighter, claimed that he had sustained line-of-duty injuries including the rupture of his right Achilles tendon in 1983, a meniscus injury to his left knee in 1988, partial rupture of his left Achilles tendon in 1991, and a herniated disc in the cervical spine in 1993. The Fire Department filed an application for disability retirement on behalf of Vasquez on December 19, 1994 and on February 20, 1996 and on August 26, 1996, Vasquez filed his own applications for accident disability retirement. On September 10, 1996, the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund [Trustees] decided to retire petitioner on ordinary disability retirement, not accidental disability retirement.
According to the ruling, the 1-B Medical Board concluded that the Achilles injuries and the lumbar degeneration were non-disabling; the herniated disc in the cervical spine was non-duty related; and the knee problem was not permanently disabling.
Vasquez sued, seeking a judgment annulling the Trustees' decisions. He argued there was no credible or substantive dispute as to his condition among the medical experts. The Trustees, on the other hand, argued that Vasquez failed to meet his burden of proof that his line-of-duty accidents caused his disability. Significantly, the Trustees contended that Vasquez had filed untimely line-of-duty injury reports concerning the events underlying his claims, "although over the years he had filed many."
Two fellow firefighters provided affidavits supporting Vasquez’s account of the events at issue. But the Trustees urged that the Court not give much weight to the fact that because the statements were dated more than a year and a half after the incident Vasquez claimed caused his disability.
Finally, the Trustees contended that the fact that Vasquez never returned to full duty "is not sufficient to overcome the copious medical evidence on the record."
Although the Medical Board's determination as to whether an applicant is disabled is binding upon the Trustees, the Court said that the issue of whether the disability is service-related is solely for the Board of Trustees to decide, citing Canfora v. Board of Trustees, 60 NY2d 347, 351. Commenting that there was an "exhaustive review of the objective and subjective evidence" by the 1-B Medical Board, the Court concluded that the record supported the Trustees' determination.
New York State Supreme Court Justice Belen noted the Trustee's vote was 6-6. Justice Belen commented that "if the Trustees' decision is based on a tie vote, the court cannot disturb an administrative determination unless it can find causation as a matter of law (City of New York v Schoeck, 294 NY 559, 570)." To prevail, Vasquez had to show that "the circumstances admit but one inference," i.e., that his line-of-duty injuries were the proximate cause of his disability. As he did not meet this test, "nor has he proved that they exacerbated a latent condition," the Court sustained the Trustees' determination and dismissed Vasquez's petition.
The Furch Case:
City of Binghamton firefighter James L. Furch applied for General Municipal Law Section 207-a benefits, claiming that he suffered from arteriosclerosis brought on by job-related factors. He claimed these job-related factors ultimately resulted in a heart attack while he was raising a flag while on duty at a fire station.
The hearing officer appointed by the City, Director of Personnel and Safety David W. Watkins, ruled that Furch's "myocardial infarction and underlying arteriosclerosis were not caused by the performance of his duties as a firefighter" and his application for Section 207-a benefits was rejected by the City.
Among the points made by the Appellate Division in the appeal that followed was the following:
The fact that a Workers' Compensation Law Judge ruled that Furch's myocardial infarction was causally related to his employment, the binding effect of the decision rendered in the workers' compensation proceeding did not preclude [Binghamton] from denying [Furch's] application for benefits pursuant to General Municipal Law Section 207-a.
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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Vasquez v Board of Trustees NYCFD, NYS Supreme Court [Not selected for publication in the Official Reports]
Furch v Bucci, Appellate Division, 245 AD2d 749, Motion to appeal dismissed as not a final order, 91 NY2d 953
The rejection of an application for accidental disability retirement typically hinge on the resolution of two important questions: (1) Did the individual suffer a line-of-duty injury? and, if so, (2) did the injury result in a permanent disability? The Vasquez and Furch consider the elements involved in making such determinations.
The Vasquez Case:
Vasquez, a New York City firefighter, claimed that he had sustained line-of-duty injuries including the rupture of his right Achilles tendon in 1983, a meniscus injury to his left knee in 1988, partial rupture of his left Achilles tendon in 1991, and a herniated disc in the cervical spine in 1993. The Fire Department filed an application for disability retirement on behalf of Vasquez on December 19, 1994 and on February 20, 1996 and on August 26, 1996, Vasquez filed his own applications for accident disability retirement. On September 10, 1996, the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund [Trustees] decided to retire petitioner on ordinary disability retirement, not accidental disability retirement.
According to the ruling, the 1-B Medical Board concluded that the Achilles injuries and the lumbar degeneration were non-disabling; the herniated disc in the cervical spine was non-duty related; and the knee problem was not permanently disabling.
Vasquez sued, seeking a judgment annulling the Trustees' decisions. He argued there was no credible or substantive dispute as to his condition among the medical experts. The Trustees, on the other hand, argued that Vasquez failed to meet his burden of proof that his line-of-duty accidents caused his disability. Significantly, the Trustees contended that Vasquez had filed untimely line-of-duty injury reports concerning the events underlying his claims, "although over the years he had filed many."
Two fellow firefighters provided affidavits supporting Vasquez’s account of the events at issue. But the Trustees urged that the Court not give much weight to the fact that because the statements were dated more than a year and a half after the incident Vasquez claimed caused his disability.
Finally, the Trustees contended that the fact that Vasquez never returned to full duty "is not sufficient to overcome the copious medical evidence on the record."
Although the Medical Board's determination as to whether an applicant is disabled is binding upon the Trustees, the Court said that the issue of whether the disability is service-related is solely for the Board of Trustees to decide, citing Canfora v. Board of Trustees, 60 NY2d 347, 351. Commenting that there was an "exhaustive review of the objective and subjective evidence" by the 1-B Medical Board, the Court concluded that the record supported the Trustees' determination.
New York State Supreme Court Justice Belen noted the Trustee's vote was 6-6. Justice Belen commented that "if the Trustees' decision is based on a tie vote, the court cannot disturb an administrative determination unless it can find causation as a matter of law (City of New York v Schoeck, 294 NY 559, 570)." To prevail, Vasquez had to show that "the circumstances admit but one inference," i.e., that his line-of-duty injuries were the proximate cause of his disability. As he did not meet this test, "nor has he proved that they exacerbated a latent condition," the Court sustained the Trustees' determination and dismissed Vasquez's petition.
The Furch Case:
City of Binghamton firefighter James L. Furch applied for General Municipal Law Section 207-a benefits, claiming that he suffered from arteriosclerosis brought on by job-related factors. He claimed these job-related factors ultimately resulted in a heart attack while he was raising a flag while on duty at a fire station.
The hearing officer appointed by the City, Director of Personnel and Safety David W. Watkins, ruled that Furch's "myocardial infarction and underlying arteriosclerosis were not caused by the performance of his duties as a firefighter" and his application for Section 207-a benefits was rejected by the City.
Among the points made by the Appellate Division in the appeal that followed was the following:
The fact that a Workers' Compensation Law Judge ruled that Furch's myocardial infarction was causally related to his employment, the binding effect of the decision rendered in the workers' compensation proceeding did not preclude [Binghamton] from denying [Furch's] application for benefits pursuant to General Municipal Law Section 207-a.
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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Sep 17, 2010
Retirement benefits and divorce
Retirement benefits and divorce
Massaro v Massaro, NYS Supreme Court, [Not selected for publication in the Official Reports, see 2002 WL 243385]
In Massaro v Massaro, New York State Supreme Court Justice Blydenburgh answered an important question concerning the rights of a divorced spouse to benefits from a public retirement system such as the New York State Employees' Retirement System [ERS]. The question:
Should the final pension amount to be divided between divorced spouses include benefits due an employee at the time of his or her retirement that can be attributed to promotions received by the employee after the commencement of an action for divorce?
Both parties agreed that the divorced wife "is entitled to one half that pension that was earned as martial property." When the divorce action was commenced, the husband was a sergeant with the Suffolk County Police Department and a member of the Police and Firefighters Retirement System [PFRS].
Although there was no question that "an increase in the final pension amounts due solely to length of years in service, is marital property" and his former wife was entitled to share in that increase, Massaro argued that any increase because of promotions which came after the commencement of the divorce action are similar to a change of job, and no increase in his pension due to his increased salary because of promotions should be considered marital property. Massaro's theory was that "any promotion ... beyond Sergeant, coming not only after the commencement of this action, but subsequent to the divorce itself, could not be attributed to any action of [his former spouse] and for which she did not reasonably have any expectation."
His former wife, on the other hand, contended that she was entitled to her percentage of the retirement allowance actually paid to her former spouse, regardless of the reasons why his pension may have been increased.
According to Justice Blydenburgh, Massaro's promotion resulted from tests taken or lists established after the commencement of the divorce proceedings. Justice Blydenburgh reasoned that since neither party had any expectation of future pension increases due to promotions, any promotion earned by Massaro after the commencement of the divorce would have resulted from his actions alone.
Accordingly, the Court ruled that Massaro's former spouse was not entitled to share in any increase to his pension at the time of his retirement resulting from increases as a result of any post divorce promotions. What should she receive? The amount she would have been entitled to receive had Massaro not been promoted and retired from service as a Sergeant.
In dollars and cents, this means that Massaro's former spouse will be only entitled to that portion of Massaro's retirement allowance based on his "final average salary" as a Sergeant, but calculated using his total period of PFRS member service.
Massaro's portion of his retirement allowance, on the other hand, will be determined on the basis of his post-promotion "final average salary," which, presumably, would be higher than his "Sergeant final average salary," and his total member service credit in the system.
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Massaro v Massaro, NYS Supreme Court, [Not selected for publication in the Official Reports, see 2002 WL 243385]
In Massaro v Massaro, New York State Supreme Court Justice Blydenburgh answered an important question concerning the rights of a divorced spouse to benefits from a public retirement system such as the New York State Employees' Retirement System [ERS]. The question:
Should the final pension amount to be divided between divorced spouses include benefits due an employee at the time of his or her retirement that can be attributed to promotions received by the employee after the commencement of an action for divorce?
Both parties agreed that the divorced wife "is entitled to one half that pension that was earned as martial property." When the divorce action was commenced, the husband was a sergeant with the Suffolk County Police Department and a member of the Police and Firefighters Retirement System [PFRS].
Although there was no question that "an increase in the final pension amounts due solely to length of years in service, is marital property" and his former wife was entitled to share in that increase, Massaro argued that any increase because of promotions which came after the commencement of the divorce action are similar to a change of job, and no increase in his pension due to his increased salary because of promotions should be considered marital property. Massaro's theory was that "any promotion ... beyond Sergeant, coming not only after the commencement of this action, but subsequent to the divorce itself, could not be attributed to any action of [his former spouse] and for which she did not reasonably have any expectation."
His former wife, on the other hand, contended that she was entitled to her percentage of the retirement allowance actually paid to her former spouse, regardless of the reasons why his pension may have been increased.
According to Justice Blydenburgh, Massaro's promotion resulted from tests taken or lists established after the commencement of the divorce proceedings. Justice Blydenburgh reasoned that since neither party had any expectation of future pension increases due to promotions, any promotion earned by Massaro after the commencement of the divorce would have resulted from his actions alone.
Accordingly, the Court ruled that Massaro's former spouse was not entitled to share in any increase to his pension at the time of his retirement resulting from increases as a result of any post divorce promotions. What should she receive? The amount she would have been entitled to receive had Massaro not been promoted and retired from service as a Sergeant.
In dollars and cents, this means that Massaro's former spouse will be only entitled to that portion of Massaro's retirement allowance based on his "final average salary" as a Sergeant, but calculated using his total period of PFRS member service.
Massaro's portion of his retirement allowance, on the other hand, will be determined on the basis of his post-promotion "final average salary," which, presumably, would be higher than his "Sergeant final average salary," and his total member service credit in the system.
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Salary determinations by political subdivisions of the State
Salary determinations by political subdivisions of the State
Kent v Town of Niskayuna, Appellate Division, 244 AD2d 829
Peter E. Kent, Commissioner of Public Works for the Town of Niskayuna in Schenectady County, anticipated receiving an increase in his compensation as a Grade 27 employee in accordance with the salary table set out in the Town's employee handbook. But the Town decided to (1) change some of his duties and responsibilities and (2) eliminate all salary grades 26 and higher from the salary table effective January 1, 1996. As a result, Kent's 1996 salary was set at the salary rate for a "Grade 25, Step 5" employee instead of the salary for "Grade 27, Step 4" as he expected.
When his grievance seeking compensation at Grade 27, Step 4 was rejected by the Town, Kent sued. He contended that the Town did not have the authority to reduce the salary grade of his position and its action was arbitrary and capricious. A Supreme Court justice agreed and ordered the Town to reinstate Kent to the Grade 27 level with back pay "due to the [Town's] failure to comply with Civil Service Law Section 75 before it adjusted [Kent's] salary." However, the Appellate Division overturned that ruling.
The Appellate Division said that the authority to fix the salary of a town employee had been delegated to the town board employing the employee [Section 27, Town Law]. Citing Stetter v Amherst, 46 AD2d 1006, the Appellate Division observed that "courts will not interfere with the actions of such legislative bodies or inquire into their underlying motives 'absent fraud, corruption or oppression.'"
The Court decided that the Town presented evidence "indicating a need to tend to budgetary concerns." This, "coupled with the changes [in Kent's responsibilities and Kent's] failure to sustain a showing that the [Town's] action was done in contravention of, or in an attempt to circumvent, the protections afforded by Civil Service Law Section 75," provided substantial evidence supporting the Town's action.
The lesson here is that a municipal public employer may reallocate a position to a different salary grade consistent with the duties and responsibilities of the position provided its action is supported by substantial evidence and is neither arbitrary nor capricious. The employee has the burden of persuading the courts to the contrary.
It should be remembered that Kent was a municipal employee. The classification and allocation of positions in the service of the State to a salary grade, and the reclassification and reallocation of such positions, is controlled by Article 8 of the Civil Service Law.
Article 8, however, does not apply to classification and allocation of positions established by a political subdivision of the State.
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Kent v Town of Niskayuna, Appellate Division, 244 AD2d 829
Peter E. Kent, Commissioner of Public Works for the Town of Niskayuna in Schenectady County, anticipated receiving an increase in his compensation as a Grade 27 employee in accordance with the salary table set out in the Town's employee handbook. But the Town decided to (1) change some of his duties and responsibilities and (2) eliminate all salary grades 26 and higher from the salary table effective January 1, 1996. As a result, Kent's 1996 salary was set at the salary rate for a "Grade 25, Step 5" employee instead of the salary for "Grade 27, Step 4" as he expected.
When his grievance seeking compensation at Grade 27, Step 4 was rejected by the Town, Kent sued. He contended that the Town did not have the authority to reduce the salary grade of his position and its action was arbitrary and capricious. A Supreme Court justice agreed and ordered the Town to reinstate Kent to the Grade 27 level with back pay "due to the [Town's] failure to comply with Civil Service Law Section 75 before it adjusted [Kent's] salary." However, the Appellate Division overturned that ruling.
The Appellate Division said that the authority to fix the salary of a town employee had been delegated to the town board employing the employee [Section 27, Town Law]. Citing Stetter v Amherst, 46 AD2d 1006, the Appellate Division observed that "courts will not interfere with the actions of such legislative bodies or inquire into their underlying motives 'absent fraud, corruption or oppression.'"
The Court decided that the Town presented evidence "indicating a need to tend to budgetary concerns." This, "coupled with the changes [in Kent's responsibilities and Kent's] failure to sustain a showing that the [Town's] action was done in contravention of, or in an attempt to circumvent, the protections afforded by Civil Service Law Section 75," provided substantial evidence supporting the Town's action.
The lesson here is that a municipal public employer may reallocate a position to a different salary grade consistent with the duties and responsibilities of the position provided its action is supported by substantial evidence and is neither arbitrary nor capricious. The employee has the burden of persuading the courts to the contrary.
It should be remembered that Kent was a municipal employee. The classification and allocation of positions in the service of the State to a salary grade, and the reclassification and reallocation of such positions, is controlled by Article 8 of the Civil Service Law.
Article 8, however, does not apply to classification and allocation of positions established by a political subdivision of the State.
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Eligibility of employee for unemployment insurance benefits following resignation
Eligibility of employee for unemployment insurance benefits following resignation
De Benedetto v Brookhaven, Appellate Division, 244 AD2d 740
Is an employee who agrees to resign rather than face disciplinary charges entitled to unemployment insurance benefits? As indicated by the De Benedetto decision by the Appellate Division, it depends on the circumstances.
Town of Brookhaven sanitation inspector Frank De Benedetto was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. The matter was "settled" when the De Benedetto agreed to resign and the Town agreed to withdraw the charges and to advise any prospective employers that he had "resigned for personal reasons." Although De Benedetto's application for unemployment insurance benefits initially was denied because "he had voluntarily left his employment without good cause," the Unemployment Insurance Appeals Board reversed, remanding the issue to the local office. The Board said that the question to be resolved was whether or not De Benedetto should be disqualified "because of misconduct."
The Appellate Division affirmed the Board's determination, holding that "there is precedent that a claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct." The Court cited La Rocca v New York City Department of Transportation, 59 NY2d 683, in support of its ruling.
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De Benedetto v Brookhaven, Appellate Division, 244 AD2d 740
Is an employee who agrees to resign rather than face disciplinary charges entitled to unemployment insurance benefits? As indicated by the De Benedetto decision by the Appellate Division, it depends on the circumstances.
Town of Brookhaven sanitation inspector Frank De Benedetto was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. The matter was "settled" when the De Benedetto agreed to resign and the Town agreed to withdraw the charges and to advise any prospective employers that he had "resigned for personal reasons." Although De Benedetto's application for unemployment insurance benefits initially was denied because "he had voluntarily left his employment without good cause," the Unemployment Insurance Appeals Board reversed, remanding the issue to the local office. The Board said that the question to be resolved was whether or not De Benedetto should be disqualified "because of misconduct."
The Appellate Division affirmed the Board's determination, holding that "there is precedent that a claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct." The Court cited La Rocca v New York City Department of Transportation, 59 NY2d 683, in support of its ruling.
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Union dues a factor in a divorce proceeding
Union dues a factor in a divorce proceeding
Elizabeth A. v Hector S., NYS Supreme Court, Judge Bednar, [Not selected for publication in the Official Reports]
Would you think that union dues could be a factor in a divorce proceeding? It was in the case of Elizabeth A. v Hector S.
Hector was told that he had to pay $157.00 bi-weekly as child support. He objected, contending that the hearing examiner had miscalculated his adjusted gross income by neglecting to deduct his union dues from his gross income.
Judge Bednar ruled the hearing officer's calculations were correct. While the federal Internal Revenue Code allows a taxpayer to deduct union dues as a "miscellaneous itemized deduction," the Family Court Act [FCA] does not. Although FCA allows a limited number of exclusions from income when determining child support, union dues is not one of the enumerated deductions allowed by the Act in determining a parent's child support obligations.
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Elizabeth A. v Hector S., NYS Supreme Court, Judge Bednar, [Not selected for publication in the Official Reports]
Would you think that union dues could be a factor in a divorce proceeding? It was in the case of Elizabeth A. v Hector S.
Hector was told that he had to pay $157.00 bi-weekly as child support. He objected, contending that the hearing examiner had miscalculated his adjusted gross income by neglecting to deduct his union dues from his gross income.
Judge Bednar ruled the hearing officer's calculations were correct. While the federal Internal Revenue Code allows a taxpayer to deduct union dues as a "miscellaneous itemized deduction," the Family Court Act [FCA] does not. Although FCA allows a limited number of exclusions from income when determining child support, union dues is not one of the enumerated deductions allowed by the Act in determining a parent's child support obligations.
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Sep 16, 2010
What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges
What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges
Response to an inquiry from a NYPPL reader
A NYPPL reader asks: If an individual served with disciplinary charges pursuant to Section 75 of the Civil Service does not file an answer to the charges and specifications, may the appointing authority impose the proposed penalty without holding a disciplinary hearing?
Although it appears that this specific question has yet to be litigated, a close reading of Section 75 suggests such an action by an employer would not survive judicial scrutiny.
Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.
In contrast, Section 75 is silent with respect to requiring the employee submit any answer to the charges.
This suggests that the individual may remain mute without jeopardizing his or her Section 75 rights.
Indeed, should the accused individual attend the disciplinary hearing and remain mute and present no defense, the employer would still be required to "prove" the alleged misconduct or incompetency.
Clearly, Section 75 provides that the burden of proving incompetency or misconduct ... (is) upon the person alleging the same. In other words, the failure of an employee to offer a defense does not absolve the employer of the duty to prove incompetence or misconduct before imposing disciplinary sanctions.
Indeed, it is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled.
Given that the courts require employers to conduct a disciplinary hearing being conducted pursuant to Civil Service Law Section 75 even if an employee fails to appear at the proceeding, it seems unlikely that the courts would approve imposing a penalty on an individual because he or she failed to answer the disciplinary charges filed by the appointing authority.
Moreover, under Section 75 the employee need not ask for a hearing; it is to be provided as a matter of right.
In contrast, Section 3020-a of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires that the individual affirmatively act and request a disciplinary hearing.
Under Section 3020-a, not only is the accused individual required to tell to the employer whether or not he or she wishes to have a disciplinary hearing scheduled, "the unexcused failure of the employee to notify the [district's] clerk or secretary of his or her desire for a hearing ... shall be deemed a waiver of the right to a hearing ...."
Section 3020-a also provides that in the event the teacher or school administrator does not ask for a Section 3020-a hearing, by design or otherwise, the school board is to determine the case and fix the penalty in accordance with Section 3020-a.4 of the Education Law.
The Section 3020-a model is followed in most alternative disciplinary procedures negotiated pursuant to the Taylor Law. If the employee does not file a timely disciplinary grievance, the appointing authority usually is authorized to impose the penalty proposed in the notice of discipline served on the individual without further action on its part and without referring the issue to arbitration.
What would be the result should the charging party not participate in an administrative proceeding? The decision in Armata and United Federation of Teachers, 30 PERB 4713, is instructive in this regard.
Rebeca Armata elected not to attend the scheduled PERB hearing. The PERB hearing officer dismissed her complaint on the ground that she had failed to prosecute it.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Response to an inquiry from a NYPPL reader
A NYPPL reader asks: If an individual served with disciplinary charges pursuant to Section 75 of the Civil Service does not file an answer to the charges and specifications, may the appointing authority impose the proposed penalty without holding a disciplinary hearing?
Although it appears that this specific question has yet to be litigated, a close reading of Section 75 suggests such an action by an employer would not survive judicial scrutiny.
Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.
In contrast, Section 75 is silent with respect to requiring the employee submit any answer to the charges.
This suggests that the individual may remain mute without jeopardizing his or her Section 75 rights.
Indeed, should the accused individual attend the disciplinary hearing and remain mute and present no defense, the employer would still be required to "prove" the alleged misconduct or incompetency.
Clearly, Section 75 provides that the burden of proving incompetency or misconduct ... (is) upon the person alleging the same. In other words, the failure of an employee to offer a defense does not absolve the employer of the duty to prove incompetence or misconduct before imposing disciplinary sanctions.
Indeed, it is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled.
Given that the courts require employers to conduct a disciplinary hearing being conducted pursuant to Civil Service Law Section 75 even if an employee fails to appear at the proceeding, it seems unlikely that the courts would approve imposing a penalty on an individual because he or she failed to answer the disciplinary charges filed by the appointing authority.
Moreover, under Section 75 the employee need not ask for a hearing; it is to be provided as a matter of right.
In contrast, Section 3020-a of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires that the individual affirmatively act and request a disciplinary hearing.
Under Section 3020-a, not only is the accused individual required to tell to the employer whether or not he or she wishes to have a disciplinary hearing scheduled, "the unexcused failure of the employee to notify the [district's] clerk or secretary of his or her desire for a hearing ... shall be deemed a waiver of the right to a hearing ...."
Section 3020-a also provides that in the event the teacher or school administrator does not ask for a Section 3020-a hearing, by design or otherwise, the school board is to determine the case and fix the penalty in accordance with Section 3020-a.4 of the Education Law.
The Section 3020-a model is followed in most alternative disciplinary procedures negotiated pursuant to the Taylor Law. If the employee does not file a timely disciplinary grievance, the appointing authority usually is authorized to impose the penalty proposed in the notice of discipline served on the individual without further action on its part and without referring the issue to arbitration.
What would be the result should the charging party not participate in an administrative proceeding? The decision in Armata and United Federation of Teachers, 30 PERB 4713, is instructive in this regard.
Rebeca Armata elected not to attend the scheduled PERB hearing. The PERB hearing officer dismissed her complaint on the ground that she had failed to prosecute it.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Collecting a paycheck could be a work related activity
Collecting a paycheck could be a work related activity
Dandola v Workers' Compensation Board, App Div, 244 AD2d 729
William Dandola, a New York City Corrections Officer, slipped and fell, injuring his knee. According to the decision, Dandola fell in front of the Rikers Island correction facility while running to pick up his paycheck on his day off. Did Dandola suffer a work related injury entitling him to workers' compensation benefits? Yes, said the Workers' Compensation Appeals Board in a decision affirmed by the Appellate Division.
Although the City Department of Correction argued that Dandola's injury occurred while he was engaged in "an essentially personal errand on his day off," the Appellate Division said that it has been held that "an employee may be within the scope of employment when collecting his or her pay check while off duty." In this instance, the Court decided that Dandola was injured in the course of his employment.
Why? Because, the Court explained, Correction's "paycheck distribution procedures" indicate that although arrangements to mail an employee's paycheck to his or her residence can be made, the expected procedure is for employees to pick up their paycheck in person. According, said the Court, the Appeals Board's holding that Dandola's injury arose out of and in the course of his employment is supported by substantial evidence.
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Dandola v Workers' Compensation Board, App Div, 244 AD2d 729
William Dandola, a New York City Corrections Officer, slipped and fell, injuring his knee. According to the decision, Dandola fell in front of the Rikers Island correction facility while running to pick up his paycheck on his day off. Did Dandola suffer a work related injury entitling him to workers' compensation benefits? Yes, said the Workers' Compensation Appeals Board in a decision affirmed by the Appellate Division.
Although the City Department of Correction argued that Dandola's injury occurred while he was engaged in "an essentially personal errand on his day off," the Appellate Division said that it has been held that "an employee may be within the scope of employment when collecting his or her pay check while off duty." In this instance, the Court decided that Dandola was injured in the course of his employment.
Why? Because, the Court explained, Correction's "paycheck distribution procedures" indicate that although arrangements to mail an employee's paycheck to his or her residence can be made, the expected procedure is for employees to pick up their paycheck in person. According, said the Court, the Appeals Board's holding that Dandola's injury arose out of and in the course of his employment is supported by substantial evidence.
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Acquisition of a private entity by a public employer
Acquisition of a private entity by a public employer
Neron v NYC Health and Hospitals Corp., Supreme Court [Not selected for publication in the Official Reports]
In January 1998, New York State Supreme Court Justice Shainswit considered a personnel issue that is rarely litigated -- the status of individuals who work for a private employer having a contract with a public entity to provide certain services and later become employees of that public entity.
About 125 hospital technicians working at the New York City's Jacobi Medical Center, a municipal hospital, sued their employer, the New York City Health and Hospitals Corporation (HHC), claiming that they were entitled to (1) permanent competitive status without first having to take and pass a competitive examination for their respective positions and (2) seniority "theretofore held by them as among themselves." The technicians argued that HHC's failure to provide for this was arbitrary, capricious, and an abuse of discretion, citing Section 7390 of the Unconsolidated Laws and Section 45 of the Civil Service Law as authority for this claim. As to the events leading to this lawsuit:
1. Initially HHC entered into an "Affiliation Agreement" with Albert Einstein College of Medicine under which Einstein supplied Jacobi with doctors and non-physician technical personnel.
2. In November 1991, Coney Island Medical Group ("CIMG") assumed the Einstein/Jacobi affiliation agreement and became the employer of Jacobi's non-physician technical staff under a Jacobi-CIMG affiliation agreement.
3. In September 1996, the Jacobi-CIMG affiliation agreement expired and HHC offered "civil service employment" to all non-physician technical staff who had been employed under the now expired affiliation agreement.
This resulted in HHC provisionally appointing about 106 individuals previously serving under the Jacobi-CIMG agreement to positions in the competitive class; the remaining individuals were placed in exempt class or non-competitive class positions.
The technicians pointed to Unconsolidated Laws Section 7390.2, which in relevant part provides that "employees of the voluntary hospitals and medical schools be continued in the employment of HHC without competitive examination, and shall be afforded permanent competitive status." They also claim that HHC violated Section 45.1 of the Civil Service Law, which deals with the takeover of a private employer by a public employer.
HHC, on the other hand, urged the Court to rule that Section 7390, enacted in 1973, did not require it to grant the 106 technicians permanent competitive status without such individuals first taking and passing a competitive examination because Section 7390 was intended to have limited application as it related to a specific, immediate, but [then] temporary concern. The Corporation also argued Section 45 was inapplicable because there was no acquisition of a private institution by a government agency.
The Court rejected HHC's contention that Section 7390 did not apply in this instance, finding that "it expressly applies to situations where HHC assumes the employment of individuals who previously provided medical services for HHC as employees of the voluntary hospitals and medical schools in the municipal hospitals of the City of New York." The Court noted that nothing in Section 7390 indicates that it was intended to apply only to the situation faced by HHC in 1973 and ceased to be in force thereafter.
Justice Shainswit explained his ruling by indicating that "to require that competitive examinations be given to any of the former employees of the voluntary hospitals and medical schools now performing such services would seriously interrupt the administration of health and medical services necessary for the general welfare of the people of the City and would thus be impracticable."
HHC, however, fared better with its arguments concerning the applicability of Section 45 in this situation. Why? Because, as the Court noted, there was no showing that functions in contrast to the mere assumption of employees' services, was involved and thus there was no acquisition of a private entity within the meaning of Section 45.
The bottom line: HHC was ordered to give permanent competitive appointments without competitive examination to the 106 technicians qualified for such an appointment.
"Contracting-out" for services may have unanticipated consequences. For example, EEOC, reacting to the increase in the use of a "contingent workforce," including temporary and contract employees, by employers, has concluded that "if both the staffing firm and its client have the right to control the worker, both can be liable for civil rights violations."
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Neron v NYC Health and Hospitals Corp., Supreme Court [Not selected for publication in the Official Reports]
In January 1998, New York State Supreme Court Justice Shainswit considered a personnel issue that is rarely litigated -- the status of individuals who work for a private employer having a contract with a public entity to provide certain services and later become employees of that public entity.
About 125 hospital technicians working at the New York City's Jacobi Medical Center, a municipal hospital, sued their employer, the New York City Health and Hospitals Corporation (HHC), claiming that they were entitled to (1) permanent competitive status without first having to take and pass a competitive examination for their respective positions and (2) seniority "theretofore held by them as among themselves." The technicians argued that HHC's failure to provide for this was arbitrary, capricious, and an abuse of discretion, citing Section 7390 of the Unconsolidated Laws and Section 45 of the Civil Service Law as authority for this claim. As to the events leading to this lawsuit:
1. Initially HHC entered into an "Affiliation Agreement" with Albert Einstein College of Medicine under which Einstein supplied Jacobi with doctors and non-physician technical personnel.
2. In November 1991, Coney Island Medical Group ("CIMG") assumed the Einstein/Jacobi affiliation agreement and became the employer of Jacobi's non-physician technical staff under a Jacobi-CIMG affiliation agreement.
3. In September 1996, the Jacobi-CIMG affiliation agreement expired and HHC offered "civil service employment" to all non-physician technical staff who had been employed under the now expired affiliation agreement.
This resulted in HHC provisionally appointing about 106 individuals previously serving under the Jacobi-CIMG agreement to positions in the competitive class; the remaining individuals were placed in exempt class or non-competitive class positions.
The technicians pointed to Unconsolidated Laws Section 7390.2, which in relevant part provides that "employees of the voluntary hospitals and medical schools be continued in the employment of HHC without competitive examination, and shall be afforded permanent competitive status." They also claim that HHC violated Section 45.1 of the Civil Service Law, which deals with the takeover of a private employer by a public employer.
HHC, on the other hand, urged the Court to rule that Section 7390, enacted in 1973, did not require it to grant the 106 technicians permanent competitive status without such individuals first taking and passing a competitive examination because Section 7390 was intended to have limited application as it related to a specific, immediate, but [then] temporary concern. The Corporation also argued Section 45 was inapplicable because there was no acquisition of a private institution by a government agency.
The Court rejected HHC's contention that Section 7390 did not apply in this instance, finding that "it expressly applies to situations where HHC assumes the employment of individuals who previously provided medical services for HHC as employees of the voluntary hospitals and medical schools in the municipal hospitals of the City of New York." The Court noted that nothing in Section 7390 indicates that it was intended to apply only to the situation faced by HHC in 1973 and ceased to be in force thereafter.
Justice Shainswit explained his ruling by indicating that "to require that competitive examinations be given to any of the former employees of the voluntary hospitals and medical schools now performing such services would seriously interrupt the administration of health and medical services necessary for the general welfare of the people of the City and would thus be impracticable."
HHC, however, fared better with its arguments concerning the applicability of Section 45 in this situation. Why? Because, as the Court noted, there was no showing that functions in contrast to the mere assumption of employees' services, was involved and thus there was no acquisition of a private entity within the meaning of Section 45.
The bottom line: HHC was ordered to give permanent competitive appointments without competitive examination to the 106 technicians qualified for such an appointment.
"Contracting-out" for services may have unanticipated consequences. For example, EEOC, reacting to the increase in the use of a "contingent workforce," including temporary and contract employees, by employers, has concluded that "if both the staffing firm and its client have the right to control the worker, both can be liable for civil rights violations."
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Sep 15, 2010
Second Circuit Court of Appeals explains why ADEA, Title VII, Equal Protection, LMRA and ERISA claims against the City had to be dismissed
Second Circuit Court of Appeals explains why ADEA, Title VII, Equal Protection, LMRA and ERISA claims against the City had to be dismissed
Vandermark v City of N.Y., 09-4746-cv (2nd Cir. 9-7-2010) [Summary Order*]
Marshall Vandermark was the lead plaintiff when a number of Environmental Police Officers (EPOs) employed by the City of New York sued the City alleging that the City had violated various state and federal laws with respect to their compensation and fringe benefits.
The district court dismissed the federal claims for failure to state a cause of action and declined to exercise supplemental jurisdiction over Vandermark's State Law claims.
Vandermark had filed the lawsuit claiming violations of the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the Labor Management Relations Act (LMRA), the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act as well as alleged violations of 42 U.S.C. §§ 1983 and 1985 [equal protection].
The Circuit Court affirmed the district court’s dismissal of Vandermark’s ADEA, Title VII, Equal Protection, and LMRA and ERISA claims.
The court explained that:
1. To establish their Title VII claim, a plaintiff would need to show employment discrimination on the basis of "race, color, religion, sex, or national origin" [see 42 U.S.C. § 2000e-2(a)(1)] but Vandermark alleged no such nexus.
2. To establish their ADEA claim, a plaintiff would need to show employment discrimination on the basis of age [see 29 U.S.C. § 623(a)(1)]. However, Vandermark complained of “unequal retirement benefits.” Such allegations do not encompass allegations of age discrimination said the court.
3. To establish §§ 1983 and 1985 equal protection claims, a plaintiff would need to show that there is no "reasonably conceivable state of facts that could provide a rational basis for the classification." The Circuit Court agreed with the district court's observation that "[t]here are numerous reasonable bases on which the City of New York might decide that NYPD officers and EPOs should receive different compensation and benefits, including the danger associated with the positions, the physical strain of the job, and the cost of living in the areas in which NYPD officers and EPOs work."
In addition, the court noted that neither the LMRA nor ERISA applies to political subdivisions of a State [see 29 U.S.C. § 152(2) (LMRA) and 29 U.S.C. §§ 1002(32), 1003(b) (ERISA)] and said that “It is clear to us . . . that the New York City Department of Health and Mental Hygiene is a `political subdivision' of New York that is exempt under [the statutes relied upon by Vandermark] ….”
As to Vandermark’s FLSA claim, the Circuit Court said that the district court “correctly applied the §207(k) exemption, [see 29 U.S.C. § 207(k)] as it was undisputed that EPOs [1] are "empowered . . .to enforce laws . . ., and to prevent and detect crimes"; [2] "ha[ve] the power to arrest"; and [3] "undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics," citing 29 C.F.R. § 553.211(a).
Finding no merit in Vandermark remaining arguments, the Circuit Court affirmed the district court's decision and dismissed his appeal.
* N.B. - Rulings by summary order do not have precedential effect.
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/doc/09-4746_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/hilite/
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Vandermark v City of N.Y., 09-4746-cv (2nd Cir. 9-7-2010) [Summary Order*]
Marshall Vandermark was the lead plaintiff when a number of Environmental Police Officers (EPOs) employed by the City of New York sued the City alleging that the City had violated various state and federal laws with respect to their compensation and fringe benefits.
The district court dismissed the federal claims for failure to state a cause of action and declined to exercise supplemental jurisdiction over Vandermark's State Law claims.
Vandermark had filed the lawsuit claiming violations of the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the Labor Management Relations Act (LMRA), the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act as well as alleged violations of 42 U.S.C. §§ 1983 and 1985 [equal protection].
The Circuit Court affirmed the district court’s dismissal of Vandermark’s ADEA, Title VII, Equal Protection, and LMRA and ERISA claims.
The court explained that:
1. To establish their Title VII claim, a plaintiff would need to show employment discrimination on the basis of "race, color, religion, sex, or national origin" [see 42 U.S.C. § 2000e-2(a)(1)] but Vandermark alleged no such nexus.
2. To establish their ADEA claim, a plaintiff would need to show employment discrimination on the basis of age [see 29 U.S.C. § 623(a)(1)]. However, Vandermark complained of “unequal retirement benefits.” Such allegations do not encompass allegations of age discrimination said the court.
3. To establish §§ 1983 and 1985 equal protection claims, a plaintiff would need to show that there is no "reasonably conceivable state of facts that could provide a rational basis for the classification." The Circuit Court agreed with the district court's observation that "[t]here are numerous reasonable bases on which the City of New York might decide that NYPD officers and EPOs should receive different compensation and benefits, including the danger associated with the positions, the physical strain of the job, and the cost of living in the areas in which NYPD officers and EPOs work."
In addition, the court noted that neither the LMRA nor ERISA applies to political subdivisions of a State [see 29 U.S.C. § 152(2) (LMRA) and 29 U.S.C. §§ 1002(32), 1003(b) (ERISA)] and said that “It is clear to us . . . that the New York City Department of Health and Mental Hygiene is a `political subdivision' of New York that is exempt under [the statutes relied upon by Vandermark] ….”
As to Vandermark’s FLSA claim, the Circuit Court said that the district court “correctly applied the §207(k) exemption, [see 29 U.S.C. § 207(k)] as it was undisputed that EPOs [1] are "empowered . . .to enforce laws . . ., and to prevent and detect crimes"; [2] "ha[ve] the power to arrest"; and [3] "undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics," citing 29 C.F.R. § 553.211(a).
Finding no merit in Vandermark remaining arguments, the Circuit Court affirmed the district court's decision and dismissed his appeal.
* N.B. - Rulings by summary order do not have precedential effect.
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/doc/09-4746_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/hilite/
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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.
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